Statcon Full Cases.docx

representations that the Court direct its Finance Officer to

has authorized the continuation of the deduction of the

Republic of the Philippines

discontinue the withholding of taxes from salaries of

withholding tax from the salaries of the members of the

SUPREME COURT

members of the Bench. Thus, on June 4, 1987, the

Supreme Court, as well as from the salaries of all other

Manila

Court en banc had reaffirmed the Chief Justice’s directive

members of the Judiciary. The Court hereby makes of

EN BANC

as follows:

record that it had then discarded the ruling in Perfecto vs.

July 23, 1987

RE: Question of exemption from income taxation. — The

Meer and Endencia vs. David, infra, that declared the

DAVID G. NITAFAN, WENCESLAO M. POLO, and

Court REAFFIRMED the Chief Justice’s previous and

salaries of members of the Judiciary exempt from payment

MAXIMO A. SAVELLANO, JR., petitioners,

standing directive to the Fiscal Management and Budget

of the income tax and considered such payment as a

vs.

Office of this Court to continue with the deduction of the

diminution of their salaries during their continuance in

COMMISSIONER OF INTERNAL REVENUE and THE

withholding taxes from the salaries of the Justices of the

office. The Court hereby reiterates that the salaries of

FINANCIAL OFFICER, SUPREME COURT OF THE

Supreme Court as well as from the salaries of all other

Justices and Judges are properly subject to a general

PHILIPPINES, respondents.

members of the judiciary.

income tax law applicable to all income earners and that

That should have resolved the question. However, with the

the payment of such income tax by Justices and Judges

filing of this petition, the Court has deemed it best to settle

does not fall within the constitutional protection against

MELENCIO-HERRERA, J.:

the legal issue raised through this judicial pronouncement.

decrease of their salaries during their continuance in

Petitioners, the duly appointed and qualified Judges

As will be shown hereinafter, the clear intent of the

office.

presiding over Branches 52, 19 and 53, respectively, of the

Constitutional Commission was to delete the proposed

A comparison of the Constitutional provisions involved is

Regional Trial Court, National Capital Judicial Region, all

express grant of exemption from payment of income tax to

called for. The 1935 Constitution provided:

with stations in Manila, seek to prohibit and/or perpetually

members of the Judiciary, so as to “give substance to

… (The members of the Supreme Court and all judges of

enjoin respondents, the Commissioner of Internal Revenue

equality among the three branches of Government” in the

inferior courts) shall receive such compensation as may be

and the Financial Officer of the Supreme Court, from

words of Commissioner Rigos. In the course of the

fixed by law, which shall not be diminished during their

making any deduction of withholding taxes from their

deliberations, it was further expressly made clear, specially

continuance in office … 1 (Emphasis supplied).

salaries.

with regard to Commissioner Joaquin F. Bernas’ accepted

Under the 1973 Constitution, the same provision read:

In a nutshell, they submit that “any tax withheld from their

amendment to the amendment of Commissioner Rigos,

The salary of the Chief Justice and of the Associate

emoluments

that the salaries of members of the Judiciary would be

Justices of the Supreme court, and of judges of inferior

constitutes a decrease or diminution of their salaries,

subject to the general income tax applied to all taxpayers.

courts

contrary to the provision of Section 10, Article VIII of the

This intent was somehow and inadvertently not clearly set

be decreased during

1987

their

forth in the final text of the Constitution as approved and

… 2 (Emphasis ours).

continuance in office, their salary shall not be decreased,”

ratified in February, 1987 (infra, pp. 7-8). Although the

And in respect of income tax exemption, another provision

even as it is anathema to the Ideal of an independent

intent may have been obscured by the failure to include in

in the same 1973 Constitution specifically stipulated:

judiciary envisioned in and by said Constitution.”

the General Provisions a proscription against exemption of

No salary or any form of emolument of any public officer or

It may be pointed out that, early on, the Court had dealt

any public officer or employee, including constitutional

employee, including constitutional officers, shall be exempt

with

officers, from payment of income tax, the Court since then

from payment of income tax.

G.R. No. 78780

RESOLUTION

or

compensation

Constitution

the

matter

mandating

as

judicial

that

administratively

officers

“(d)uring

in

response

to

shall

be

fixed

by

their

law,

which

continuance

3

shall in

not

office.

The provision in the 1987 Constitution, which petitioners

income, we tax the income, not the salary. Why do we

as to “give substance to equality among the three

rely on, reads:

have to give special privileges to the salary of justices?

branches in the government.

The salary of the Chief Justice and of the Associate

MR. CONCEPCION. It is the independence of the

Commissioner Florenz D. Regalado, on behalf of the

Justices of the Supreme Court, and of judges of lower

judiciary. We prohibit the increase or decrease of their

Committee on the Judiciary, defended the original draft

courts shall be fixed by law. During their continuance in

salary during their term. This is an indirect way of

and referred to the ruling of this Court in Perfecto vs.

office, their salary shall not be decreased. 4(Emphasis

decreasing their salary and affecting the independence of

Meer 8 that “the independence of the judges is of far

supplied).

the judges.

greater importance than any revenue that could come from

The 1987 Constitution does not contain a provision similar

MS. AQUINO. I appreciate that to be in the nature of a

taxing their salaries.” Commissioner Rigos then moved

to Section 6, Article XV of the 1973 Constitution, for which

clause to respect tenure, but the special privilege on

that the matter be put to a vote. Commissioner Joaquin G.

reason, petitioners claim that the intent of the framers is to

taxation might, in effect, be a violation of the principle of

Bernas stood up “in support of an amendment to the

revert to the original concept of “non-diminution “of salaries

uniformity in taxation and the equal protection clause. 6

amendment with the request for a modification of the

of judicial officers.

xxx

xxx

amendment,” as follows:

xxx

The deliberations of the 1986 Constitutional Commission

MR. OPLE. x x x

FR. BERNAS. Yes. I am going to propose an amendment

relevant to Section 10, Article VIII, negate such contention.

Of course, we share deeply the concern expressed by the

to the amendment saying that it is not enough to drop the

The draft proposal of Section 10, Article VIII, of the 1987

sponsor, Commissioner Roberto Concepcion, for whom we

phrase “shall not be subjected to income tax,” because if

Constitution read:

have the highest respect, to surround the Supreme Court

that is all that the Gentleman will do, then he will just fall

Section 13. The salary of the Chief Justice and the

and the judicial system as a whole with the whole armor of

back on the decision in Perfecto vs. Meer and in Dencia

Associate Justices of the Supreme Court and of judges of

defense against the executive and legislative invasion of

vs. David [should be Endencia and Jugo vs. David, etc., 93

the lower courts shall be fixed by law. During their

their independence. But in so doing, some of the citizens

Phil. 696] which excludes them from income tax, but rather

continuance in office, their salary shall not be diminished

outside, especially the humble government employees,

I would propose that the statement will read: “During their

nor subjected to income tax. Until the National Assembly

might say that in trying to erect a bastion of justice, we

continuance in office, their salary shall not be diminished

shall provide otherwise, the Chief Justice shall receive an

might end up with the fortress of privileges, an island of

BUT MAY BE SUBJECT TO GENERAL INCOME TAX.”IN

annual salary of _____________ and each Associate

extra territoriality under the Republic of the Philippines,

support of this position, I would say that the argument

Justice ______________ pesos. 5 (Emphasis ours)

because a good number of powers and rights accorded to

seems to be that the justice and judges should not be

During the debates on the draft Article (Committee Report

the Judiciary here may not be enjoyed in the remotest

subjected to income tax because they already gave up the

No. 18), two Commissioners presented their objections to

degree by other employees of the government.

income from their practice. That is true also of Cabinet

the provision on tax exemption, thus:

An example is the exception from income tax, which is a

members and all other employees. And I know right now,

MS. AQUINO. Finally, on the matter of exemption from tax

kind of economic immunity, which is, of course, denied to

for instance, there are many people who have accepted

of the salary of justices, does this not violate the principle

the entire executive department and the legislative.

of the uniformity of taxation and the principle of equal

And during the period of amendments on the draft Article,

income and yet are still subject to income tax. So, they are

protection of the law? After all, tax is levied not on the

on July 14, 1986, Commissioner Cirilo A. Rigos proposed

not the only citizens whose income is reduced by

salary but on the combined income, such that when the

that the term “diminished” be changed to “decreased” and

accepting service in government.

judge receives a salary and it is comingled with the other

that the words “nor subjected to income tax” be deleted so

7

employment in the government involving a reduction of

Commissioner Rigos accepted the proposed amendment

tax? The amendment proposed herein and accepted by

would be a strained construction to read into the provision

to the amendment. Commissioner Rustico F. de los Reyes,

the Committee now reads as follows: “During their

an exemption from taxation in the light of the discussion in

Jr. then moved for a suspension of the session. Upon

continuance

the Constitutional Commission.

resumption, Commissioner Bernas announced:

DECREASED”; and the phrase “nor subjected to income

With the foregoing interpretation, and as stated heretofore,

During the suspension, we came to an understanding with

tax” is deleted.9

the ruling that “the imposition of income tax upon the

the original proponent, Commissioner Rigos, that his

The debates, interpellations and opinions expressed

salary of judges is a diminution thereof, and so violates the

amendment on page 6,. line 4 would read: “During their

regarding the constitutional provision in question until it

Constitution”

continuance

office,

not

be

in Perfecto 14

vs.

Meer,13 as

affirmed

true intent of the framers of the 1987 Constitution, in

framers of the fundamental law, as the alter ego of the

will be a provision in the Constitution similar to Section 6 of

adopting it, was to make the salaries of members of the

people, have expressed in clear and unmistakable terms

Article

Judiciary taxable. The ascertainment of that intent is but in

the meaning and import of Section 10, Article VIII, of the

Constitution, which says:

keeping with the fundamental principle of constitutional

1987 Constitution that they have adopted

No salary or any form of emolument of any public officer or

construction that the intent of the framers of the organic

Stated otherwise, we accord due respect to the intent of

employee, including constitutional officers, shall be exempt

law and of the people adopting it should be given

the people, through the discussions and deliberations of

of

not

shall

DECREASED.”But this is on the understanding that there Provisions

shall

salary

in Endencia vs. David

General

salary

their

was finally approved by the Commission disclosed that the

the

their

office,

be

XV,

in

in

the

1973

10

must be declared discarded. The

from payment of income tax.

effect. The primary task in constitutional construction is to

their representatives, in the spirit that all citizens should

So, we put a period (.) after “DECREASED” on the

ascertain and thereafter assure the realization of the

bear their aliquot part of the cost of maintaining the

understanding that the salary of justices is subject to tax.

purpose of the framers and of the people in the adoption of

government and should share the burden of general

11

When queried about the specific Article in the General

the Constitution. it may also be safely assumed that the

income taxation equitably.

Provisions on non-exemption from tax of salaries of public

people in ratifying the Constitution were guided mainly by

WHEREFORE, the instant petition for Prohibition is

12

officers, Commissioner Bernas replied:

the explanation offered by the framers.

FR BERNAS. Yes, I do not know if such an article will be

Besides, construing Section 10, Articles VIII, of the 1987

found in the General Provisions. But at any rate, when we

Constitution, which, for clarity, is again reproduced

put a period (.) after “DECREASED,” it is on the

hereunder:

understanding that the doctrine in Perfecto vs. Meer and

The salary of the Chief Justice and of the Associate

Dencia vs. David will not apply anymore.

Justices of the Supreme Court, and of judges of lower

The amendment to the original draft, as discussed and

courts shall be fixed by law. During their continuance in

understood, was finally approved without objection.

office, their salary shall not be decreased. (Emphasis

THE

PRESIDING

OFFICER

(Mr.

Bengzon).

The

it is plain that the Constitution authorizes Congress to pass

under

Could

a law fixing another rate of compensation of Justices and

Commissioner Rosario Braid kindly take note that the

Judges but such rate must be higher than that which they

salaries

including

are receiving at the time of enactment, or if lower, it would

constitutional officers shall not be exempt from income

be applicable only to those appointed after its approval. It

of

Article officials

on of

General the

Provisions.

government

JOSE D. FILOTEO, JR., petitioner, vs. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION PANGANIBAN, J.:

supplied).

understanding, therefore, is that there will be a provision the

hereby DISMISSED.

A person under investigation for the commission of an offense is constitutionally guaranteed certain rights. One of the most cherished of these is the right “to have competent and independent counsel preferably of his choice”. The 1987 Constitution, unlike its predecessors, expressly covenants that such guarantee “cannot be waived except in writing and in the presence of counsel”. In the present case, petitioner claims that such

proscription against an uncounselled waiver of the right to counsel is applicable to him retroactively, even though his custodial investigation took place in 1983 -- long before the effectivity of the new Constitution. He also alleges that his arrest was illegal, that his extrajudicial confession was extracted through torture, and that the prosecution’s evidence was insufficient to convict him. Finally, though not raised by petitioner, the question of what crime -brigandage or robbery -- was committed is likewise motu propio addressed by the Court in this Decision. Challenged in the instant amended petition is the Decision[1] of respondent Sandiganbayan[2] in Criminal Case No. 8496 promulgated on June 19, 1987 convicting petitioner of brigandage, and the Resolution[3] promulgated on July 27, 1987 denying his motion for reconsideration.

The Facts

Petitioner Jose D. Filoteo, Jr. was a police investigator of the Western Police District in Metro Manila, an old hand at dealing with suspected criminals. A recipient of various awards and commendations attesting to his competence and performance as a police officer, he could not therefore imagine that one day he would be sitting on the other side of the investigation table as the suspected mastermind of the armed hijacking of a postal delivery van. Along with his co-accused Martin Mateo, Jr. y Mijares, PC/Sgt. Bernardo Relator, Jr. y Retino, CIC Ed Saguindel y Pabinguit, Ex-PC/Sgt. Danilo Miravalles y Marcelo and civilians Ricardo Perez, Reynaldo Frias, Raul Mendoza, Angel Liwanag, Severino Castro and Gerardo Escalada, petitioner Filoteo was charged in the following Information:[4] “That on or about the 3rd day of May, 1982, in the municipality of Meycauyan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, two of whom were armed with guns, conspiring, confederating together and helping one another, did then and there wilfully, unlawfully and feloniously with intent of gain and by means of violence, threat and intimidation, stop the Postal Delivery Truck of

the Bureau of Postal while it was travelling along the MacArthur Highway of said municipality, at the point of their guns, and then take, rob and carry away with them the following, to wit: 1) Postal Delivery Truck 2) Social Security System Medicare Checks and Vouchers 3) Social Security System Pension Checks and Vouchers 4) Treasury Warrants 5) Several Mail Matters from abroad in the total amount of P253,728.29 more or less, belonging to US Government Pensionados, SSS Pensionados, SSS Medicare Beneficiaries and Private Individuals from Bulacan, Pampanga, Bataan, Zambales andOlongapo City, to the damage and prejudice of the owners in the aforementioned amount. Contrary to law.” On separate dates, accused Filoteo, Mateo, Saguindel, Relator and Miravalles, assisted by their respective counsel, pleaded not guilty. Their co-accused Perez, Frias, Mendoza, Liwanag, Castro and Escalada were never arrested and remained at large. Accused Mateo escaped from police custody and was tried in absentia in accordance with Article IV, Section 19 of the 1973 Constitution. Accused Saguindel and Relator failed to appear during the trial on February 21, 1985 and on March 31, 1986, respectively, and were thus ordered arrested but remained at large since then. Like in the case of Mateo, proceedings against them were held in absentia.[5] Only Filoteo filed this petition, after the respondent Court rendered its assailed Decision and Resolution. Before trial commenced and upon the instance of the prosecution for a stipulation of facts, the defense admitted the following:[6]

“The existence of the bound record of Criminal Case No. 50737-B-82, consisting of 343 pages from the Bulacan CFI (Exhibit A); in 1982 or thereabouts, accused Bernardo Relator was a PC Sergeant at Camp Bagond Diwa, Bicutan, Metro Manila; as such PC Sergeant, accused Relator was issued a service revolver, Smith & Wesson Revolver, 32 (sic), with Serial No. 11707 (Exhibit B) and holster (Exhibit B-1) with six (6) live ammo (Exhibit B-2); in 1982 or thereabouts, accused Eddie Saguindel was a PC Constable First Class; on May 30, 1982, accused Saguindel, together with accused Relator and Danilo Miravalles, a former PC Sergeant, was invited for investigation in connection with the hijacking of a delivery van by the elements of the Special Operations Group, PC, and the three availed of their right to remain silent and to have counsel of their choice, as shown by their Joint Affidavit (Exhibit A-20); and the existence of the sworn statement executed by accused Martin Mateo (Exhibit A11) as well as the Certification dated May 30, 1982, subject to the qualification that said document was made under duress.” The prosecution sought to prove its case with the testimonies of Bernardo Bautista, Rodolfo Miranda, Capt. Rosendo Ferrer, M/Sgt. Noel Alcazar and Capt. Samuel Pagdilao, Jr.6-a and the submission of Exhibits A to K. In their defense, accused Filoteo and Miravalles presented their respective testimonies plus those of Gary Gallardo and Manolo Almogera. Filoteo also submitted his Exhibits 1-14-Filoteo, but Miravalles filed no written evidence. Thereafter, the prosecution proffered rebuttal evidence and rested with the admission of Exhibits A-16-a, A-31 and L.

Evidence for the Prosecution

At about 6:30 in the morning of May 3, 1982, Bureau of Post mail van no. MVD 02 left San Fernando, Pampanga to pick up and deliver mail matters to and from Manila. On board the vehicle were Nerito Miranda, the driver, and two couriers named Bernardo Bautista and Eminiano Tagudar who were seated beside the driver. They arrived at around 9:40 that morning at the AirmailDistribution Center of the Manila International Airport where they were issued

waybills[7] for the sacks of mail they collected. They then proceeded to the Central Post Office where they likewise gathered mail matters including 737 check letters[8] sent by the United States Embassy. All the mail matters were placed inside the delivery van, and its door padlocked. As they had to deliver mail matters to several towns of Bulacan, they took the MacArthur Highway on the return trip to Pampanga. When they reached Kalvario, Meycauayan, Bulacan at about4:30 in the afternoon, an old blue Mercedes Benz sedan[9] overtook their van and cut across its path. The car had five (5) passengers -three seated in front and two at the back. The car’s driver and the passenger beside him were in white shirts; the third man in front and the person immediately behind him were both clad in fatigue uniforms, while the fifth man in the back had on a long-sleeved shirt.[10] Two of the car passengers aimed an armalite and a hand gun at driver Nerito Miranda as someone uttered, “Are you not going to stop this truck?”[11] Frightened, Miranda pulled over and stopped the van’s engine. Alighting from the car, the armed group identified themselves as policemen.[12] They ordered the postal employees to disembark from the van. As he stepped out of the van, Miranda took the ignition key with him, but when threatened, he surrendered it to one of the car passengers.[13] The three postal employees were then ordered to board the Benz. As he was about to enter the car, Bautista looked back and saw one of the malefactors, who turned out to be Reynaldo Frias, going up the van. Inside the car, the three delivery employees were ordered to lower their heads. They sat between two of their captors at the back of the car while two others were in front. Later, Nerito Miranda asked permission to straighten up as he was feeling dizzy for lack of air. As he stretched, he caught a glimpse of the pimply face of the man to his left. He also recognized the driver who had glanced back. These men turned out to be Angel Liwanag and Reynaldo Frias, respectively.[14] As the car started moving, Bautista complained about feeling “densely confined”. He was allowed to raise his head but with eyes closed. However, he sneaked a look and recognized the driver of the car as Raul Mendoza and the fellow beside him who poked a “balisong” at him as Angel Liwanag. The man in uniform on the front seat

was Eddie Saguindel. Earlier, as he was about to enter the car, Bautista looked back and recognized Frias.[15] These incidents yielded the pieces of information critical to the subsequent identification of Mendoza, Liwanag, Saguindel and Frias in the line-up of suspects at Camp Crame later on. The car seemed to move around in circles. When it finally came to a stop, the captured men discovered that they were along Kaimito Road in Kalookan City. They were made to remove their pants and shoes and then told to run towards the shrubs with their heads lowered. Upon realizing that the hijackers had left, they put on their pants and reported the incident to the Kalookan Police Station. The Security and Intelligence Unit of the Bureau of Posts recovered the postal van at the corner of Malindang and Angelo Streets, La Loma, Quezon City on May 4, 1982. Discovered missing were several mail matters,[16] including checks and warrants, along with the van’s battery, tools and fuel.[17] In a letter-request dated May 6, 1982 to then Col. Ramon Montaño, then Postmaster General Roilo S. Golez sought the assistance of the Special Operations Group (SOG) of the Philippine Constabulary in the investigation of the hijacking incident.[18] Responding to the request, the SOG, which was tasked to detect, investigate and “neutralize” criminal syndicates in Metro Manila and adjacent provinces, organized two investigative teams. One group was led by Capt. Rosendo Ferrer and st the other by 1 Lt. Samuel Pagdilao. Initially, they conducted a “massive intelligence build-up” to monitor the drop points where the stolen checks could be sold or negotiated. On May 28, 1982, the SOG received a tip from a civilian informer that two persons were looking for buyers of stolen checks. Capt. Ferrer requested the informer to arrange a meeting with them. The meeting materialized at about 9:00 P.M. of May 29, 1982 at the Bughaw Restaurant in Cubao, Quezon City. With cash on hand, Capt. Ferrer posed as the buyer. The informer introduced him to Rey Frias and Rafael Alcantara. Frias in turn showed Capt. Ferrer a sample Social Security System (SSS) pension check and told him that the bulk of the checks were in the possession of their companions in Obrero, Tondo, Manila. After some negotiations, they agreed to proceed to Tondo. Then as they boarded a car,

Capt. Ferrer introduced himself and his companions as lawmen investigating the hijacking incident. Shocked and distressed, Frias calmed down only when assured that his penalty would be mitigated should he cooperate with the authorities. Frias thus volunteered to help crack the case and lead the SOG team to Ricardo Perez and Raul Mendoza. Capt. Ferrer instructed Lt. Pagdilao, his assistant operations officer who was in another car during the mission, to accompany Frias to Obrero, Tondo while he escorted Alcantara to their headquarters at Camp Crame. On the way to the headquarters, Alcantara denied participation in the hijacking although he admitted living with Martin Mateo who allegedly was in possession of several checks. Alcantara was turned over to the investigation section of the SOG for further questioning. Meanwhile, Lt. Pagdilao’s group was able to corner Ricardo Perez in his house in Tondo. Confronted with the hijacking incident, Perez admitted participation therein and expressed disappointment over his inability to dispose of the checks even after a month from the hijacking. He surrendered the checks in his possession to Lt. Pagdilao.[19] An hour and a half later, Capt. Ferrer received information over their two-way radio that Ricardo Perez and Raul Mendoza were in Lt. Pagdilao’s custody. Capt. Ferrer ordered that, instead of returning to headquarters, Lt. Pagdilao and his companions should meet him in Quirino, Novaliches to apprehend Martin Mateo. They met at the designated place and proceeded to Gulod, Novaliches arriving there at about 10:30 P.M. of May 29, 1982. Walking atop a ricefield dike to the house of Mateo, they noticed two men heading in their direction. Perez identified them as Martin Mateo and Angel Liwanag. The latter threw something into the ricefield which, when retrieved, turned out to be bundles of checks wrapped in cellophane inside a plastic bag.[20] As the two were about to board the SOG teams's car, Mateo said, “Sir, kung baga sa basketball, talo na kami. Ibibigay ko yong para sa panalo. Marami pa akong tseke doon sa bahay ko, sir, kunin na natin para di na natin babalikan.”[21] Capt. Ferrer accompanied Mateo to his house where they retrieved several other checks in another plastic bag.

On the way to the SOG headquarters in Camp Crame, Mateo and Liwanag admitted participation in the postal hijacking. At a confrontation with Perez and Mendoza, all four of them pointed to petitioner, Jose D. Filoteo, Jr., as the mastermind of the crime. Consequently, Capt. Ferrer directed Lt. Pagdilao to accompany Mateo to the house of petitioner in Tondo, Manila. The lawmen found petitioner at home. Upon being invited to Camp Crame to shed light on his participation in the hijacking, petitioner was dumbfounded (“parang nagulat”). Pursuant to standard operating procedure in arrests, petitioner was informed of his constitutional rights,[22] whereupon they proceeded to Camp Crame. However, the group, including petitioner, returned to the latter’s place to recover the loot. It was “in the neighborhood,” not in petitioner’s house, where the authorities located the checks.[23] The authorities confronted Filoteo about his participation in the hijacking, telling him that Frias, Mendoza and Perez had earlier volunteered the information that petitioner furnished the Benz used in the hijacking. Thereupon, Filoteo admitted involvement in the crime and pointed to three other soldiers, namely, Eddie Saguindel, Bernardo Relator and Jack Miravalles (who turned out to be a discharged soldier), as his confederates. At 1:45 in the afternoon of May 30, 1982, petitioner executed a sworn statement in Tagalog before M/Sgt. Arsenio C. Carlos and Sgt. Romeo P. Espero which, quoted in full, reads as follows: “BABALA: -- Nais kong ipaalam sa iyo, Patrolman Filoteo, na ang dahilan ng pagsisiyasat na ito ay tungkol sa isang kasong Robbery-in-Band/Hi-Jacking na naganap noong ika-3 ng Mayo 1982 doon sa Meycauyan, Bulacan, mga bandang alas-4:00 ng hapon, humigit-kumulang, kung saang maraming tsekeng US, tseke ng BIR at iba pang mga personal na tseke ang nabawi mula sa iyo. Nais ko ring ibigay sa iyo ang babala alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas, kagaya ng mga sumusunod: a.

Na ikaw ay may karapatang tumahimik;

b.

Na ikaw ay may karapatang kumuha ng isang abugadong sarili mong pili upang may magpapayo sa iyo habang ikaw ay sinisiyasat;

c.

Na ikaw ay may karapatang huwag sumagot sa mga katanungang maaring makasira sa iyo sa dahilang anumang iyong isalaysay ay maaaring gamitin pabor or laban sa iyo sa kinauukulang hukuman;

Ssg., PC WAC (PC)" 3.

d.

Na ikaw ay walang maibabayad sa isang abugado, ako mismo ang makipag-ugnayan sa CLAO-IBP upang ikaw ay magkaroon ng isang abugadong walang bayad. 1.

TANONG:- Ang mga bagay-bagay bang akin nang naipaliwanag sa iyo ay iyong lubos na naiintindihan at nauunawaan?

SAGOT:- Opo. 2.

T:- Handa mo bang lagdaan ang ilalim ng katanungan at sagot na ito bilang katibayan na iyo ngang naiintindihan ang iyong mga karapatan at gayun na rin sa dahilan ng pagsisiyasat na ito, at ikaw din ay nakahanda ngang magbigay ng isang malaya at kusang-loob na salaysay, sumagot sa mga katanungan at sumusumpang lahat ng iyong isasalaysay ay pawang mga katotohanan lamang?

S:- Opo, pipirma ako Ser. (Sgd.) JOSE D. FILOTEO (Affiant)

T:- Maari bang sabihin mong muli ang iyong buong pangalan, edad at iba pang bagay-bagay na maaring mapagkakikilalanan sa iyo?

S:- Jose Filoteo y Diendo, 30-anyos, may asawa, isang Patrolman ng Western Police District, Metropolitan Police Force na kasalukuyang nakatalaga sa General Assignment Section, Investigation Division ng naturang Distrito ng Pulisya at kasalukuyang nakatira sa No. 810 Cabesas St., Dagupan, Tondo, Manila. 4.

T:- Kailan ka pa na-appoint sa service bilang isang Kabatas?

S:- Noon pong October 1978, hindi ko maalaala ang exactong petsa, noong ako ay mapasok sa serbisyo. 5.

T:- Kailan ka pa naman na-assign sa GAS, WPD, MPF?

S:- Noon lamang pong January 1982. 6.

T:- Patrolman Filoteo, ikaw ba ay tubong saang bayan, lungsod or lalawigan?

S:- Pagkakaalam ko sa tatay ko ay Bulacan samantalang ang aking ina naman ay Bisaya, pero ako ay ipinanganak na sa Maynila noon July 17, 1951. 7.

T:- Ano naman ang natapos mong kurso sa pag-aaral?

S:- Undergraduate ako ng BS Criminology sa PCCr, dahil hindi ko natapos ang second semester ng 4th year ko.

MGA SAKSI: (Sgd.) (Sgd.) ROMEO P. ESPERO SA L. TOLENTINO

C1C

8.

THERE

T:- Ano naman ang iyong specific designation sa GAS, ID, WPD-MPF?

S:- Sa Follow-Up Unit ako.

9.

T:- At bilang miyembro ng follow-up unit ng GAS, ano naman ang iyong mga specific duties?

S:- Kami po ang magsasagawa ng follow-up kung may mga at large sa mga suspects namin sa mga kasong hawak ng investigation. 10. T:- Noong ika-3 ng Mayo 1982, mga bandang alas-4:00 ng hapon humigit kumulang, saan ka naroroon at ano ang iyong ginagawa? S:- Nasa Plaza Lawton ho kami, eh, at inaantay na namin iyong hinayjack namin na Philippine Mail delivery van. 11. T:- Wika mo’y kami, sinu-sino tinutukoy mong mga kasamahan?

ang

S:- Si Carding Perez, ho; si Junior ho (Affiant pointed to Martin Mateo, Jr. who was seated in the investigation room and asked the name and was duly answered: Martin Mateo, Jr.); si Rey Frias; Raul Mendoza; Angelo Liwanag at ang mga taga LRP ng PC Brigade na sina Sgt. Ed Saguindel, Sgt. Dan Miravales at isa pang Sergeant na ang alam ko lang sa kanya ay JUN ang tawag namin. Walo (8) (corrected and initialled by affiant to read as ‘SIYAM [9]’) kaming lahat doon noon at ang mga gamit naman naming kotse noon ay ang kotse ng kumpare kong si Rudy Miranda na isang Mercedes Benz na may plakang NMJ-659 kung saang ang driver namin noon ay si Raul Mendoza (corrected and initialled by affiant to read as ‘AKO’) at ang mga kasama naman naming sakay ay sina Angelo Liwanag, Sgt. Ed Saguindel at Sgt. Jun na parehong taga-LRP (affiant added and initialled this additional fact: ‘AT RAUL MENDOZA’). Ang isang kotse namang gamit namin ay pag-aari daw ng pinsan ni Carding Perez na kanya na rin mismong minamaneho na isang Lancer na dirty-white ang kulay at ang

mga sakay naman ni Carding Perez ay sina Junior Mateo, Rey Frias at Sgt. Dan Miravalles ng LRP rin. Pero may kasama pa kaming contact ni Carding Perez na taga-loob ng Post Office na sina Alias NINOY na isang dispatcher at Alias JERRY, dahil ang mastermind dito sa trabahong ito ay si Carding PEREZ at kami naman ng mga sundalong tagaLRP ay kanila lamang inimporta upang umeskort sa kanila sa pag-hijack ng delivery van. 12. T:- Anong oras naman noong umalis ang delivery van ng Post Office patungong norte? S:- Kung hindi ako nagkakamali ay nasa pagitan na noon ng alas-4:00 hanggang alas-5:00 ng hapon. 13. T:- Isalaysay mo nga ng buong-buo kung ano ang mga naganap noong hapon na iyon? S:- Noon pong lumakad na ang delivery van ng Central Post Office, sinundan na namin, una ang van, sumunod ang Lancer at huli ang Mercedes Benz namin. Pagdating namin sa Malinta, Valenzuela Metro Manila ay nagpalit kami ng puwesto sa pagsunod, van naman ngayon, sunod ang Mercedes Benz at huli na ang Lancer. Noong makapasok na kami ng boundary ng Meycauyan, Bulacan ay kumuha na kami ng tiyempo at noon makatiyempo kami ay kinat namin ang delivery van. Tumigil naman ito at bumaba kaagad sina Sgt. Ed Saguindel at Sgt. Jun ng LRP dahil sila noon ang may hawak ng kanilang Armalite Rifle pero may service pa silang maiksing baril. Pinababa nila ang tatlong maydala ng delivery van at pinasakay sa Mercedes Benz, habang nakatutok ang kanilang mga baril sa kanila. Ako naman ay bumaba na sa aming kotse at sumakay ng delivery van at ako na

mismo ang nagmaneho at sinamahan naman ako nina Junior Mateo at si Rey Frias, tatlo (3) rin kaming pumalit sa puwesto noong tatlong (3) taga-Post Office na maydala ng delivery van. Nag-Utturn (sic) kami ngayon at ibinalik na namin sa Manila ang van. Iyong Mercedes Benz na minamaneho pa rin ni Raul Mendoza ay dumeretso pa norte samantalang ang Lancer naman ay nag-U-turn din at sumunod sa amin. Noong makarating na kami sa Malinta, Valenzuela, Metro Manila ay inunahan na kami ng Lancer at iyon na nga, parang follow the leader na dahil siya na noon ang aming guide. 14. T:- Ipagpatuloy pagsasalaysay?

mo

ang

iyong

S:- Dumeretso kami ngayon sa may Obrero, sa bahay mismo nina Carding Perez, at noong nakarating ng kami roon ay iniyatras ko na ang van sa kanilang garahe at doon ay ibinaba namin lahat ang mga duffle bag, hindi ko na po alam kung ilan lahat iyon, na siyang laman ng delivery van at pagkatapos ay umalis kaming muli ng mga kasama ko rin sa van papuntang Quezon City kung saan namin inabandon ang delivery van. Sa Retiro ho yata iyong lugar na iyon, kung hindi ako nagkakamali. 15. T:- Ano ang mga sumunod na nangyari? S:- Sumakay kami ngayon ng taksi at bumalik na kami kina Carding Perez sa may bahay nila sa Obrero, Tondo, Manila at inabutan na namin sila na nagkakarga na noong mga duffle bag sa (sic), madilim na ho noon, sa isang kotseng mamula-mula o orange na Camaro at isa pang Mercedes Benz na brown, dahil ang Lancer ay isinoli na raw nila sa may-ari. Dinala nila ngayon ang mga duffle bag sa Bocaue, Bulacan, iyon kasi ang usapan namin noon dahil sumilip lamang ako noon at kasama ko si

Carding Perez, kami naman ngayon ay pumunta sa bahay nina Rudy Miranda sa San Marcelino, Malate, Manila na sakay ng isang Toyota Corona na brown na si Carding Perez ang nagmaneho. Pagdating namin doon sa kina Rudy Miranda ay naroon na rin noon ang Mercedes Benz na ginamit namin, pero wala na ang crew ng delivery van dahil ibinaba at iniwanan daw nila sa Caloocan City. Ang naroroon na lamang noon ay sina Angelo Liwanag, si Raul Mendoza, si Sgt. Ed Saguindel at si Sgt. Jun na parehong taga-LRP. Naiwan na noon ang Mercedes Benz namin doon kina Rudy Miranda at iniwan na rin ang susi doon sa kamag-anak, dahil hindi nila alam ang trabahong ito. Sumakay na iyong apat naming kasama sa Toyota Corona na sakay namin at inihatid namin sina Sgt. Saguindel at Sgt. Jun doon sa tinitirhan nitong huling nabanggit na sundalo doon sa malapit sa Del Pan Bridge sa may Recto Avenue sa San Nicolas yata iyon sa Manila. Kami naman ngayong apat, sina Carding Perez, Angelo Liwanag at si Raul Mendoza ay tumuloy na sa Bocaue, Bulacan. Dumaan kami sa North Diversion Road at paglabas namin sa exit papuntang Bocaue, Bulacan ay hindi na kalayuan doon, hindi ko alam ang lugar pero alam kong puntahan. Bahay daw yata ng kamaganak ni Carding Perez iyon pero hindi ko alam ang pangalan. Naroon na ngayon ang buong tropa, maliban sa mga dalawang sundalong naihatid na namin sa may Manila, at may mga nadagdag pang ibang mukha pero hindi ko ito mga kakilala. Si JACK o Sgt. Dan Miravalles ay naroon din noon. Kumain kami, pagkatapos ay nagbukasan na ng mga duffle bag. Iyon na nga,nakita na namin ang mga tsekeng ito, (Affiant pointed to the checks he voluntarily surrendered) at aming inihiwalay ngayon sa mga sulat na naroon na sinunog lahat pagkatapos

doon sa bahay ni Junior Mateo sa Novaliches. Di magdamag ngayon ang trabaho namin, kinabukasan ay kanyakanyang uwian na, pagkatapos ay pahinga. Kinabukasan muli, gabi, inilipat na namin doon sa bahay ni Junior Mateo ang mga tsekeng ito (Affiant again referred to said checks). Isinakay namin noon sa isang cargo truck na pag-aari din daw nina Carding. Iyong mga tsekeng iyan ngayon ay nakalagay noon doon sa isang sikretong compartment sa gitna ng truck, doon ba sa may chassis. Sikretong compartment iyon, na mahirap mahalata. 16. T: Ikaw ba naman ay mayroong dalang baril noon at kung ganoon, sabihin mo nga kung anong uring baril iyon? S:- Wala po akong baril, Ser. 17. T:- Paano naman napunta ang mga tsekeng ito (the checks recovered from the Affiant was referred to) sa iyo? S:- E, di ganoon na nga ho, habang tumatagal ay umiinit ang situwasyon sa aming grupo, dahil iyong partehan sana namin ay puro pangako ang nangyari. Kaya napagpasiyahan namin na hatiin na lamang iyong mga tseke upang walang onsehan sa amin. Ito ngayon ay parte namin nina Sgt. Ed Saguindel, Sgt. Dan Miravalles Alias JACK at ni Sgt. Jun, dahil noong una ay doon muna sa amin ito nakatago (The checks recovered from the Affiant was referred to). Pero habang tumatagal ay umiinit at nalaman namin pati na may alarma na, kaya’t inilipat namin doon sa may Raxa Bago sa may likod ng Alhambra Cigar & Cigarette Factory sa Tondo, Manila at akin munang ipinatago sa isang kumare ko doon, pansamantala, pero hindi alam nitong kumare ko ang laman noon dahil mahigpit kong ipinagbilin na huwag nilang bubuksan. Doon na rin namin

kinuha iyon noong isurender ko ang mga tsekeng ito kagabi, at hanggang sa kinuha na namin ang supot na ito (the checks placed in a plastic bag was again referred to) ay wala pa rin kamalay-malay ang kumare ko. 18. T:- Iyong sinasabi mong mga kontak nina Carding Perez sa Central Post Office, mga kakilala mo rin ba ang mga ito? S:- Iyong araw na lamang na iyon ko sila nakita, dahil maghapon ko noon silang nakikita, itong si Alias NINOY lamang ang dispatcher, dahil palabas-labas siya noon at nakikipag-usap kina Carding Perez, Raul Mendoza at saka si Rey Frias. Makikilala ko itong si Alias NINOY kung makita ko siyang muli. 19. T:- Sino naman ang kumontak sa iyo upang sumama sa trabahong ito? S:- Si Junior Mateo po, ipinakilala niya ako kina Carding at sa buong tropa na namin. 20. T:- Pansamantala ay wala na muna akong itatanong pa sa iyo, mayroon ka bang nais na idagdag, bawasin o palitan kaya sa salaysay na ito? S:- Wala na po. 21. T:- Handa mo bang lagdaan ang iyong salaysay na ito bilang patotoo sa katotohanan nito nang hindi ka pinilit, sinaktan or pinangakuan kaya ng anuman upang lumagda lamang? S:- Opo. WAKAS NG SALAYSAY: . . . . . /ac

MGA SAKSI SA LAGDA: (Sgd.) SSG ROMEO P. ESPERO PC (Sgd.) CIC THERESA TOLENTINO WAC (PC)”[24] Petitioner executed two other documents on the same day, May 30, 1982. One was a certification stating that he voluntarily surrendered “voluminous assorted US checks and vouchers,” that because of the “large number of pieces” of checks, he affixed his signature upon the middle portion of the back of each check “to serve as identification in the future, prior to the completion of its proper inventory and listing conducted by elements of SOG” in his presence, and that he “guided the elements of SOG” to the residence of Rodolfo C. Miranda, the owner of the sky-blue Mercedes Benz car which was surrendered to the SOG Headquarters.[25] The other document was a sworn statement wherein petitioner attested to his waiver of the provisions of Article 125 of the Revised Penal Code and the following facts: (a) that he was apprised of his constitutional rights under Section 20, Article IV of the (1973) Constitution, that he understood all his rights thereunder, and that the investigators offered him counsel from the CLAO-IBP but he refused to avail of the privilege; (b) that he was arrested by SOG men in his house at around 11:00 p.m. of May 29, 1982 “sa dahilang ako ay

kasangkot sa. pagnanakaw ng mga US Treasury Warrants, SSS Pension ) Checks and Vouchers at SSS Medicare Checks and JVouchers mula sa delivery van ng Philippine Mail;” (c) that O the SOG men confiscated from him numerous checks S and a Mercedes Benz 200 colored skyblue, and (d)E that he was not hurt or maltreated nor was anything taken from him which was not duly receipted for.[26] D . As certified to by petitioner (in the above described document), F he led the SOG operatives to the house of Rodolfo Miranda on Singalong where the latter admitted I that petitioner L was his friend. He denied, however, having knowledge that O his car was used in the hijacking until the authorities came to his house. According to Miranda, he T was made E to believe that his car would be used for surveillance Opurposes because petitioner’s jeep was not available. The car was not returned until the evening following that when it was borrowed.[27] After the trip to Miranda’s house, petitioner informed the investigators that some more checks could be recovered from his kumare. Said checks were retrieved and turned over to headquarters along with the car surrendered by Miranda who later executed a sworn statement dated May 31, 1992 at the SOG.[28] Upon learning of the whereabouts of Miravalles, Eddie Saguindel and Bernardo Relator, the team of Capt. Ferrer proceeded to Taguig, Metro Manila in the afternoon of May 30, 1982. They met Miravalles along the way to his house. Informed by Capt. Ferrer that six of his companions were already under custody and that they implicated him as one of their confederates, Miravalles reacted by saying, “Sir, ang hihina kasi ng mga loob niyan, eh.”[29] Capt. Ferrer later asked Miravalles to bring him to Eddie Saguindel. At the barracks of the Long Range Patrol in Bicutan, Metro Manila, Saguindel voluntarily accepted the invitation to proceed to the SOG headquarters, after Miravalles initially informed him of the facts obtained during the investigation. Saguindel was heard saying, “Hindi na kami interesado, sir, sa mga tsekeng iyan kasi isang buwan na hindi pa nabebenta.”[30] With Miravalles and Saguindel, Capt. Ferrer and his team moved on to Binondo, Manila to look for Bernardo Relator. When they found him at home, Relator excused himself, went upstairs, returned with a .32 caliber revolver with six bullets[31] and said, “Sir, ito yong baril na

nagamit.”[32] The three suspects were brought to Camp Crame for further investigation. Thereafter, Capt. Ferrer submitted an after-operations report about their mission and executed jointly with Lt. Pagdilao on affidavit on the same matter.[33] Aside from petitioner, Liwanag, Mateo and Perez executed sworn statements.[34] Prior to doing so, they waived their right to counsel. Liwanag and Mateo admitted their participation and implicated petitioner in the crime. Perez, on the other hand, denied having driven a Lancer car in the hijacking and stated that he was implicated in the crime only because in one drinking spree with petitioner, Mateo and one alias “Buro” during that month of May, they had a heated altercation. Like petitioner, Liwanag and Mendoza certified that they voluntarily surrendered vouchers and checks which were part of their loot in the hijacking; they also executed waivers under Article 125 of the Revised Penal Code. For his part, Relator executed a certification to the effect that he voluntarily surrendered his .32 caliber Smith & Wesson service revolver used in the commission of the crime. In spite of the fact that his father-in-law was a lawyer, petitioner did not manifest that he needed the assistance of counsel. During the taking of his statement, petitioner was visited by Jimmy Victorino and another comrade from the General Assignment Section of the WPD. For their part, Relator, Saguindel and Miravalles executed a joint affidavit[35] manifesting their option to avail of their right to remain silent until such time as they would have retained a counsel of their choice. Frias and Mendoza executed a similar joint affidavit.[36] Severino Castro, the postal employee implicated, also chose to remain silent as he wanted to testify in court. However, he linked to the crime a certain Gerardo Escalada, a former clerk of the Central Post Office and son of a director of the Bureau of Posts in Region I.[37] On May 31, 1982, then Postmaster General Golez summoned postal employees Miranda, Bautista and Tagudar and directed them to proceed to Camp Crame. At the office of the SOG, they were told to go over some pictures for identification of the culprits. The three recognized and pointed to the suspects in a lineup. Tagudar identified Saguindel and Liwanag.[38] Miranda pointed at Frias and Liwanag[39] while Bautista identified Frias, Mendoza and Liwanag .[40] Petitioner himself, when told to identify his alleged cohorts, pointed to Severino

Castro as their contact at the post office. [41] Five of the suspects who were not identified in the line-up were however implicated by Liwanag, Mateo and petitioner. SOG Chief Investigator Jorge C. Mercado filed a complaint for robbery-in-band (hijacking) before the Municipal Court of Meycauyan, Bulacan against petitioner and ten (10) others, namely, Mateo, Saguindel, Relator, Miravalles, Perez, Frias, Mendoza, Liwanag, Castro and Escalada (Criminal Case No. 7885).[42] On August 8, 1983, the Information previously referred to and aforequoted was filed with the Sandiganbayan and docketed as Criminal Case No. 8496. On September 20, 1983, Sandiganbayan Associate Justice Romeo M. Escareal issued orders for the arrest of the accused[43] and fixed bail at P13,000.00 each. Saguindel and Relator filed a motion to quash the Information asserting that under the Articles of War and Section 1 of P.D. 1850, they should be tried by a court martial.[44] The Sandiganbayan denied the motion on January 3, 1984[45] on the ground that courts martial could no longer exercise jurisdiction over them by virtue of their separation from military service.

Evidence for the Defense

Testifying in his own defense, petitioner alleged that as a patrolman since August 21, 1978 assigned to the Investigation Division or the Detective Bureau of the WPD to which the General Assignment Section belonged, he was the recipient of several awards and recognitions starting with ranking fifth in the Final Order of Merit in the basic course for police officers.[46] He also claimed to have received a loyalty medal for meritorious service above the call of duty[47] and several commendations[48] for the distinguished performance of his duties. On that fateful date of May 3, 1982, he was a member of the Special Task Force Unit covering the tourist belt area. Of the ten other accused in this case, petitioner admitted knowing only Martin Mateo whose name appeared in the initial follow-up operation he allegedly participated in regarding a P250,000 qualified theft case on May 16, 1980 at the Shemberg Marketing

Corporation.[49] Although a suspect, Mateo was not charged in the information subsequently filed in that case. Sometime in March 1981, Mateo visited petitioner at the police headquarters seeking assistance in his bid to lead a new life. Considering Mateo’s familiarity with underworld characters, petitioner readily made him an informer who was paid from time to time out of the police intelligence fund. Mateo proved to be an effective informer. In fact, he allegedly supplied vital information on the identities and whereabouts of suspects in robbery cases at the La Elegancia Jewelry Store, at the Likha Antique and Crafts,[50] and in an alleged racket in Aranque Market in Manila involving jewelries. As such informer, Mateo became accustomed to borrowing petitioner’s owner-type jeep whenever he was given an assignment. In one instance however, petitioner saw Mateo using his jeep with some male companions. Because Mateo denied the occurrence of the incident, petitioner from then on refused to lend his jeep to Mateo. Instead, Mateo was given an allowance to cover his travelling expenses. About a month prior to May 3, 1982, petitioner met Mateo and requested the latter to give him a good project as he was working for his transfer to the Metrocom Intelligence Security Group (MISG). On May 2, 1982, Mateo urged petitioner to lend him his jeep in order that he could follow-up a bank robbery case. That same evening, petitioner approached his kumpare, accused Rodolfo Miranda, to borrow the latter’s old Mercedes Benz since, if the jeep was used, Mateo could be identified as an informer. Petitioner left his jeep with Miranda and “went around boasting of the Mercedes Benz.”[51] Mateo took the Benz in the morning of May 3, 1982. Petitioner advised him to return the car between the hours of two and three in the afternoon at the Lakan Beer House at the corner of Rizal Avenue and Zurbaran Streets in Sta. Cruz, Manila where petitioner was to meet his friend Manolo Almoguera who would be celebrating his birthday there. Petitioner met Almoguera and company at around 3:30 in the afternoon. He waited for Mateo until shortly before 5:00 in the afternoon when he was constrained to leave without seeing Mateo because he had to attend a mandatory regular troop formation at 5:00 P.M. at the police headquarters. From there, petitioner proceeded to his area of responsibility in the tourist belt. He returned to the beer house at about 6:00 in the evening hoping to find

Mateo and the automobile. A little before 8:00 o’clock, someone informed him that Mateo had finally arrived. Petitioner went out and scolded Mateo for being late; the latter apologized and said that his surveillance bore good results. Petitioner then returned the car to Miranda, through the latter’s cousin. At around 11:00 in the evening of May 29, 1982, Mateo, escorted by a group of military men, went to petitioner’s house at 810 Cabezas St., Tondo, Manila. The group refused to give any reason for their visit but arrested him. Wearing only short pants, petitioner was made to board a car where he was handcuffed. The men asked him about the Benz and the identities of his companions in an alleged hijacking incident. Petitioner admitted having knowledge of the exact location of the car but denied participation in the crime. Nobody apprised him of his constitutional rights to remain silent and to be assisted by counsel.[52] Petitioner was then instructed to accompany Lt. Pagdilao to the residence of Miranda to get the Benz. They were on board two cars. When petitioner noticed that they were not heading for Miranda’s place, he clutched the hand of Lt. Pagdilao, pleading for pity and thinking that he was about to be “salvaged”. Lt. Pagdilao however informed him that they would be dropping by petitioner’s house first per the investigator’s information that more checks could be recovered thereat. A warrantless search was then allegedly conducted in petitioner’s house but nothing was found. Suddenly, someone from the other car came out of a nearby house owned by Mateo and reported that they had recovered some checks. Thereafter, they proceeded to the house of Miranda who was also invited for questioning. The latter surrendered his Benz to the group. At the SOG headquarters in Camp Crame, petitioner repeatedly coaxed to admit participation in the hijacking. As he vehemently denied the accusation against him, someone blindfolded him from behind, led him outside and loaded him in a car. He was taken to an unidentified place and made to lie flat on his back. An object was tied to his small finger to electrocute him. While a wet handkerchief was stuffed in his mouth, someone mounted his chest and applied the “water cure” (“tinutubig”) through his nose. Because these ordeals were simultaneously carried out, petitioner felt unbearable pain. He sought permission to get in touch with his father-

in-law, Atty. Felix Rosacia, but his request was denied. They urged him to cooperate otherwise something terrible would happen to him. Meanwhile, petitioner’s wife reported to the WPD General Assignment Section her husband’s forcible abduction by armed men whom she mistook for CIS agents. A check with the CIS yielded negative results. Thereafter, Lt. Reynaldo Dator went to the SOG where he was informed that petitioner was being investigated but no details were given thereon pending clearance with superior officers.[53] Consequently, a newspaper carried an item on the SOG’s refusal to allow petitioner’s co-police officers to see him in his detention cell.[54] Among his comrades, only Jimmy Victorino, formerly of the WPD who was transferred to the SOG, was able to visit him. Petitioner revealed to Victorino the maltreatment done him but the latter expressed helplessness about it. In fact, Victorino advised him to just cooperate so that the SOG would not incriminate him (“para hindi ka paginitan dito”).[55] The advice came after petitioner was warned that he, like Pat. Serrano of the WPD, would be liquidated by the SOG,[56] should he refused to cooperate. Later, Mateo came to petitioner’s cell and confided that he had been similarly maltreated and forced to implicate petitioner. After Mateo left, a prepared statement was shown and read to petitioner. Because its contents were false, petitioner refused to sign it. Placing his arm around petitioner, a certain Capt. Lagman told petitioner that he thought they had an understanding already. Petitioner later discovered that Lagman was not member of the military but an “agent” of the SOG, and a member of the “Contreras gang”. Petitioner was therefore constrained to sign the statement because of his excruciating experience (“hirap na hirap”). He however admitted having read the document before affiixing his signature thereto and initialing the corrections therein. The waiver under Article 125 of the Revised Penal Code and the certification he executed were allegedly also obtained by duress. Although he picked out one Severino Castro in a police line-up, he did not even know Castro. He implicated Castro because he was threatened by a certain Boy Zapanta.

Petitioner filed a complaint for grave coercion and maltreatment against Lt. Rosendo Ferrer and several John Does. On August 4, 1982, Asst. City Fiscal Emelita H. Garayblas recommended its dismissal for petitioner’s failure to appear despite subpoenas and to answer clarificatory questions as well as to authenticate his statement.[57] However, petitioner swore that he never received the subpoenas. Petitioner’s alibi was supported by Manolo Almoguera whose birthday on May 3, 1995 was the reason for the celebration at the Lakan Beer House. While his baptismal certificate indicated that he was born on May 4, 1956,[58] a joint affidavit[59] also attested that his birth date was actually May 3, 1956. Gary Gallardo, the owner of the beer house, corroborated Almoguera’s testimony as to petitioner’s alleged presence during the birthday celebration.

The Respondent Court’s Decision

On June 18, 1987, the Sandiganbayan rendered the herein questioned 51-page Decision, the dispositive portion of which reads: “WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo, Martin Mateo, Jr. y Mijares, Bernardo Relator, Jr. y Retino and Eddie Saguindel y Pabinguit GUILTY as co-principals beyond reasonable doubt of the violation of Section 2 (e), in relation to Section 3 (b) of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974 and hereby sentences each of said accused to suffer the indeterminate penalty ranging from TWELVE (12) YEARS and ONE (1) DAY as minimum, to THIRTEEN (13) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS as maximum, both ofreclusion temporal, and to pay their proportionate share of the costs of the action. Accused Danilo Miravalles y Marcelo is hereby acquitted, with costs de oficio, for insufficiency of evidence. No civil indemnity is hereby awarded due to the complete dearth of any proof as to the actual damages suffered by the Bureau of Posts or the owners of the pilfered mail

matters, and it further appearing that the mail van which was hijacked had been recovered, as well as most of the checks and warrants which were surrendered by some of the accused, without prejudice to the institution of the proper civil action to recover damages should proof thereof be available. Consequently, it is hereby ordered that Exhibits B, B-1 and B-2, which are the .32 Cal. Revolver, Smith and Wesson, Serial No. 11707, its holster and six (6) live ammunition respectively, which were surrendered by accused Relator, and Exhibits J, J-1 to J-5, consisting of 187, 222, 215, 197, 194 and 22 pieces, respectively, of Social Security System and Medicare checks and vouchers, be returned to the Firearm and Explosive Unit (FEU), PC, Camp Crame, Quezon City and the Social Security System, respectively, upon proper receipts. Let copies of this decision be furnished the PostmasterGeneral, Central Post Office, Liwasang Bonifacio, Metro Manila and the Commanding General and Chief, PC-INP, Camp Crame, Quezon City for their information and guidance with respect to the other accused who are still atlarge. SO ORDERED.” Petitioner’s motion for reconsideration of said Decision was denied by the Sandiganbayan in its challenged Resolution of July 27, 1987. Hence, the instant alternative petition for certiorariand/or review on certiorari charging the Sandiganbayan with having gravely abused its discretion amounting to lack or excess of jurisdiction and with reversible error in arriving at said Decision.

The Issues

The amended petition raises the following: “Assignments of Error and / or

Excess of Jurisdiction / Grave Abuse of Discretion xxx

xxx

xxx

Fifth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction when it made its determination of the alleged guilt of petitioner on the basis of mere preponderance of evidence and not proof beyond reasonable doubt.

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in admitting and considering against petitioner his alleged extra judical confession, despite petitioner’s uncontradicted testimony and documentary proof that he was made to give or sign the same through torture, maltreatment, physical compulsion, threats and intimidation and without the presence and assistance of counsel, his request for which was refused, in gross violation of Constitutional Provisions and the prevailing jurisprudence.

Second

Sixth

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that petitioner’s having borrowed the Mercedes Benz car utilized by the other accused in the hijacking of the mail van idubitably established his direct participation and/or indispensable cooperation in the said hijacking, the same being in gross disregard of basic Rules of Law.

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that petitioner’s participation in the hijacking of the mail van is indubitably established ‘by the manner by which the SOG operatives succeeded in ferreting out the members of the hijacking syndicate one by one through patient sleuthing’ and in finding that they did so ‘without resorting to extralegal measures’ and that ‘no evidence having been adduced to show that they were actuated by improper motives to testify falsely against the herein accused, then their testimonies should be accorded full credence’.

First

Third The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that the voluminous SSS Medicare and Pension Checks were confiscated from and surrendered by petitioner and three of the other accused and in finding the testimonies and investigation reports relative thereto, ‘credible and unrefuted’, said findings being, insofar as petitioner is concerned, absolutely without any basis in the evidence and in fact contrary to the prosecution’s only evidence that has some measure of competency and admissibility.

The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that ‘even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, x x x substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo’ (Petitioner).

Fourth

Eight

The respondent court erred and gravely abused its discretion in finding that dorsal portions of the checks and warrants allegedly taken from petitioner were signed by him to indicate his admission of accountability therefor and that his signatures thereon confirm the confiscation from and/or surrender by him of said checks, said findings being absolutely without any support in the evidence.

Seventh

Insofar as petitioner is concerned, the respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that ‘accused Filoteo’s (petitioner’s) and Mateo’s [alleged] unexplained possession of the stolen checks raised the presumption that ‘they were responsible for the robbery in question’,

petitioner’s alleged possession not being borne out but disputed by the prosecution’s own evidence. Ninth The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that ‘accused Filoteo’s denials and alibi cannot be entertained for being quite weak and implausible’. The truth of the matter being that they should have been sustained since petitioner was not identified by the direct victimseyewitnesses as among those who participated in or were present at the hijack and none of the checks and treasury warrants were found in his possession or retrieved from him. Tenth The respondent court erred and gravely abused its discretion as well as exceeded its jurisdiction in finding that the participation of petitioner in the criminal conspiracy has been proven beyond reasonable doubt by the evidence of record and that said evidence ‘not only confirms the conspiracy between [him and the other accused] as easily discernible from their conduct before, during and after the commission of the offense; but also their participation therein as co-principals by direct participation and/or indispensable cooperation’. Eleventh The respondent Court erred and gravely abused its discretion as well as exceeded its jurisdiction in cavalierly rejecting, through the use of pejorative words, and without stating the legal basis of such rejection, the various vital factual points raised by petitioner, in gross violation of the express mandate of the 1987 Constitution.” The Court believes that the above “errors” may be condensed into four: (1)

Are the written statements, particularly the extra-judicial confession executed by the accused without the

presence of his lawyer, admissible in evidence against him? (2)

Were said statements obtained through torture, duress, maltreatment and intimidation and therefore illegal and inadmissible?

(3)

Was petitioner’s warrantless arrest valid and proper?

(4)

Is the evidence of the prosecution sufficient to find the petitioner guilty beyond reasonable doubt?

The Court’s Ruling

Preliminary Issue: Rule 45 or Rule 65?

Before ruling on the foregoing issues, it is necessary to dwell on the procedural aspects of the case. Petitioner, a “segurista”, opted to file an (amended) “alternative petition” for certiorariunder Rule 65 and for review on certiorari under Rule 45 of the Rules of Court. We however hold that the instant petition must be considered as one for review on certiorari under Rule 45. InJariol, Jr. vs. Sandiganbayan,[60] this Court clearly ruled:

the Sandiganbayan misapprehended certain (f)acts in arriving at its factual conclusions.” As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606 expressly provides that “(d)ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court.” However, in exceptional cases, this Court has taken cognizance of questions of fact in order to resolve legal issues, as where there was palpable error or grave misapprehension of facts by the lower court. Criminal cases elevated by convicted public officials from the Sandiganbayan deserve the same thorough treatment by this Court as criminal cases involving ordinary citizens simply because the constitutional presumption of innocence must be overcome by proof beyond reasonable doubt. In all criminal cases, a person’s life and liberty are at stake.[61] As a petition for review under Rule 45 is the available remedy, a petition for certiorari under Rule 65 would not prosper. Basic it is that certiorari is invocable only where there is no other plain, speedy or adequate remedy. For waffling on procedural matters, petitioner could have lost this battle through a summary dismissal of his “alternative” petition. But in view of the importance of the issues raised, the Court decided to take cognizance of the matter.

Court’s admission in evidence of his extrajudicial confession on the strength of cases[62] upholding the admissibility of extrajudicial confessions notwithstanding the absence of counsel “especially where the statements are replete with details and circumstances which are indicative of voluntariness.” We shall first tackle the issue of his uncounselled waiver of his right to counsel. The pertinent provision of Article IV, Section 20 of the 1973 Constitution reads as follows: “No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel and to be informed of such rights. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.” In comparison, the relevant rights of an accused under Article III, Section 12 of the 1987 Constitution are, inter alia, as follows: “(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

First Issue: Uncounselled Waiver “Presidential Decree No. 1486, as amended by P.D. No. 1606, which created the Sandiganbayan, specified that decisions and final orders of the Sandiganbayan shall be subject to review on certiorari by this Court in accordance with Rule 45 of the Rules of Court. And Rule 45 of the Revised Rules of Court provides, in Section 2, that only questions of law may be raised in the Petition for Review and these must be distinctly set forth. Thus, in principle, findings of fact of the Sandiganbayan are not to be reviewed by this Court in a petition for review on certiorari. There are, of course, certain exceptions to this general principle. Here, reading petitioner’s Petition for Review and Memorandum in the most favorable possible light, petitioner may be seen to be in effect asserting that

On the merits of the petition, we find that the pivotal issue here is the admissibility of petitioner’s extrajudicial confession which lays out in detail his complicity in the crime. Petitioner contends that respondent Court erred in admitting his extrajudicial confession notwithstanding uncontradicted testimony and documentary proof that he was made to sign the same through torture, maltreatment, physical compulsion, threats and intimidation and without the presence and assistance of counsel. He also claims that in executing the extrajudicial confession, he was denied the right to counsel in the same way that his waiver of the said right was likewise without the benefit of counsel. Petitioner therefore questions the respondent

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices and their families.” (underscoring supplied. Obviously, the

1973 Constitution did not contain the right against an uncounselled waiver of the right to counsel which is provided under paragraph 1, Section 12, Article III of the 1987 Constitution, above underscored.) In the landmark case of Magtoto vs. Manguera,[63] the Court categorically held that the aforequoted provisions of the 1973 Constitution (which were not included in the 1935 Charter) must be prospectively applied. This Court said: “We hold that this specific portion of this constitutional mandate has and should be given a prospective and not a retrospective effect. Consequently, a confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the right to be so informed before that date.” By parity of reasoning, the specific provision of the 1987 Constitution requiring that a waiver by an accused of his right to counsel during custodial investigation must be made with the assistance of counsel may not be applied retroactively or in cases where the extrajudicial confession was made prior to the effectivity of said Constitution. Accordingly, waivers of the right to counsel during custodial investigation without the benefit of counsel during the effectivity of the 1973 Constitution should, by such argumentation, be admissible. Although a number of cases held that extrajudicial confessions made while the 1973 Constitution was in force and effect, should have been made with the assistance of counsel, [64] the definitive ruling was enunciated only on April 26, 1983 when this Court, through Morales, Jr., vs. Enrile,[65] issued the guidelines to be observed by law enforcers during custodial investigation. The court specifically ruled that “(t)he right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel.”[66] Thereafter, in People vs. Luvendino,[67] the

Court through Mr. vigorously taught:

Justice

Florentino

P.

Feliciano

“x x x. The doctrine that an uncounseled waiver of the right to counsel is not to be given legal effect was initially a judge-made one and was first announced on 26 April 1983 in Morales vs. Enrile and reiterated on 20 March 1985 in People vs. Galit. x x x. While the Morales-Galit doctrine eventually became part of Section 12(1) of the 1987 Constitution, that doctrine affords no comfort to appellant Luvendino for the requirements and restrictions outlined in Morales andGalit have no retroactive effect and do not reach waivers made prior to 26 April 1983 the date of promulgation of Morales.” Pursuant to the above doctrine, petitioner may not claim the benefits of the Morales and Galit rulings because he executed his extrajudicial confession and his waiver to the right to counsel on May 30, 1982, or before April 26, 1983. The prospective application of “judge-made” laws was underscored in Co vs. Court of Appeals[68] where the Court ruled thru Chief Justice Andres R. Narvasa that in accordance with Article 8 of the Civil Code which provides that “(j)udicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines,” and Article 4 of the same Code which states that “(l)aws shall have no retroactive effect unless the contrary is provided,” the principle of prospectivity of statutes, original or amendatory, shall apply to judicial decisions, which, although in themselves are not laws, are nevertheless evidence of what the law means.[69] Petitioner’s contention that Article III, Section 12 of the 1987 Constitution should be given retroactive effect for being favorable to him as an accused, cannot be sustained. While Article 22 of the Revised Penal Code provides that “(p)enal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal,” what is being construed here is a constitutional provision specifically contained in the Bill of Rights which is obviously not a penal statute. A bill of rights is a declaration and enumeration of the individual rights and privileges which the Constitution is designed to protect against violations by the government, or by individuals or groups of individual. It is a charter of

liberties for the individual and a limitation upon the power of the state.[70] Penal laws, on the other hand, strictly and properly are those imposing punishment for an offense committed against the state which the executive of the state has the power to pardon. In other words, a penal law denotes punishment imposed and enforced by the state for a crime or offense against its law.[71] Hence, petitioner’s vigorous reliance on People vs. Sison[72] to make his extrajudicial confession inadmissible is misplaced. In that case, the extrajudicial confession was executed on May 19, 1983, clearly after the promulgation of Morales on April 26, 1983. The admissibility of petitioner’s uncounselled waiver of the right to counsel notwithstanding, the Court has still to determine whether such waiver was made voluntarily and intelligently.[73] The waiver must also be categorical and definitive,[74] and must rest on clear evidence.[75] In his affidavit of May 30, 1982 waiving the provisions of Article 125 of the Revised Penal Code,[76] petitioner stated that: “x x x matapos akong mapagpaliwanagan ng mga imbestigador ng Special Operations Group, PC/INP Central Anti-Organized Crime Task Force, Camp Crame, Quezon City ng aking mga karapatan alinsunod sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas ay malaya at kusang-loob na nagsasalaysay ng mga sumusunod kahit na walang abugadong magpapayo sa akin sa pagsasagawa nito sa dahilang alam at nauunawaan ko ang aking ginagawa at wala naman akong isasalaysay kung hindi mga katotohanan lamang, bagama’t ako ay inalok ng mga imbestigador na ikuha ng isang abugadong walang bayad mula sa CLAO-IBP na akin namang tinanggihan: xxx

xxx x;

xx

Na ako ay hindi sinaktan o minaltrato gayunding walang kinuha mula sa akin na hindi niresibohan; xxx

xxx x.”

xx

Sgt. Arsenio Carlos, investigating officer, testified that he apprised petitioner of his right to counsel even in waiving the same right[77] but petitioner did not even inform him that his father-in-law was a lawyer. Although allowed to talk for thirty minutes with Jimmy Victorino, who was his comrade at the WPD General Assignment Section,[78] still, petitioner did not invoke his right to counsel. It should be emphasized that petitioner could not have been ignorant of his rights as an accused. He was a fourth year criminology student and a topnotch student in the police basic course.[79] Having been in the police force since 1978, with stints at the investigation division or the detective bureau, he knew the tactics used by investigators to incriminate criminal suspects.[80] in other words, he was knowledgeable on the matter of extrajudicial confessions.

voluntarily and not under compulsion of fear immediately after he had been subjected to maltreatment. In view of the foregoing, his extrajudicial confession is presumed to have been voluntarily made, in the absence of conclusive evidence showing that petitioner’s consent in executing the same had been vitiated.[83] Besides, the question of whether petitioner was indeed subjected to torture or maltreatment is a factual question addressed primarily to trial courts, the findings of which are binding on this Court whose function, as aforediscussed, is principally to review only of questions of law. Moreover, we have pored over the assailed Decision and we are satisfied that respondent Court performed its duty in evaluating the evidence. More on this later.

The Third Issue: Illegal Arrest? The Second Issue: Confession Extracted Through Torture?

Petitioner’s claim that he was tortured into signing the confession appears incredible, or at least susceptible to serious doubts. The allegation of torture was negated by the medical report[81]showing no evidence of physical injuries upon his person. As correctly observed by the Solicitor General, there is no reason to maltreat him in particular when the record shows that the investigating team respected the right of the other suspects to remain silent. When he was presented before Judge Mariano Mendieta of the municipal court in Meycauayan, petitioner even waived his right to present evidence[82] instead of impugning his confession on account of the torture allegedly inflicted upon him. If indeed he had been tortured, he would have revived the case he filed against his alleged torturers upon learning of its dismissal. Furthermore, an examination of his signatures in the different documents on record bearing the same discloses an evenness of lines and strokes in his penmanship which is markedly consistent in his certification, extrajudicial confession and waiver of detention. Human experience has proven that the lines and strokes of a person’s handwriting reflect his disposition at a certain given time. In the present case, no handwriting expert is needed to declare that petitioner’s signatures were written

Petitioner questions the manner of his arrest, stating that the arresting officers “invited” him without a warrant of arrest and brought him to Camp Crame where he was allegedly subjected to torture almost a month after the commission of the crime.[84] Petitioner’s claim is belatedly made. He should have questioned the validity of his arrest before he entered his plea in the trial court. On this point, this Court explained in People vs. Lopez, Jr.:[85] “Finally, it is much too late for appellant to raise the question of his arrest without a warrant. When accusedappellant was arrested and a case was filed against him, he pleaded not guilty upon arraignment, participated in the trial and presented his evidence. Appellant is thus estopped from questioning the legality of his arrest. It is well-settled that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived. Besides, this issue is being raised for the first time by appellant. He did not move for the quashal of the information before the trial court on this ground. Consequently, any irregularity attendant to his arrest, if any, was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of not guilty and by participating in the trial. Moreover, the illegal arrest of an accused is not

sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error.” The only move petitioner made in regard to his arrest was to file a complaint for “grave coercion, grave threat & maltreatment” which was docketed as I.S. No. 8212684 before the Fiscal’s Office of Quezon City.[86] The complaint was an offshoot of his alleged maltreatment in the hands of the SOG upon his arrest. However, as stated above, he did not lift a finger to revive it upon its dismissal.

The Fourth Issue: Sufficiency of the Prosecution’s Evidence

Contrary to petitioner’s claim, his culpability has been proven beyond reasonable doubt. He borrowed a car to use in the hijacking knowing fully well that his ownertype jeep would give away his identity. He could not be identified by the postal employees in the postal van simply because after overtaking said vehicle and forcing its driver to pull over, he gave up driving the Mercedes Benz where the postal employees were made to ride, and commandeered the van. That the checks were not found in his own home is of no moment. Before the arrest and upon learning that the authorities had begun to nail down the identities of the malefactors, he had entrusted them to his “kumare”. It was petitioner himself who led the team of Lt. Pagdilao back to his place after he had admitted to Sgt. Arsenio Carlos that his share of the checks were in the possession of his “kumare” in the neighborhood.[87] In view of these facts, it is beyond dispute that petitioner was a direct participant in the commission of the crime. His alibi has been correctly considered by the Sandiganbayan to be weak and implausible. The distance between Kalvario, Meycauayan, Bulacan and downtown Manila where petitioner claimed to have been at the crucial time was between fifteen (15) to twenty (20) kilometers, which, through first-class roads, could be negotiated during that time in approximately thirty (30) minutes. It could not therefore have been physically impossible for him to be at the crime scene or its immediate vicinity when the crime was committed.[88]

Having already ruled on the admissibility of petitioner’s confession, this Court holds that the full force of the totality of the prosecution’s evidence proves his guilt well beyond reasonable doubt. Weighing heavily against the defense is the well-settled doctrine that findings of facts of the trial courts -- in this case, the Sandiganbayan itself -- particularly in the assessment of the credibility of witnesses, is binding upon this Court, absent any arbitrariness, abuse or palpable error. “x x x It is well-settled that this Court will not interfere with the judgment of the trial court in passing on the credibility of the witnesses, unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misapprehended or misinterpreted. The reason for this is that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.”[89] “The doctrine is firmly settled that the trial court’s conclusion on issues of credibility is accorded with highest respect by the appellate courts (People vs. Dominguez, 217 SCRA 170). Appellate courts will generally respect the findings of trial courts on the credibility of witnesses since trial courts are in a better position to weigh conflicting testimonies. They heard the witnesses themselves and observed their deportment and manner of testifying. x x x.”[90] So overwhelming is the prosecution’s evidence that respondent Court opined that even without the “interlocking confessions of Filoteo, Mateo and Liwanag” the remaining evidence would still be sufficient for conviction.[91] Said the respondent tribunal: “However, even setting aside the inter-locking confessional statements of Filoteo, Mateo and Liwanag, we are of the considered opinion that substantial and sufficient evidence exist which indubitably prove the guilt of Filoteo, Relator, Mateo and Saguindel who had submitted themselves to the jurisdiction of this Court. As above-stated, Filoteo was responsible for securing the use of the Mercedes Benz car used by the co-conspirators in the hi-jacking. Together with Mateo, Liwanag and Mendoza, he surrendered

voluminous assorted checks which were part of the loot. Relator admitted that his service firearm was used by him in the hi-jacking, which firearm was identified by prosecution witnesses Miranda and Bautista. Saguindel was identified in line-ups at the SOG office as the suspect clad in fatigue uniform and carrying an Armalite rifle by prosecution witnesses Tagudar and Bautista. All three (3) accused, namely, Mateo, Relator and Saguindel also jumped bail during the trial and did not offer any evidence to refute the evidence presented by the prosecution against them. Such flight to evade prosecution constitutes an implied admission of guilt. Moreover, accused Filoteo’s and Mateo’s unexplained possession of the stolen checks raises the presumption that they were responsible for the robbery in question. It is a rule established by an abundance of jurisprudence that when stolen property is found in the possession of one, not the owner, without a satisfactory explanation of his possession, he will be presumed the thief. This rule is in accordance with the disputable presumption “that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act.” In the instant case, said accused has not given such satisfactory explanation, much more so when their possession had been positively established by the testimonies of prosecution witnesses Capt. Ferrer and Sgt. Carlos and by accused’s own signatures at the back of said checks. Furthermore, accused Filoteo’s denials and alibi cannot be entertained for being quite weak and implausible. His claim that he merely borrowed the Mercedes Benz car from Rodolfo Miranda to help out his co-accused Mateo, who had been utilized by the police as an “informer” and was following up tips in certain unsolved cases, appears to be incredible and fantastic. He also claimed that he could not have participated in the hi-jack because after giving the car to Mateo in the morning of May 2, 1982, he waited at the corner of Zurbaran St. and Avenida Rizal between 23:00 o’clock p.m. of the same day and then went to the WPD headquarters to attend the police formation at around 5:00 o’clock p.m. when Mateo failed to show up. Thereafter, he tried to show through his witnesses Gary Gallardo and Manolo Almogera that he was with them between 3:00 o’clock to 4:45 o’clock p.m., then from 6:00 o’clock to 8:30 o’clock p.m. and, finally, from 10:45 o’clock p.m. to 11:00 o’clock of the same date. It was

through said witnesses that he tried to establish his whereabouts between 4:30 o’clock to 7:30 o’clock p.m. of May 2, 1982, the period from the time the mail van was hijacked up to when postal employees Bautista, Miranda and Tagudar were brought to Caloocan City and freed by their captors. Such alibi, however, fails to show that it was physically impossible for him to be present at the scene of the hi-jacking. We take judicial notice that the distance between the crime scene and downtown Manila is some 15-20 kilometers and negotiable over first-class roads in some thirty (30) minutes.” We are likewise convinced that there is sufficient evidence of conspiracy as convincing as the evidence of the participation of each of the accused. As ratiocinated in the assailed Decision:[92] “The participation of accused Filoteo, Mateo, Relator and Saguindel in the criminal conspiracy have (sic) been proved beyond reasonable doubt by the evidence on record and which evidence not only confirms the existence of the conspiracy between them as easily discernible from their conduct before, during and after the commission of the offense, but also their participation therein as coprincipals by direct participation and/or indispensable cooperation. Their concerted efforts were performed with closeness and coordination indicating their common purpose. Hence, there being collective criminal responsibility, the act of one is the act of all, and each of the participants are responsible for what the others did in all the stages of execution of the offense.”

Final Question: Brigandage or Robbery?

The Court believes that, though not raised as an issue and though not argued by the parties in their pleadings, the question of which law was violated by the accused should be discussed and passed upon. In fact, petitioner should have brought up such question as it may benefit him with a reduced penalty. The respondent Court convicted the accused of brigandage punishable under Presidential Decree No. [93] 532.

Justifying the above disposition, the assailed Decision ratiocinates: “Accused herein are charged with the violation of Presidential Decree No. 532, otherwise known as the AntiPiracy and Anti-Highway Robbery Law of 1974. Under said decree, with respect to the highway robbery aspect, the offense is committed on a “Philippine Highway” which under Section 2 (c) thereof has been defined as “any road, street, passage, highway and bridges or any part thereof, or railway or railroad within the Philippines, used by persons or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles or property or both”, while under Section 2 (e) thereof “Highway Robbery/Brigandage” has been defined as the “the seizure of any person for ransom, extortion or other unlawful purposes or the taking away of property of another by means of violence against or intimidation of persons nor force upon things or other unlawful means, committed by any person on any Philippine Highway”. (Underscoring supplied) The offense described in the information and established by the evidence presented by the prosecution properly falls within the ambit of the aforesaid special law. Therein, it was conclusively proven that a postal van containing mail matters, including checks and warrants, was hi-jacked along the national highway in Bulacan by the accused, with the attendant use of force, violence and intimidation against the three (3) postal employees who were occupants thereof, resulting in the unlawful taking and asportation of the entire van and its contents consisting of mail matters. Also the evidence further showed that the crime was committed by the accused who were PC soldiers, policeman (sic) and private individuals in conspiracy with their co-accused Castro and Escalada who were postal employees and who participated in the planning of the crime. Accordingly, all the essential requisites to constitute a consummated offense under the law in point are present.” (Underscoring in the original text.) Obviously, the Court a quo labored under the belief that because the taking or robbery was perpetrated on a national highway (McArthur Highway), ergo, Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, must have been the

statute violated. Such reasoning has already been debunked by this Court in the case of People vs. Isabelo Puno,[94] where it was ruled in unmistakable language that it takes more than the situs of the robbery to bring it within the ambit of PD 532. Said the Court through Mr. Justice Florenz D. Regalado: “The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: ‘The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art. 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band ‘sala a los campos para dedicarse a robar.’ (Italics ours.) In fine, the purpose of brigandage, is inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law.

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: “WHEREAS, reports from law-enforcement agencies reveal that lawless are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people: “WHEREAS, such acts of depredations constitute x x x highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries: ‘WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people; (Emphasis supplied.) Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the “innocent and defenseless inhabitants who travel from one place to another,” and which single act of depredation would be capable of “stunting the economic and social progress of the people” as to be considered “among the highest forms of lawlessness condemned by the penal statutes of all countries,” and would accordingly constitute an obstacle “to the economic, social, educational and community progress of the people,” such that said isolated act would constitute the highway robbery or brigandage contemplated and punished is said decree. This would be an exaggeration bordering on the ridiculous.” From the above, it is clear that a finding of brigandage or highway robbery involves not just the locus of the crime or the fact that more than three (3)

persons perpetrated it. It is essential to prove that the outlaws were purposely organized not just for one act of robbery but for several indiscriminate commissions thereof. In the present case, there had been no evidence presented that the accused were a band of outlaws organized for the purpose of “depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another.” What was duly proven in the present case is one isolated hijacking of a postal van. There was also no evidence of any previous attempts at similar robberies by the accused to show the “indiscriminate” commission thereof.[95] Upon the other hand, the Information did not specifically mention P.D. 532.[96] The facts alleged therein and proven by the evidence constitute the offense of robbery defined in Art. 293 in relation to Art. 295 and punished by Art. 294, par. 5, all of the Revised Penal Code.[97] From the facts, it was duly proven that: personal property (treasury warrants, checks, mail, van, tools, etc.) belonging to another were unlawfully taken by the accused with intent to gain (animo lucrandi)

Hence, the offender shall be punished by the maximum period of the penalty provided under paragraph 5 of Art. 294, which is, “prision correctional in its maximum period to prision mayor in its medium period”.

---------------------------------

Effectively, the penalty imposed by the Court a quo should be lightened. However, such lighter penalty shall benefit only herein petitioner and not his co-accused who did not contest or appeal the Sandiganbayan’s Decision.

REPUBLIC OF THE PHILIPPINES, (Represented by the Land Tenure Administration), petitioner, vs. J. M. TUAZON & CO., ET AL., respondents.

WHEREFORE, the petition is DENIED, but the first paragraph of the dispositive portion of the assailed Decision is partially MODIFIED to read as follows:

Araneta and Araneta for petitioners. Office of the Solicitor General and Legal Staff, LTA for respondents. Legal Staff, LTA for petitioner. Araneta and Araneta and A. M. Tolentino for respondents.

“WHEREFORE, judgment is hereby rendered finding accused Jose Filoteo, Jr. y Diendo GUILTY beyond reasonable doubt as co-principal in the crime of robbery as defined in Arts. 293 and 295 and penalized under Art. 294, paragraph 5, of the Revised Penal Code Code IMPOSING on him an indeterminate sentence of four (4) years and two (2) months of prision correctional, as minimum, to ten (10) years of prision mayor as maximum, and to pay his proportionate share of the costs of the action.” All other parts hereby AFFIRMED.

of

the

disposition

are

SO ORDERED.

with intimidation against three persons (Art. 293) EN BANC in an uninhabited place, or G.R. No. L-18128

December 26, 1961

by an band, or by attacking a moving motor vehicle on a highway; and the intimidation was made with the use of firearms (Art. 295)

J. M. TUASON & CO., INC., HON. HERMOGENES CALAUAG, Judge of the Court of First Instance of Rizal (Quezon City, Branch IV) and HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal (Quezon City Branch V), petitioners, vs. COURT OF APPEALS (Second Division), THE CHAIRMAN-ADMINISTRATOR OF THE LAND TENURE ADMINISTRATION, BRUNA ROSETE and BUENAVENTURA DIZON, respondents.

G.R. No. L-18672

December 26, 1961

REYES, J.B.L., J.: The record shows that the judgments rendered in 1955 by the Court of First Instance of Rizal, in its ejectment cases Q-1401 and Q-1402, were, upon regular appeal, sequently affirmed in toto by the Court of Appeals in its cases CAG.R. Nos. 16265-66-R, "Tuason & Company, Inc. vs. Bruna Rosete and Buenaventura Dizon". The Court of First Instance, after the appellate court's decision became final and upon return of the records in due course, issued writ of execution of the judgment against Rosete and Dizon, as prayed for by the landowner Tuason & Company. Subsequently, on November 19, 1960, the Court of First Instance issued orders of demolition of the houses of the evictees or judgment debtors. A few days previously, on November 16, 1960, the landowner J. M. Tuason & Company had also applied for a writ of prohibition in the Court of First Instance of Quezon City (Case No. Q-5527) against the Land Tenure administration, the Auditor General, and the Solicitor General, to restrain them from instituting expropriation proceedings of the petitioner Company's land in Quezon City, generally known as the "Tatalon Estate", as expressly and specifically authorized by Republic Act No. 2616, that became law, without executive approval, on August 3, 1959; the Company claiming mainly that the Republic Act was unconstitutional, null and void, as legislation aimed at depriving it of its property for the benefit of squatters and occupants, even if the property had been actually

subdivided, and its lots were being sold to the public; and that respondent officers threatened to enforce said law by initiating expropriation proceedings. At petitioner's request, Judge Hermogenes Caluag of the Quezon City Court of First Instance (to whom the prohibition case was assigned) issued an ex parte writ of preliminary injunction on November 18, 1960, upon the filing of a bond of P20,000. After injunction was issued, the evictees in Quezon City cases Q-1401 and 1402, Bruna Rosete and Tranquilino Dizon, petitioned the Court of First Instance to suspend the order of demolition of their houses, on the ground that they were tenants of the Tatalon Estate; that Republic Act No. 2616, after specifically authorizing the expropriation of the Tatalon Estate, in its section 4, prescribes as follows: Section 4. After the expropriation proceedings mentioned in section two of this Act shall have been initiated and during the pendency of the same, no ejectment proceedings shall be instituted or prosecuted against the present occupant of any lot in said Tatalon Estate, and no ejectment proceedings already commenced shall be continued and such lot or any portion thereof shall not be sold by the owners of said estate to any person other than the present occupant without the consent of the latter given in a public document. However, Judge Nicasio Yatco of the Court of First Instance of Quezon City denied the suspension because no expropriation proceedings had been actually filed. Thereupon, the evictees Rosete and Dizon recoursed to the Court of Appeals, and there instituted, on February 4, 1961, certiorari proceedings (C.A.-G.R. No. 28842-R) against Judge Yatco and Caluag, J. M. Tuason & Co. Inc., and the Land Tenure Administration. They averred, after recital of the facts, that Judge Caluag, gravely abused his discretion in issuing the preliminary injunction in the prohibition case No. Q-5527 to restrain the initiation of condemnation proceedings over the Tatalon Estate; that as beneficiaries under section 4 of Republic Act No. 2616, they were entitled to a stay of the demolition proceedings against them; and that Judge Yatco abused his discretion

in refusing to suspend the same until the expropriation case was terminated. The petitioners prayed that — (1) Judge Yatco be enjoined from issuing orders of demolition in Cases Nos. Q-1401 and 1402; (2) Judge Caluag be enjoined from enforcing the preliminary injunction he had issued in Case No. Q-5527; and (3) That the Land Tenure Administrator be commanded to institute the expropriation proceedings authorized by Republic Act No. 2616. The Court of Appeals gave due course to the certiorari petition, and on February 9, 1961 ordered the issuance ex parte of the preliminary injunction prayed for, upon the filing of a P1,000 bond, which was done. Respondent Tuason & Company, Inc., moved to dissolve the preliminary injunction of the Court of Appeals, pointing out that said Court's jurisdiction to take cognizance of certiorari proceedings and to issue injunction was only in aid of its appellate jurisdiction; that the orders of execution issued by the Quezon City Court are not appealable; that the prohibition proceedings in case No. Q5527, involving (as they did) a question of constitutionality of a statute, were likewise not appealable to the Court of Appeals; and that said Court, therefore, was without jurisdiction to pass over the questioned orders and that its injunction was improperly issued, not being in aid of the appellate jurisdiction the Court of Appeals. These points were reiterated in the Company's answer to the petition forcertiorari. The Court of Appeals (Second Division) refused to lift the preliminary injunction; on the contrary, on February 26, upon motion of one of the respondents, the Land Tenure Administration, it clarified the previous writ of preliminary injunction. in the sense that said Writ lifts, quashes or dissolves writ of preliminary injunction issued by the Hon. Judge Hermogenes Caluag, in Civil Case No. 5527, CFI, Rizal, so that respondent Land Tenure Administration may thus properly file the complaint for expropriation as authorized by Republic Act No. 2616.

Thereupon, Tuason & Company instituted in this Supreme Court certiorari proceedings (G.R. No. L-18128). We gave it due course and enjoined enforcement of orders of the Court of Appeals in C.A.-G.R. No. 28842, and order the Land Tenure Administration to the defer the filing of the expropriation proceedings until further orders. The sequel to the events narrated can be gleaned from the record of case G.R. No. L-18672, a certiorariproceeding filed by the Land Tenure Administration against Judge Hermogenes Caluag and Tuason & Company, Inc. The motion of the Land Tenure Administration and its correspondents to dismiss the prohibition case in the Quezon City Court (Case No. Q-5527), as well as their motion to dissolve the preliminary injunction issued by Judge Caluag, was denied by him; and when the Second Division of the Court of Appeals issued its resolution of February 26, 1961, quashing Judge Caluag's preliminary injunction, the Land Tenure Administration attorneys attempted to file the complaint for the expropriation of 93 hectares of the Tatalon Estate in the Quezon City court, but said complaint could not be docketed because the Judge had forbidden the Court Clerk to do so. Despite entreaties, Judge Caluag refused to allow the expropriation complaint to be docketed, claiming that he had no official knowledge of the resolution of the Court of Appeals, even after he was served with a certified copy thereof. The Land Tenure Administration avers that the issuance of the injunction in the prohibition case (Q-5527), the denial of the motion to dismiss the case, the refusal to dissolve the injunction, and the refusal to have the complaint for expropriation docketed were all in abuse of discretion and excess of jurisdiction; that furthermore, venue was improperly laid, because an action for prohibition is personal in character, and neither petitioner nor any of the respondents in said prohibition case were domiciled in Quezon City. Petitioner Land Tenure Administration, therefore, prayed that Judge Caluag be ordered by this Court to refrain from proceeding with the prohibition case, from enforcing the writ of preliminary injunction issued therein, from issuing orders of demolition of the tenant's houses, and to allow the expropriation case to be docketed and regularly proceeded with.

As we view it, two main questions are involved in these cases:

SEC. 7. Expediting proceedings. Preliminary injunction.

(1) In G.R. L-18128: Did the Court of Appeals have jurisdiction to lift, quash, and dissolve the preliminary writ of injunction issued by Judge Caluag in the prohibition case No. Q-5527 pending in his court?

The court in which the petition is filed, or a judge thereof, may make orders expediting the proceedings, and may also grant a preliminary injunction for the preservation of the rights of the parties pending such proceedings.

(2) In G.R. L-18672: Did Judge Caluag act without or in excess of jurisdiction in issuing the preliminary injunction in the prohibition case? As to the first issue, we are satisfied that the writ of injunction issued by the Court of Appeals in CA-G.R. No. 28842-R is null and void for want of jurisdiction. The authority of said Court to issue writs of mandamus, prohibition, injunction, certiorari and habeas corpus is expressly limited by statute to their issuance in aid of its appellate jurisdiction (Judiciary Act, sec. 30), and it has been repeatedly ruled by us that the jurisdiction of the Court of Appeals to issue such writs must be based on the existence of a right to appeal to it from the judgment on the merits in the main case. Without such right of appeal, the Court of Appeals is without jurisdiction to interfere, for that Court is purely a creature of statute.1 Since the issuance of orders for execution after the judgment of ejectment had become final are not appealable, as the Court of Appeals itself has ruled,2 otherwise litigations would never end, and since the prohibition case No. Q-5527 involved the constitutionality of Republic Act No. 2616, an issue of which the Court of Appeals could not take cognizance, said Court clearly had no authority to interfere by prerogative writ in either litigation, for lack of appellate jurisdiction Judge Caluag of Quezon City was, therefore, not bound by the writs so issued by the Court of Appeals. On the second question, the preliminary injunction issued by Judge Caluag was merely an incident to the main (prohibition) case, and evidently had for its object to prevent that the principal case and any remedy to be granted therein should be rendered moot and nugatory by the filing of the condemnation proceedings sought to be prohibited. Issuance of the injunction was authorized by section 7 of Rule 67 of the Rules of Court, dealing with writs, certiorari, prohibition, and mandamus.

Authority is likewise derived from section 6 of Rule 124, concerning the powers and duties of courts. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry into effect may be employed by such court or officer. That the alleged unconstitutionality of Republic Act No. 2616 could be invoked as a defense in the expropriation proceedings does not alter the right of respondent Tuason & Company to invoke it in the prohibition case, without awaiting the initiation of the condemnation case. In any event, the issue of constitutionality would be like a prejudicial question to the expropriation, as it would be a waste of time and effort to appoint evaluation commissioners and debate the market value of the property sought to be condemned if it turned out that the condemnation was illegal. It is urged by amicus curiae that Courts of First Instance have no jurisdiction to entertain actions assailing the constitutionality of statutes or treaties, because section 10 of Article VIII of the Constitution prescribes that — No treaty or law may be declared unconstitutional without the concurrence of twothirds of all the members of the (Supreme) Court. This contention is, however, destroyed by the terms of section 2 of Article VIII, wherein the Constitution itself inhibits Congress from depriving the Supreme Court —

of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance or executive orders or regulations is in question (Emphasis supplied). Plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. Construing both provisions together, it is readily discerned that the two-third vote of the Supreme Court, required by section 10 of Article VIII, conditions only the decisions of the Supreme Court in the exercise of its appellate jurisdiction. It is true that, as argued by the petitioner Land Tenure Administration, the mere fact that a statute is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. But the rule is not without exceptions. In Cochiong vs. Dinglasan, 79 Phil. 125, this Court quoted with approval from 28 Am. Jur. 369-371 the rule that — It is recognized, however, that an injunction will lie to restrain the threatened enforcement of an invalid law where the lawful use and enjoyment of private property will be injuriously affected by its enforcement ..., and the petition for a writ of prohibition in Q-5527 Court of First Instance of Quezon City pleads precisely this threatened injury to the proprietary rights of Tuason & Company, Inc., as owners of the Tatalon Estates. Whether this injury is real or not must be decided on the evidence submitted in that case, and we are in no position to resolve it in the certiorari proceedings now before us. Our task here is merely to determine absence or excess of jurisdiction: and on the facts and applicable law we cannot say that in the issuance of the preliminary injunction by the

Court of First Instance of Quezon City there was such grave abuse of discretion as would constitute excess of jurisdiction. It may be added that the maintenance of the injunction issued by Judge Caluag works no real prejudice at present, not only because we cannot anticipate the final decision of Judge Caluag on the issue of constitutionality, but also because the Land Tenure Administration confesses that it has only two million pesos available to pay for property that, according to the proposed complaint for expropriation, has an area of 1,096,849.50 square meters with a reasonable assessed value of P6,034,865.95. Plainly, the government is not now in a position to take over the possession of the land since it does not have the money that it must deposit as a prerequisite to its entry (section 3 of Rule 69 on Eminent Domain). In moving for the lifting of the preliminary injunction and for a stay of the ejectment proceedings, the Land Tenure Administration and the other movants assume that, upon filing of the condemnation petition, the land owner will be barred from enforcing its final judgments of ejectment against the possessors of the land, even if the Government should not take over the possession of the property involved. This view, in our opinion, is not warranted. We see nothing in the terms of Republic Act No. 2616 to justify the belief that the Legislature intended a departure from the normal course prescribed for eminent domain cases, where the rights of the owner of the land may not be disturbed without previous deposit of the provisional value of the property bought to be condemned. The effectivity of section 4 of Republic Act 2616, discontinuing ejectment proceedings against the present occupants, and restraining any act of disposition of the property, is justifiable only if the Government takes possession of the land in question by depositing its value. It needs no argument to show that by restraining the land owner from enforcing even final judgments in his favor to recover possession of his property, as well as from disposing of it to persons of his choice, he is deprived of the substance of ownership, and his title is left as an empty shell. The land owner would then be deprived of those attributes of ownership that give it value, and his property is virtually taken from him without compensation and in violation of the Constitution, particularly in view of the fact that R.A. 2616 (unlike previous Acts of similar

character) does not even provide for a deposit of the current rentals by the tenants during the pendency of the proceedings (Cf. R.A. No. 1126, section 5). The Bill of Rights, in requiring that "private property shall not be taken for public use without just compensation," and Article XIII, section 4 in prescribing that "Congress may authorize, upon payment of just compensation, the expropriation of lands to be subdivided into small lots and conveyed at cost to individuals," prohibit any disturbance of proprietary rights without coetaneous payment of just indemnity. Hence, the mere filing of the condemnation proceedings for the benefit of tenants cannot, by itself alone, lawfully suspend the condemnee's dominical rights, whether of possession, enjoyment, or disposition. And this is especially the case where final and executory judgments of ejectment have been obtained against the occupants of the property. Whether or not venue was correctly laid in the prohibition case now pending in the Court of First Instance of Quezon City is a question of law that does not affect jurisdiction, and any resolution of the trial Court thereon is reviewable by appeal and not by certiorari.

EN BANC G.R. No. 83896

February 22, 1991

CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815

February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary

of

Environment

and

Natural

Resources;

VICENTE V. JAYME, as Secretary of Finance; SEDFREY In view of the foregoing, judgment is hereby rendered: (a) In Case G.R. No. L-18128, J. M. Tuason & Co., Inc. vs. Court of Appeals et al., setting aside the writ of preliminary injunction issued by the Court of Appeals in its case CAG.R. No. 28842-R, the same being null andvoid for lack of jurisdiction on the part of the Court to take cognizance of said case;

ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology;

(b) In Case G.R. No. L-18672, Republic of the Philippines vs. J. M. Tuason & Co., Inc. et al., dismissing the petition for certiorari, and denying the writs of certiorari and injunction applied for.lawphil.net The Court of First Instance of Quezon City is directed to hear and resolve the prohibition case No. Q-5527 with all practicable dispatch. Without costs. So ordered.

JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication;

GUILLERMO

CARAGUE,

as

Commissioner of the Budget; and SOLITA MONSOD, as Head

of

the

National

Authority, respondents.

Economic

Development

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos

boards of such corporation should either be a secretary, or

from holding, in addition to their primary positions, dual or

and Juan T. David for petitioners in 83896.

undersecretary, or assistant secretary.

multiple positions other than those authorized by the 1987

Antonio P. Coronel for petitioners in 83815.

Petitioners maintain that this Executive Order which, in

Constitution and from receiving any salaries, allowances,

effect,

their

per diems and other forms of privileges and the like

undersecretaries and assistant secretaries to hold other

appurtenant to their questioned positions, and compelling

FERNAN, C.J.:p

government offices or positions in addition to their primary

public respondents to return, reimburse or refund any and

These two (2) petitions were consolidated per resolution

positions, albeit subject to the limitation therein imposed,

all amounts or benefits that they may have received from

dated August 9, 1988 1 and are being resolved jointly as

runs counter to Section 13, Article VII of the 1987

such positions.

both seek a declaration of the unconstitutionality of

Constitution, 2 which provides as follows:

Specifically, petitioner Anti-Graft League of the Philippines

Executive Order No. 284 issued by President Corazon C.

Sec. 13. The President, Vice-President, the Members of

charges that notwithstanding the aforequoted “absolute

Aquino on July 25, 1987. The pertinent provisions of the

the Cabinet, and their deputies or assistants shall not,

and self-executing” provision of the 1987 Constitution, then

assailed Executive Order are:

unless otherwise provided in this Constitution, hold any

Secretary of Justice Sedfrey Ordoñez, construing Section

Sec. 1. Even if allowed by law or by the ordinary functions

other office or employment during their tenure. They shall

13, Article VII in relation to Section 7, par. (2), Article IX-B,

of his position, a member of the Cabinet, undersecretary or

not, during said tenure, directly or indirectly practice any

rendered on July 23, 1987 Opinion No. 73, series of

assistant secretary or other appointive officials of the

other profession, participate in any business, or be

1987, 5 declaring that Cabinet members, their deputies

Executive Department may, in addition to his primary

financially interested in any contract with, or in any

(undersecretaries) and assistant secretaries may hold

position, hold not more than two positions in the

franchise, or special privilege granted by the Government

other public office, including membership in the boards of

government and government corporations and receive the

or any subdivision, agency, or instrumentality thereof,

government corporations: (a) when directly provided for in

corresponding compensation therefor; Provided, that this

including government-owned or controlled corporations or

the Constitution as in the case of the Secretary of Justice

limitation shall not apply to ad hoc bodies or committees,

their subsidiaries. They shall strictly avoid conflict of

who is made an ex-officio member of the Judicial and Bar

or to boards, councils or bodies of which the President is

interest in the conduct of their office.

Council under Section 8, paragraph 1, Article VIII; or (b) if

the Chairman.

It is alleged that the above-quoted Section 13, Article VII

allowed by law; or (c) if allowed by the primary functions of

Sec. 2. If a member of the cabinet, undersecretary or

prohibits public respondents, as members of the Cabinet,

their respective positions; and that on the basis of this

assistant secretary or other appointive official of the

along with the other public officials enumerated in the list

Opinion, the President of the Philippines, on July 25, 1987

Executive Department holds more positions than what is

attached to the petitions as Annex “C” in G.R. No.

or two (2) days before Congress convened on July 27,

allowed in Section 1 hereof, they (sic) must relinquish the

83815 and as Annex “B” in G.R. No. 83896 from holding

1987: promulgated Executive Order No. 284. 6

excess position in favor of the subordinate official who is

any other office or employment during their tenure. In

Petitioner Anti-Graft League of the Philippines objects to

next in rank, but in no case shall any official hold more

addition to seeking a declaration of the unconstitutionality

both DOJ Opinion No. 73 and Executive Order No. 284 as

than two positions other than his primary position.

of Executive Order No. 284, petitioner Anti-Graft League of

they allegedly “lumped together” Section 13, Article VII and

Sec. 3. In order to fully protect the interest of the

the Philippines further seeks in G.R. No. 83815 the

the general provision in another article, Section 7, par. (2),

government

issuance

DECISION

in

government-owned

or

controlled

corporations, at least one-third (1/3) of the members of the

allows

members

of

the

3

Cabinet,

4

prohibition

Article I-XB. This “strained linkage” between the two

and mandamus, as well as a temporary restraining order

provisions, each addressed to a distinct and separate

directing public respondents therein to cease and desist

group of public officers –– one, the President and her

of

the

extraordinary

writs

of

official family, and the other, public servants in general ––

holding of multiple positions which are not related to or

President being allowed to become a Member of the

allegedly

“abolished

the

clearly

separate,

higher,

necessarily included in the position of the public official

Cabinet under the second paragraph of Section 3, Article

exclusive, and mandatory constitutional rank assigned to

concerned (disparate positions).

VII or the Secretary of Justice being designated an ex-

the prohibition against multiple jobs for the President, the

In sum, the constitutionality of Executive Order No. 284 is

officio member of the Judicial and Bar Council under

Vice-President, the members of the Cabinet, and their

being

principal

Article VIII, Sec. 8 (1). Public respondents, on the other

deputies

are the leaders of

submission that it adds exceptions to Section 13, Article

hand, maintain that the phrase “unless otherwise provided

government expected to lead by example.” Article IX-B,

VII other than those provided in the Constitution.

in the Constitution” in Section 13, Article VII makes

Section 7, par. (2) 8 provides:

According to petitioners, by virtue of the phrase “unless

reference to Section 7, par. (2), Article I-XB insofar as the

Sec. 7. . . . . .

otherwise

Unless otherwise allowed by law or by the primary

exceptions against holding any other office or employment

The threshold question therefore is: does the prohibition in

functions of his position, no appointive official shall hold

in Government are those provided in the Constitution,

Section 13, Article VII of the 1987 Constitution insofar as

any other office or employment in the government or any

namely: (1) The Vice-President may be appointed as a

Cabinet members, their deputies or assistants are

subdivision, agency or instrumentality thereof, including

Member of the Cabinet under Section 3, par. (2), Article VII

concerned admit of the broad exceptions made for

government-owned or controlled corporations or their

thereof; and (2) the Secretary of Justice is an ex-

appointive officials in general under Section 7, par. (2),

subsidiaries.

officio member of the Judicial and Bar Council by virtue of

Article I-XB which, for easy reference is quoted anew,

The Solicitor General counters that Department of Justice

Section 8 (1), Article VIII.

thus: “Unless otherwise allowed by law or by the primary

DOJ Opinion No. 73, series of 1987, as further elucidated

Petitioners further argue that the exception to the

functions of his position, no appointive official shall hold

and clarified by DOJ Opinion No. 129, series of 1987 and

prohibition in Section 7, par. (2), Article I-XB on the Civil

any other office or employment in the Government or any

DOJ Opinion No. 155, series of 1988, 10 being the first

Service Commission applies to officers and employees of

subdivision, agency or instrumentality thereof, including

official construction and interpretation by the Secretary of

the Civil Service in general and that said exceptions do not

government-owned or controlled corporation or their

Justice of Section 13, Article VII and par. (2) of Section 7,

apply and cannot be extended to Section 13, Article VII

subsidiaries.”

Article I-XB of the Constitution, involving the same subject

which applies specifically to the President, Vice-President,

We rule in the negative.

of appointments or designations of an appointive executive

Members of the Cabinet and their deputies or assistants.

A foolproof yardstick in constitutional construction is the

official to positions other than his primary position, is

There is no dispute that the prohibition against the

intention underlying the provision under consideration.

“reasonably valid and constitutionally firm,” and that

President, Vice-President, the members of the Cabinet and

Thus, it has been held that the Court in construing a

Executive Order No. 284, promulgated pursuant to DOJ

their deputies or assistants from holding dual or multiple

Constitution should bear in mind the object sought to be

Opinion

positions in the Government admits of certain exceptions.

accomplished by its adoption, and the evils, if any, sought

constitutional. It is worth noting that DOJ Opinion No. 129,

The

public

to be prevented or remedied. A doubtful provision will be

series of 1987 and DOJ Opinion No. 155, series of 1988

respondents lies on the constitutional basis of the

examined in the light of the history of the times, and the

construed the limitation imposed by E.O. No. 284 as not

exception. Petitioners insist that because of the phrase

condition and circumstances under which the Constitution

applying to ex-officio positions or to positions which,

“unless otherwise provided in this Constitution” used in

was framed. The object is to ascertain the reason which

although not so designated as ex-officio are allowed by the

Section 13 of Article VII, the exception must be expressly

induced the framers of the Constitution to enact the

primary functions of the public official, but only to the

provided in the Constitution, as in the case of the Vice-

particular provision and the purpose sought to be

and subalterns, who

7

9

No.

73,

series

of

1987

is

consequently

challenged

provided

disagreement

by

in

petitioners

this

between

on

the

Constitution,”

petitioners

the

and

only

appointive officials mentioned therein are concerned.

accomplished thereby, in order to construe the whole as to

Particularly odious and revolting to the people’s sense of

employment in the government subsuming both elective

make the words consonant to that reason and calculated

propriety and morality in government service were the data

and

to effect that purpose. 11

contained therein that Roberto V. Ongpin was a member

Commission should see it fit to formulate another

The practice of designating members of the Cabinet, their

of the governing boards of twenty-nine (29) governmental

provision, Sec. 13, Article VII, specifically prohibiting the

deputies and assistants as members of the governing

agencies, instrumentalities and corporations; Imelda R.

President, Vice-President, members of the Cabinet, their

bodies or boards of various government agencies and

Marcos of twenty-three (23); Cesar E.A. Virata of twenty-

deputies and assistants from holding any other office or

instrumentalities,

officials,

the

Constitutional

and

two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.

employment during their tenure, unless otherwise provided

Hipolito and Geronimo Z. Velasco, of fourteen each (14);

in the Constitution itself.

legislative powers in this country were exercised by former

Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and

Evidently, from this move as well as in the different

President Ferdinand E. Marcos pursuant to his martial law

Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto

phraseologies of the constitutional provisions in question,

authority. There was a proliferation of newly-created

O. Teodoro, and Edgardo Tordesillas of eleven (11) each;

the intent of the framers of the Constitution was to impose

agencies, instrumentalities and government-owned and

and Lilia Bautista and Teodoro Q. Peña of ten (10) each.

13

a stricter prohibition on the President and his official family

controlled corporations created by presidential decrees

The blatant betrayal of public trust evolved into one of the

in so far as holding other offices or employment in the

and other modes of presidential issuances where Cabinet

serious causes of discontent with the Marcos regime. It

government or elsewhere is concerned.

members, their deputies or assistants were designated to

was therefore quite inevitable and in consonance with the

Moreover, such intent is underscored by a comparison of

head or sit as members of the board with the

overwhelming sentiment of the people that the 1986

Section 13, Article VII with other provisions of the

corresponding

diems,

Constitutional Commission, convened as it was after the

Constitution on the disqualifications of certain public

allowances and other perquisites of office. Most of these

people successfully unseated former President Marcos,

officials or employees from holding other offices or

instrumentalities have remained up to the present time.

should draft into its proposed Constitution the provisions

employment. Under Section 13, Article VI, “(N)o Senator or

This practice of holding multiple offices or positions in the

under consideration which are envisioned to remedy, if not

Member of the House of Representatives may hold any

government soon led to abuses by unscrupulous public

correct, the evils that flow from the holding of multiple

other office or employment in the Government . . .”. Under

officials who took advantage of this scheme for purposes

governmental offices and employment. In fact, as keenly

Section 5(4), Article XVI, “(N)o member of the armed

of self-enrichment. In fact, the holding of multiple offices in

observed by Mr. Justice Isagani A. Cruz during the

forces in the active service shall, at any time, be appointed

government was strongly denounced on the floor of the

deliberations in these cases, one of the strongest selling

in

in

points of the 1987 Constitution during the campaign for its

Government, including government-owned or controlled

reaction to the published report of the Commission on

ratification was the assurance given by its proponents that

corporations or any of their subsidiaries.” Even Section 7

Audit, entitled “1983 Summary Annual Audit Report on:

the scandalous practice of Cabinet members holding

(2), Article IX-B, relied upon by respondents provides

Government-Owned and Controlled Corporations, Self-

multiple positions in the government and collecting

“(U)nless otherwise allowed by law or by the primary

Governing Boards and Commissions” which carried as its

unconscionably excessive compensation therefrom would

functions of his position, no appointive official shall hold

Figure No. 4 a “Roaster of Membership in Governing

be discontinued.

any other office or employment in the Government.”

Boards

But what is indeed significant is the fact that although

It is quite notable that in all these provisions on

Section 7, Article I-XB already contains a blanket

disqualifications to hold other office or employment, the

prohibition against the holding of multiple offices or

prohibition pertains to an office or employment in the

salaries,

government-owned

public

controlled corporations, became prevalent during the time

Batasang

including

appointive

emoluments,

Pambansa. 12 This

of

per

condemnation

Government-Owned

Corporations as of December 31, 1983.”

and

came

Controlled

any

capacity

to

a

civilian

position in

the

government and

government-owned

or

controlled

between the Civil Service prohibitions, originally found in

(2) of Article IX-B would obliterate the distinction so

corporations or their subsidiaries. In striking contrast is the

the General Provisions and the anticipated report on the

carefully set by the framers of the Constitution as to when

wording of Section 13, Article VII which states that “(T)he

Executive Department. Commissioner Foz Commented,

the high-ranking officials of the Executive Branch from the

President, Vice-President, the Members of the Cabinet,

“We actually have to be stricter with the President and the

President to Assistant Secretary, on the one hand, and the

and their deputies or assistants shall not, unless otherwise

members of the Cabinet because they exercise more

generality of civil servants from the rank immediately below

provided in this Constitution, hold any other office or

powers and, therefore, more cheeks and restraints on

Assistant Secretary downwards, on the other, may hold

employment during their tenure.” In the latter provision, the

them are called for because there is more possibility of

any other office or position in the government during their

disqualification is absolute, not being qualified by the

abuse in their case.” 14

tenure.

phrase “in the Government.” The prohibition imposed on

Thus, while all other appointive officials in the civil service

Moreover, respondents’ reading of the provisions in

the President and his official family is therefore all-

are allowed to hold other office or employment in the

question would render certain parts of the Constitution

embracing and covers both public and private office or

government during their tenure when such is allowed by

inoperative. This observation applies particularly to the

employment.

law or by the primary functions of their positions, members

Vice-President who, under Section 13 of Article VII is

Going further into Section 13, Article VII, the second

of the Cabinet, their deputies and assistants may do so

allowed to hold other office or employment when so

sentence provides: “They shall not, during said tenure,

only when expressly authorized by the Constitution itself.

authorized by the Constitution, but who as an elective

directly or indirectly, practice any other profession,

In other words, Section 7, Article I-XB is meant to lay down

public official under Sec. 7, par. (1) of Article I-XB is

participate in any business, or be financially interested in

the general rule applicable to all elective and appointive

absolutely ineligible “for appointment or designation in any

any contract with, or in any franchise, or special privilege

public officials and employees, while Section 13, Article VII

capacity to any public office or position during his tenure.”

granted by the Government or any subdivision, agency or

is meant to be the exception applicable only to the

Surely, to say that the phrase “unless otherwise provided

instrumentality thereof, including government-owned or

President, the Vice- President, Members of the Cabinet,

in this Constitution” found in Section 13, Article VII has

controlled corporations or their subsidiaries.” These

their deputies and assistants.

reference to Section 7, par. (1) of Article I-XB would render

sweeping, all-embracing prohibitions imposed on the

This being the case, the qualifying phrase “unless

meaningless the specific provisions of the Constitution

President and his official family, which prohibitions are not

otherwise provided in this Constitution” in Section 13,

authorizing the Vice-President to become a member of the

similarly imposed on other public officials or employees

Article VII cannot possibly refer to the broad exceptions

Cabinet, 15 and to act as President without relinquishing the

such as the Members of Congress, members of the civil

provided under Section 7, Article I-XB of the 1987

Vice-Presidency where the President shall not have been

service in general and members of the armed forces, are

Constitution. To construe said qualifying phrase as

chosen or fails to qualify. 16 Such absurd consequence can

proof of the intent of the 1987 Constitution to treat the

respondents would have us do, would render nugatory and

be avoided only by interpreting the two provisions under

President and his official family as a class by itself and to

meaningless the manifest intent and purpose of the

consideration as one, i.e., Section 7, par. (1) of Article I-XB

impose upon said class stricter prohibitions.

framers of the Constitution to impose a stricter prohibition

providing the general rule and the other, i.e., Section 13,

Such intent of the 1986 Constitutional Commission to be

on the President, Vice-President, Members of the Cabinet,

Article VII as constituting the exception thereto. In the

stricter with the President and his official family was also

their deputies and assistants with respect to holding other

same manner must Section 7, par. (2) of Article I-XB be

succinctly articulated by Commissioner Vicente Foz after

offices or employment in the government during their

construed vis-à-vis Section 13, Article VII.

Commissioner Regalado Maambong noted during the floor

tenure. Respondents’ interpretation that Section 13 of

It is a well-established rule in Constitutional construction

deliberations and debate that there was no symmetry

Article VII admits of the exceptions found in Section 7, par.

that no one provision of the Constitution is to be separated

from all the others, to be considered alone, but that all the

being ex-officio member of the Judicial and Bar Council by

Bank Governor would then be assisted by lower ranking

provisions bearing upon a particular subject are to be

virtue of Section 8 (1), Article VIII.

employees in providing policy direction in the areas of

brought into view and to be so interpreted as to effectuate

The prohibition against holding dual or multiple offices or

money, banking and credit. 25

the great purposes of the instrument. 17 Sections bearing

employment

the

Indeed, the framers of our Constitution could not have

on a particular subject should be considered and

Constitution must not, however, be construed as applying

intended such absurd consequences. A Constitution,

interpreted together as to effectuate the whole purpose of

to posts occupied by the Executive officials specified

viewed as a continuously operative charter of government,

therein

the Constitution

18

and one section is not to be allowed to

under

Article

is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences,

can be made to stand together. 19

the primary functions of said officials’ office. The reason is

if possible, should be avoided.

In other words, the court must harmonize them, if

that these posts do no comprise “any other office” within

To reiterate, the prohibition under Section 13, Article VII is

practicable, and must lean in favor of a construction which

the contemplation of the constitutional prohibition but are

not to be interpreted as covering positions held without

will render every word operative, rather than one which

properly an imposition of additional duties and functions on

additional

said officials. 23 To characterize these posts otherwise

provided by law and as required by the primary functions

Since the evident purpose of the framers of the 1987

would lead to absurd consequences, among which are:

of the concerned official’s office. The term ex-officio means

Constitution is to impose a stricter prohibition on the

The President of the Philippines cannot chair the National

“from office; by virtue of office.” It refers to an “authority

President, Vice-President, members of the Cabinet, their

Security Council reorganized under Executive Order No.

derived from official character merely, not expressly

deputies and assistants with respect to holding multiple

115 (December 24, 1986). Neither can the Vice-President,

conferred upon the individual character, but rather

offices or employment in the government during their

the Executive Secretary, and the Secretaries of National

annexed to the official position.” Ex-officio likewise denotes

tenure, the exception to this prohibition must be read with

Defense, Justice, Labor and Employment and Local

an “act done in an official character, or as a consequence

equal severity. On its face, the language of Section 13,

Government sit in this Council, which would then have no

of office, and without any other appointment or authority

Article VII is prohibitory so that it must be understood as

reason to exist for lack of a chairperson and members. The

than that conferred by the office.” 27 An ex-officio member

intended to be a positive and unequivocal negation of the

respective undersecretaries and assistant secretaries,

of a board is one who is a member by virtue of his title to a

privilege of holding multiple government offices or

would also be prohibited.

certain

employment. Verily, wherever the language used in the

The Secretary of Labor and Employment cannot chair the

appointment. 28 To illustrate, by express provision of law,

constitution is prohibitory, it is to be understood as

Board of Trustees of the National Manpower and Youth

the Secretary of Transportation and Communications is

intended to be a positive and unequivocal negation.

in

of

an ex-

21

compensation

VII

officio capacity as provided by law and as required 22 by

20

additional

13,

defeat another, if by any reasonable construction, the two

may make the words idle and nugatory.

without

Section

compensation

office,

and

26

in ex-officio capacities

without

further

warrant

as

or

The

Council (NMYC) or the Philippine Overseas Employment

the ex-officio Chairman of the Board of the Philippine Ports

phrase “unless otherwise provided in this Constitution”

Administration (POEA), both of which are attached to his

Authority, 29 and the Light Rail Transit Authority. 30

must be given a literal interpretation to refer only to those

department for policy coordination and guidance. Neither

The Court had occasion to explain the meaning of an ex-

particular instances cited in the Constitution itself, to wit:

can his Undersecretaries and Assistant Secretaries chair

officio position

the Vice-President being appointed as a member of the

these agencies.

Control and Inspection Board, 31 thus: “An examination of

Cabinet under Section 3, par. (2), Article VII; or acting as

The Secretaries of Finance and Budget cannot sit in the

President in those instances provided under Section 7,

Monetary

respective

for the chairman and members of the Board to qualify they

pars. (2) and (3), Article VII; and, the Secretary of Justice

undersecretaries and assistant secretaries. The Central

need only be designated by the respective department

Board. 24 Neither

can

their

in Rafael

vs. Embroidery

and

Apparel

section 2 of the questioned statute (R.A. 3137) reveals that

heads. With the exception of the representative from the

limited to chairmanships or directorships in government-

capacity as provided by law, without receiving any

private sector, they sit ex-officio. In order to be designated

owned or controlled corporations and their subsidiaries.

additional compensation therefor.

they must already be holding positions in the offices

Mandating additional duties and functions to the President,

The ex-officio position

mentioned in the law. Thus, for instance, one who does

Vice-President, Cabinet Members, their deputies or

contemplation part of the principal office, it follows that the

not hold a previous appointment in the Bureau of Customs,

assistants which are not inconsistent with those already

official concerned has no right to receive additional

cannot, under the act, be designated a representative from

prescribed by their offices or appointments by virtue of

compensation for his services in the said position. The

that office. The same is true with respect to the

their special knowledge, expertise and skill in their

reason is that these services are already paid for and

representatives

new

respective executive offices is a practice long-recognized

covered by the compensation attached to his principal

appointments are necessary. This is as it should be,

in many jurisdictions. It is a practice justified by the

office. It should be obvious that if, say, the Secretary of

because the representatives so designated merely perform

demands of efficiency, policy direction, continuity and

Finance attends a meeting of the Monetary Board as

duties in the Board in addition to those already performed

coordination among the different offices in the Executive

an ex-officio member thereof, he is actually and in legal

from

the

other

under their original appointments.”

offices.

No

32

being

actually

and

in

legal

Branch in the discharge of its multifarious tasks of

contemplation performing the primary function of his

The term “primary” used to describe “functions” refers to

executing and implementing laws affecting national

principal office in defining policy in monetary and banking

the order of importance and thus means chief or principal

interest and general welfare and delivering basic services

matters, which come under the jurisdiction of his

function. The term is not restricted to the singular but may

to the people. It is consistent with the power vested on the

department. For such attendance, therefore, he is not

refer to the plural. 33 The additional duties must not only be

President and his alter egos, the Cabinet members, to

entitled to collect any extra compensation, whether it be in

closely related to, but must be required by the official’s

have control of all the executive departments, bureaus and

the form of a per them or an honorarium or an allowance,

primary functions. Examples of designations to positions

offices and to ensure that the laws are faithfully

or some other such euphemism. By whatever name it is

by virtue of one’s primary functions are the Secretaries of

executed. 35 Without these additional duties and functions

designated, such additional compensation is prohibited by

Finance and Budget sitting as members of the Monetary

being assigned to the President and his official family to sit

the Constitution.

Board,

and

in the governing bodies or boards of governmental

It is interesting to note that during the floor deliberations on

Communications acting as Chairman of the Maritime

agencies or instrumentalities in an ex-officio capacity as

the proposal of Commissioner Christian Monsod to add to

and

the

Industry Authority

34

Secretary

of

Transportation

provided by law and as required by their primary functions,

Section 7, par. (2), Article IX-B, originally found as Section

If the functions required to be performed are merely

and the Civil Aeronautics Board.

they would be supervision, thereby deprived of the means

3 of the General Provisions, the exception “unless required

incidental, remotely related, inconsistent, incompatible, or

for control and resulting in an unwieldy and confused

by the functions of his position,” 36 express reference to

otherwise alien to the primary function of a cabinet official,

bureaucracy.

certain

such additional functions would fall under the purview of

It bears repeating though that in order that such additional

members of the Cabinet were made.

“any other office” prohibited by the Constitution. An

duties or functions may not transgress the prohibition

query of Commissioner Blas Ople, Commissioner Monsod

example would be the Press Undersecretary sitting as a

embodied in Section 13, Article VII of the 1987

pointed out that there are instances when although not

member of the Board of the Philippine Amusement and

Constitution, such additional duties or functions must

required by current law, membership of certain high-

Gaming Corporation. The same rule applies to such

be required by the primary functions of the official

ranking

positions which confer on the cabinet official management

concerned, who is to perform the same in an ex-officio

corporations is necessary by reason of said officials’

functions and/or monetary compensation, such as but not

high-ranking

executive

appointive

officials

public 37

officials

like

Responding to a

in other

offices

and

primary functions. The example given by Commissioner Monsod was the Minister of Trade and Industry.

38

have re-worded said Section 13 to conform to the wider

or employment in the government, except in those cases

exceptions provided in then Section 3 of the proposed

specified in the Constitution itself and as above clarified

While this exchange between Commissioners Monsod and

general Provisions, later placed as Section 7, par. (2) of

with respect to posts held without additional compensation

Ople may be used as authority for saying that additional

Article IX-B on the Civil Service Commission.

in an ex-officio capacity as provided by law and as

functions and duties flowing from the primary functions of

That this exception would in the final analysis apply also to

required by the primary functions of their office, the citation

the official may be imposed upon him without offending the

the President and his official family is by reason of the

of Cabinet members (then called Ministers) as examples

constitutional prohibition under consideration, it cannot,

legal principles governing additional functions and duties

during the debate and deliberation on the general rule laid

however, be taken as authority for saying that this

of public officials rather than by virtue of Section 7, par. 2,

down for all appointive officials should be considered as

exception is by virtue of Section 7, par. (2) of Article I-XB.

Article IX-B At any rate, we have made it clear that only the

mere personal opinions which cannot override the

This colloquy between the two Commissioners took place

additional functions and duties “required,” as opposed to

constitution’s

in the plenary session of September 27, 1986. Under

“allowed,” by the primary functions may be considered as

understanding thereof.

consideration then was Section 3 of Committee Resolution

not constituting “any other office.”

In the light of the construction given to Section 13, Article

No. 531 which was the proposed article on General

While it is permissible in this jurisdiction to consult the

VII in relation to Section 7, par. (2), Article IX-B of the 1987

Provisions. 39 At that time, the article on the Civil Service

debates and proceedings of the constitutional convention

Constitution, Executive Order No. 284 dated July 23, 1987

Commission had been approved on third reading on July

in order to arrive at the reason and purpose of the resulting

is unconstitutional. Ostensibly restricting the number of

22, 1986, 40 while the article on the Executive Department,

Constitution, resort thereto may be had only when other

positions that Cabinet members, undersecretaries or

containing the more specific prohibition in Section 13, had

guides fail 42 as said proceedings are powerless to vary the

assistant secretaries may hold in addition to their primary

also been earlier approved on third reading on August 26,

terms of the Constitution when the meaning is clear.

position to not more than two (2) positions in the

1986. 41It was only after the draft Constitution had

Debates in the constitutional convention “are of value as

government and government corporations, Executive

undergone reformatting and “styling” by the Committee on

showing the views of the individual members, and as

Order No. 284 actually allows them to hold multiple offices

Style that said Section 3 of the General Provisions became

indicating the reasons for their votes, but they give us no

or employment in direct contravention of the express

Section 7, par. (2) of Article IX-B and reworded “Unless

light as to the views of the large majority who did not talk,

mandate of Section 13, Article VII of the 1987 Constitution

otherwise allowed by law or by the primary functions of his

much less of the mass of our fellow citizens whose votes

prohibiting them from doing so, unless otherwise provided

position. . . .”

at the polls gave that instrument the force of fundamental

in the 1987 Constitution itself.

What was clearly being discussed then were general

law. We think it safer to construe the constitution from what

The Court is alerted by respondents to the impractical

principles which would serve as constitutional guidelines in

appears

interpretation

consequences that will result from a strict application of the

the absence of specific constitutional provisions on the

therefore depends more on how it was understood by the

prohibition mandated under Section 13, Article VII on the

matter. What was primarily at issue and approved on that

people adopting it than in the framers’ understanding

operations of the Government, considering that Cabinet

occasion was the adoption of the qualified and delimited

thereof. 44

members would be stripped of their offices held in an ex-

phrase “primary functions” as the basis of an exception to

It being clear, as it was in fact one of its best selling points,

officio capacity, by reason of their primary positions or by

the general rule covering all appointive public officials. Had

that the 1987 Constitution seeks to prohibit the President,

virtue of legislation. As earlier clarified in this decision, ex-

the Constitutional Commission intended to dilute the

Vice-President, members of the Cabinet, their deputies or

officio posts held by the executive official concerned

specific prohibition in said Section 13 of Article VII, it could

assistants from holding during their tenure multiple offices

without additional compensation as provided by law and as

upon

its

face.”

43

The

proper

manifest

intent

and

the

people’

required by the primary functions of his office do not fall

other named respondents, the petitions have become

under the definition of “any other office” within the

moot and academic as they are no longer occupying the

contemplation of the constitutional prohibition. With

positions complained of.

respect to other offices or employment held by virtue of

During

legislation, including chairmanships or directorships in

respondents may be considered de facto officers and as

government-owned or controlled corporations and their

such

their entitled 46

tenure to

in

the

emoluments

questioned for

actual

positions, services

It has been held that “in cases where there is

subsidiaries, suffice it to say that the feared impractical

rendered.

consequences are more apparent than real. Being head of

no de jure, officer, a de facto officer, who, in good faith has

an executive department is no mean job. It is more than a

had possession of the office and has discharged the duties

full-time job, requiring full attention, specialized knowledge,

pertaining thereto, is legally entitled to the emoluments of

skills and expertise. If maximum benefits are to be derived

the office, and may in an appropriate action recover the

from a department head’s ability and expertise, he should

salary, fees and other compensations attached to the

be allowed to attend to his duties and responsibilities

office. This doctrine is, undoubtedly, supported on

without the distraction of other governmental offices or

equitable grounds since it seems unjust that the public

employment. He should be precluded from dissipating his

should benefit by the services of an officer de facto and

efforts, attention and energy among too many positions of

then be freed from all liability to pay any one for such

responsibility, which may result in haphazardness and

services. 47 Any per diem, allowances or other emoluments

inefficiency. Surely the advantages to be derived from this

received by the respondents by virtue of actual services

concentration of attention, knowledge and expertise,

rendered in the questioned positions may therefore be

particularly at this stage of our national and economic

retained by them.

development, far outweigh the benefits, if any, that may be

WHEREFORE, subject to the qualification above-stated,

gained from a department head spreading himself too thin

the petitions are GRANTED. Executive Order No. 284 is

and taking in more than what he can handle.

hereby declared null and void and is accordingly set aside.

Finding Executive Order No. 284 to be constitutionally

SO ORDERED.

infirm, the court hereby orders respondents Secretary of

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,

Environment and Natural Resources Fulgencio Factoran,

Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado

Jr.,

Secretary

of

Local

Government 45 Luis

Santos,

and Davide, Jr., JJ., concur.

Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their

EN BANC

other offices or employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries. With respect to the

[G.R. No. 127882. January 27, 2004]

LA

BUGAL-B’LAAN TRIBAL ASSOCIATION, INC., represented by its Chairman F’LONG MIGUEL M. LUMAYONG, WIGBERTO E. TAÑADA, PONCIANO BENNAGEN, JAIME TADEO, RENATO R. CONSTANTINO, JR., F’LONG AGUSTIN M. DABIE, ROBERTO P. AMLOY, RAQIM L. DABIE, SIMEON H. DOLOJO, IMELDA M. GANDON, LENY B. GUSANAN, MARCELO L. GUSANAN, QUINTOL A. LABUAYAN, LOMINGGES D. LAWAY, BENITA P. TACUAYAN, minors JOLY L. BUGOY, represented by his father UNDERO D. BUGOY, ROGER M. DADING, represented by his father ANTONIO L. DADING, ROMY M. LAGARO, represented by his father TOTING A. LAGARO, MIKENY JONG B. LUMAYONG, represented by his father MIGUEL M. LUMAYONG, RENE T. MIGUEL, represented by his mother EDITHA T. MIGUEL, ALDEMAR L. SAL, represented by his father DANNY M. SAL, DAISY RECARSE, represented by her mother LYDIA S. SANTOS, EDWARD M. EMUY, ALAN P. MAMPARAIR, MARIO L. MANGCAL, ALDEN S. TUSAN, AMPARO S. YAP, VIRGILIO CULAR, MARVIC M.V.F. LEONEN, JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR, JR., represented by their father VIRGILIO CULAR, PAUL ANTONIO P. VILLAMOR, represented by his parents JOSE VILLAMOR and ELIZABETH PUA-VILLAMOR, ANA GININA R. TALJA, represented by her father MARIO JOSE B. TALJA, SHARMAINE R. CUNANAN, represented by her father ALFREDO M. CUNANAN, ANTONIO JOSE A. VITUG III, represented by his mother ANNALIZA A. VITUG, LEAN D. NARVADEZ, represented by his father MANUEL E. NARVADEZ, JR., ROSERIO MARALAG LINGATING, represented by her father RIO OLIMPIO A. LINGATING, MARIO JOSE B. TALJA, DAVID E. DE VERA, MARIA MILAGROS L. SAN JOSE, SR., SUSAN O. BOLANIO, OND, LOLITA G. DEMONTEVERDE, BENJIE L. NEQUINTO,[1] ROSE LILIA S. ROMANO, ROBERTO S. VERZOLA, EDUARDO AURELIO C. REYES, LEAN LOUEL A. PERIA, represented by his father ELPIDIO V. PERIA,[2] GREEN FORUM PHILIPPINES, GREEN FORUM WESTERN VISAYAS, (GFWV), ENVIRONMETAL LEGAL ASSISTANCE

CENTER (ELAC), PHILIPPINE KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN),[3] KAISAHAN TUNGO SA KAUNLARAN NG KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN), PARTNERSHIP FOR AGRARIAN REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS), PHILIPPINE PART`NERSHIP FOR THE DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA), WOMEN’S LEGAL BUREAU (WLB), CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI), UPLAND DEVELOPMENT INSTITUTE (UDI), KINAIYAHAN FOUNDATION, INC., SENTRO NG ALTERNATIBONG LINGAP PANLIGAL (SALIGAN), LEGAL RIGHTS AND NATURAL RESOURCES CENTER, INC. (LRC), petitioners, vs. VICTOR O. RAMOS, SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), HORACIO RAMOS, DIRECTOR, MINES AND GEOSCIENCES BUREAU (MGBDENR), RUBEN TORRES, EXECUTIVE SECRETARY, and WMC (PHILIPPINES), [4] INC. respondents. DECISION CARPIO-MORALES, J.: The present petition for mandamus and prohibition assails the constitutionality of Republic Act No. 7942,[5] otherwise known as the PHILIPPINE MINING ACT OF 1995, along with the Implementing Rules and Regulations issued pursuant thereto, Department of Environment and Natural Resources (DENR) Administrative Order 96-40, and of the Financial and Technical Assistance Agreement (FTAA) entered into on March 30, 1995 by the Republic of the Philippines and WMC (Philippines), Inc. (WMCP), a corporation organized under Philippine laws. On July 25, 1987, then President Corazon C. Aquino issued Executive Order (E.O.) No. 279[6] authorizing the DENR Secretary to

accept, consider and evaluate proposals from foreignowned corporations or foreign investors for contracts or agreements involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, which, upon appropriate recommendation of the Secretary, the President may execute with the foreign proponent. In entering into such proposals, the President shall consider the real contributions to the economic growth and general welfare of the country that will be realized, as well as the development and use of local scientific and technical resources that will be promoted by the proposed contract or agreement. Until Congress shall determine otherwise, large-scale mining, for purpose of this Section, shall mean those proposals for contracts or agreements for mineral resources exploration, development, and utilization involving a committed capital investment in a single mining unit project of at least Fifty Million Dollars in United States Currency (US $50,000,000.00).[7]

cancellation, revocation and termination of agreements and permits.[32]

On March 3, 1995, then President Fidel V. Ramos approved R.A. No. 7942 to “govern the exploration, development, utilization and processing of all mineral resources.”[8] R.A. No. 7942 defines the modes of mineral agreements for mining operations,[9] outlines the procedure for their filing and approval,[10] assignment/transfer[11] and withdrawal,[12] and fixes their terms.[13] Similar provisions govern financial or technical assistance agreements.[14]

On January 10, 1997, counsels for petitioners sent a letter to the DENR Secretary demanding that the DENR stop the implementation of R.A. No. 7942 and DAO No. 96-40,[35] giving the DENR fifteen days from receipt[36] to act thereon. The DENR, however, has yet to respond or act on petitioners’ letter.[37]

The law prescribes the qualifications of contractors[15] and grants them certain rights, including timber,[16] water[17] and easement[18] rights, and the right to possess explosives.[19] Surface owners, occupants, or concessionaires are forbidden from preventing holders of mining rights from entering private lands and concession areas.[20] A procedure for the settlement of conflicts is likewise provided for.[21] The Act restricts the conditions for exploration,[22] quarry[23] and other[24] permits. It regulates the transport, sale and processing of minerals,[25] and promotes the development of mining communities, science and mining technology,[26] and safety and environmental protection.[27] The government’s share in the agreements is spelled out and allocated,[28] taxes and fees are imposed,[29] incentives granted.[30] Aside from penalizing certain acts,[31] the law likewise specifies grounds for the

On April 9, 1995, 30 days following its publication on March 10, 1995 in Malaya and Manila Times, two newspapers of general circulation, R.A. No. 7942 took effect.[33] Shortly before the effectivity of R.A. No. 7942, however, or on March 30, 1995, the President entered into an FTAA with WMCP covering 99,387 hectares of land in South Cotabato, Sultan Kudarat, Davao del Sur and North Cotabato.[34] On August 15, 1995, then DENR Secretary Victor O. Ramos issued DENR Administrative Order (DAO) No. 9523, s. 1995, otherwise known as the Implementing Rules and Regulations of R.A. No. 7942. This was later repealed by DAO No. 96-40, s. 1996 which was adopted on December 20, 1996.

Petitioners thus filed the present petition for prohibition and mandamus, with a prayer for a temporary restraining order. They allege that at the time of the filing of the petition, 100 FTAA applications had already been filed, covering an area of 8.4 million hectares,[38] 64 of which applications are by fully foreign-owned corporations covering a total of 5.8 million hectares, and at least one by a fully foreign-owned mining company over offshore areas.[39] Petitioners claim that the DENR Secretary acted without or in excess of jurisdiction: I x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows fully foreign owned corporations to explore, develop, utilize and exploit mineral resources in a manner contrary to Section 2, paragraph 4, Article XII of the Constitution;

II x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows the taking of private property without the determination of public use and for just compensation; III x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it violates Sec. 1, Art. III of the Constitution;

x x x in recommending approval of and implementing the Financial and Technical Assistance Agreement between the President of the Republic of the Philippines and Western Mining Corporation Philippines Inc. because the same is illegal and unconstitutional.[40] They pray that the Court issue an order: (a) Permanently enjoining respondents from acting on any application for Financial or Technical Assistance Agreements; (b) Declaring the Philippine Mining Act of 1995 or Republic Act No. 7942 as unconstitutional and null and void;

IV x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows enjoyment by foreign citizens as well as fully foreign owned corporations of the nation’s marine wealth contrary to Section 2, paragraph 2 of Article XII of the Constitution; V x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows priority to foreign and fully foreign owned corporations in the exploration, development and utilization of mineral resources contrary to Article XII of the Constitution; VI x x x in signing and promulgating DENR Administrative Order No. 96-40 implementing Republic Act No. 7942, the latter being unconstitutional in that it allows the inequitable sharing of wealth contrary to Sections [sic] 1, paragraph 1, and Section 2, paragraph 4[,] [Article XII] of the Constitution; VII

(c) Declaring the Implementing Rules and Regulations of the Philippine Mining Act contained in DENR Administrative Order No. 96-40 and all other similar administrative issuances as unconstitutional and null and void; and (d) Cancelling the Financial and Technical Assistance Agreement issued to Western Mining Philippines, Inc. as unconstitutional, illegal and null and void.[41] Impleaded as public respondents are Ruben Torres, the then Executive Secretary, Victor O. Ramos, the then DENR Secretary, and Horacio Ramos, Director of the Mines and Geosciences Bureau of the DENR. Also impleaded is private respondent WMCP, which entered into the assailed FTAA with the Philippine Government. WMCP is owned by WMC Resources International Pty., Ltd. (WMC), “a wholly owned subsidiary of Western Mining Corporation Holdings Limited, a publicly listed major Australian mining and exploration company.”[42] By WMCP’s information, “it is a 100% owned subsidiary of WMC LIMITED.”[43] Respondents, aside from meeting petitioners’ contentions, argue that the requisites for judicial inquiry have not been met and that the petition does not comply with the criteria for prohibition and mandamus. Additionally, respondent WMCP argues that there has been a violation of the rule on hierarchy of courts.

After petitioners filed their reply, this Court granted due course to the petition. The parties have since filed their respective memoranda. WMCP subsequently filed a Manifestation dated September 25, 2002 alleging that on January 23, 2001, WMC sold all its shares in WMCP to Sagittarius Mines, Inc. (Sagittarius), a corporation organized under Philippine laws.[44] WMCP was subsequently renamed “Tampakan Mineral Resources Corporation.”[45] WMCP claims that at least 60% of the equity of Sagittarius is owned by Filipinos and/or Filipino-owned corporations while about 40% is owned by Indophil Resources NL, an Australian company.[46] It further claims that by such sale and transfer of shares, “WMCP has ceased to be connected in any way with WMC.”[47] By virtue of such sale and transfer, the DENR Secretary, by Order of December 18, 2001,[48] approved the transfer and registration of the subject FTAA from WMCP to Sagittarius. Said Order, however, was appealed by Lepanto Consolidated Mining Co. (Lepanto) to the Office of the President which upheld it by Decision of July 23, 2002.[49] Its motion for reconsideration having been denied by the Office of the President by Resolution of November 12, 2002,[50] Lepanto filed a petition for review[51] before the Court of Appeals. Incidentally, two other petitions for review related to the approval of the transfer and registration of the FTAA to Sagittarius were recently resolved by this Court.[52] It bears stressing that this case has not been rendered moot either by the transfer and registration of the FTAA to a Filipino-owned corporation or by the nonissuance of a temporary restraining order or a preliminary injunction to stay the above-said July 23, 2002 decision of the Office of the President.[53] The validity of the transfer remains in dispute and awaits final judicial determination. This assumes, of course, that such transfer cures the FTAA’s alleged unconstitutionality, on which question judgment is reserved. WMCP also points out that the original claimowners of the major mineralized areas included in the WMCP FTAA, namely, Sagittarius, Tampakan Mining Corporation, and Southcot Mining Corporation, are all Filipino-owned corporations,[54] each of which was a holder of an approved Mineral Production Sharing Agreement awarded in 1994, albeit their respective mineral claims were subsumed in

the WMCP FTAA;[55] and that these three companies are the same companies that consolidated their interests in Sagittarius to whom WMC sold its 100% equity in WMCP.[56]WMCP concludes that in the event that the FTAA is invalidated, the MPSAs of the three corporations would be revived and the mineral claims would revert to their original claimants.[57] These circumstances, while informative, are hardly significant in the resolution of this case, it involving the validity of the FTAA, not the possible consequences of its invalidation. Of the above-enumerated seven grounds cited by petitioners, as will be shown later, only the first and the last need be delved into; in the latter, the discussion shall dwell only insofar as it questions the effectivity of E. O. No. 279 by virtue of which order the questioned FTAA was forged. I Before going into the substantive issues, the procedural questions posed by respondents shall first be tackled.

REQUISITES FOR JUDICIAL REVIEW

When an issue of constitutionality is raised, this Court can exercise its power of judicial review only if the following requisites are present: (1) The appropriate case;

existence

of

an

actual

and

(2) A personal and substantial interest of the party raising the constitutional question; (3) The exercise of judicial review is pleaded at the earliest opportunity; and (4) The mota of the case. [58]

constitutional

question

is

the lis

Respondents claim that the first three requisites are not present.

Section 1, Article VIII of the Constitution states that “(j)udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.” The power of judicial review, therefore, is limited to the determination of actual cases and controversies.[59] An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory,[60] lest the decision of the court would amount to an advisory opinion.[61] The power does not extend to hypothetical questions[62] since any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.[63] “Legal standing” or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged,[64] alleging more than a generalized grievance.[65] The gist of the question of standing is whether a party alleges “such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.”[66] Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing.[67] Petitioners traverse a wide range of sectors. Among them are La Bugal B’laan Tribal Association, Inc., a farmers and indigenous people’s cooperative organized under Philippine laws representing a community actually affected by the mining activities of WMCP, members of said cooperative,[68] as well as other residents of areas also affected by the mining activities of WMCP.[69] These petitioners have standing to raise the constitutionality of the questioned FTAA as they allege a personal and substantial injury. They claim that they would suffer “irremediable displacement”[70] as a result of the implementation of the FTAA allowing WMCP to conduct mining activities in their area of residence. They thus meet the appropriate case requirement as they assert an interest adverse to that of respondents who, on the other hand, insist on the FTAA’s validity.

In view of the alleged impending injury, petitioners also have standing to assail the validity of E.O. No. 279, by authority of which the FTAA was executed. Public respondents maintain that petitioners, being strangers to the FTAA, cannot sue either or both contracting parties to annul it.[71] In other words, they contend that petitioners are not real parties in interest in an action for the annulment of contract. Public respondents’ contention fails. The present action is not merely one for annulment of contract but for prohibition and mandamus. Petitioners allege that public respondents acted without or in excess of jurisdiction in implementing the FTAA, which they submit is unconstitutional. As the case involves constitutional questions, this Court is not concerned with whether petitioners are real parties in interest, but with whether they have legal standing. As held in Kilosbayan v. Morato:[72] x x x. “It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas.[”] (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328 [1985]) Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence, the question in standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” (Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 [1962].) As earlier stated, petitioners meet this requirement.

The challenge against the constitutionality of R.A. No. 7942 and DAO No. 96-40 likewise fulfills the requisites of justiciability. Although these laws were not in force when the subject FTAA was entered into, the question as to their validity is ripe for adjudication. The WMCP FTAA provides: 14.3 Future Legislation Any term and condition more favourable to Financial &Technical Assistance Agreement contractors resulting from repeal or amendment of any existing law or regulation or from the enactment of a law, regulation or administrative order shall be considered a part of this Agreement. It is undisputed that R.A. No. 7942 and DAO No. 96-40 contain provisions that are more favorable to WMCP, hence, these laws, to the extent that they are favorable to WMCP, govern the FTAA. In addition, R.A. No. 7942 explicitly makes certain provisions apply to pre-existing agreements. SEC. 112. Non-impairment of Existing Mining/Quarrying Rights. – x x x That the provisions of Chapter XIV on government share in mineral production-sharing agreement and of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or contractor unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to avail of said provisions x x x Provided, finally, That such leases, production-sharing agreements, financial or technical assistance agreements shall comply with the applicable provisions of this Act and its implementing rules and regulations. As there is no suggestion that WMCP has indicated its intention not to avail of the provisions of Chapter XVI of R.A. No. 7942, it can safely be presumed that they apply to the WMCP FTAA. Misconstruing the application of the third requisite for judicial review – that the exercise of the review is pleaded

at the earliest opportunity – WMCP points out that the petition was filed only almost two years after the execution of the FTAA, hence, not raised at the earliest opportunity. The third requisite should not be taken to mean that the question of constitutionality must be raised immediately after the execution of the state action complained of. That the question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised later.[73] A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the mere failure of the proper party to promptly file a case to challenge the same.

PROPRIETY OF PROHIBITION AND MANDAMUS

Before the effectivity in July 1997 of the Revised Rules of Civil Procedure, Section 2 of Rule 65 read: SEC. 2. Petition for prohibition. – When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceeding in the action or matter specified therein. Prohibition is a preventive remedy.[74] It seeks a judgment ordering the defendant to desist from continuing with the commission of an act perceived to be illegal.[75] The petition for prohibition at bar is thus an appropriate remedy. While the execution of the contract itself may be fait accompli, its implementation is not. Public respondents, in behalf of the Government, have obligations to fulfill under said contract. Petitioners seek to prevent them from fulfilling such obligations on the theory that the contract is unconstitutional and, therefore, void.

The propriety of a petition for prohibition being upheld, discussion of the propriety of the mandamus aspect of the petition is rendered unnecessary.

HIERARCHY OF COURTS

The contention that the filing of this petition violated the rule on hierarchy of courts does not likewise lie. The rule has been explained thus: Between two courts of concurrent original jurisdiction, it is the lower court that should initially pass upon the issues of a case. That way, as a particular case goes through the hierarchy of courts, it is shorn of all but the important legal issues or those of first impression, which are the proper subject of attention of the appellate court. This is a procedural rule borne of experience and adopted to improve the administration of justice. This Court has consistently enjoined litigants to respect the hierarchy of courts. Although this Court has concurrent jurisdiction with the Regional Trial Courts and the Court of Appeals to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give a party unrestricted freedom of choice of court forum. The resort to this Court’s primary jurisdiction to issue said writs shall be allowed only where the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify such invocation. We held in People v. Cuaresma that: A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent

further over-crowding of the Court’s docket x x x.[76] [Emphasis supplied.] The repercussions of the issues in this case on the Philippine mining industry, if not the national economy, as well as the novelty thereof, constitute exceptional and compelling circumstances to justify resort to this Court in the first instance. In all events, this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved.[77]When the issues raised are of paramount importance to the public, this Court may brush aside technicalities of procedure.[78] II Petitioners contend that E.O. No. 279 did not take effect because its supposed date of effectivity came after President Aquino had already lost her legislative powers under the Provisional Constitution. And they likewise claim that the WMC FTAA, which was entered into pursuant to E.O. No. 279, violates Section 2, Article XII of the Constitution because, among other reasons: (1) It allows foreign-owned companies to extend more than mere financial or technical assistance to the State in the exploitation, development, and utilization of minerals, petroleum, and other mineral oils, and even permits foreign owned companies to “operate and manage mining activities.” (2) It allows foreign-owned companies to extend both technical and financial assistance, instead of “either technical or financial assistance.” To appreciate the import of these issues, a visit to the history of the pertinent constitutional provision, the concepts contained therein, and the laws enacted pursuant thereto, is in order. Section 2, Article XII reads in full: Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife,

flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreignowned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

THE SPANISH REGIME

AND THE REGALIAN DOCTRINE

The first sentence of Section 2 embodies the Regalian doctrine or jura regalia. Introduced by Spain into these Islands, this feudal concept is based on the State’s power of dominium, which is the capacity of the State to own or acquire property.[79] In its broad sense, the term “jura regalia” refers to royal rights, or those rights which the King has by virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right of property or propriedad. These were rights enjoyed during feudal times by the king as the sovereign. The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title. By fiction of law, the King was regarded as the original proprietor of all lands, and the true and only source of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit of conquest.[80] The Philippines having passed to Spain by virtue of discovery and conquest,[81] earlier Spanish decrees declared that “all lands were held from the Crown.”[82] The Regalian doctrine extends not only to land but also to “all natural wealth that may be found in the bowels of the earth.”[83] Spain, in particular, recognized the unique value of natural resources, viewing them, especially minerals, as an abundant source of revenue to finance its wars against other nations.[84] Mining laws during the Spanish regime reflected this perspective.[85]

THE AMERICAN OCCUPATION AND THE CONCESSION REGIME

By the Treaty of Paris of December 10, 1898, Spain ceded “the archipelago known as the Philippine Islands” to

the United States. The Philippines was hence governed by means of organic acts that were in the nature of charters serving as a Constitution of the occupied territory from 1900 to 1935.[86] Among the principal organic acts of the Philippines was the Act of Congress of July 1, 1902, more commonly known as the Philippine Bill of 1902, through which the United States Congress assumed the administration of the Philippine Islands.[87] Section 20 of said Bill reserved the disposition of mineral lands of the public domain from sale. Section 21 thereof allowed the free and open exploration, occupation and purchase of mineral deposits not only to citizens of the Philippine Islands but to those of the United States as well: Sec. 21. That all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase, and the land in which they are found, to occupation and purchase, by citizens of the United States or of said Islands: Provided, That when on any lands in said Islands entered and occupied as agricultural lands under the provisions of this Act, but not patented, mineral deposits have been found, the working of such mineral deposits is forbidden until the person, association, or corporation who or which has entered and is occupying such lands shall have paid to the Government of said Islands such additional sum or sums as will make the total amount paid for the mineral claim or claims in which said deposits are located equal to the amount charged by the Government for the same as mineral claims. Unlike Spain, the United States considered natural resources as a source of wealth for its nationals and saw fit to allow both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to private mineral lands.[88] A person who acquired ownership over a parcel of private mineral land pursuant to the laws then prevailing could exclude other persons, even the State, from exploiting minerals within his property.[89] Thus, earlier jurisprudence[90] held that: A valid and subsisting location of mineral land, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the present and exclusive possession of the lands located, and this exclusive right of possession and

enjoyment continues during the entire life of the location. x x x. x x x. The discovery of minerals in the ground by one who has a valid mineral location perfects his claim and his location not only against third persons, but also against the Government. x x x. [Italics in the original.] The Regalian doctrine and the American system, therefore, differ in one essential respect. Under the Regalian theory, mineral rights are not included in a grant of land by the state; under the American doctrine, mineral rights are included in a grant of land by the government.[91] Section 21 also made possible the concession (frequently styled “permit”, license” or “lease”)[92] system.[93] This was the traditional regime imposed by the colonial administrators for the exploitation of natural resources in the extractive sector (petroleum, hard minerals, timber, etc.).[94] Under the concession system, the concessionaire makes a direct equity investment for the purpose of exploiting a particular natural resource within a given area.[95] Thus, the concession amounts to complete control by the concessionaire over the country’s natural resource, for it is given exclusive and plenary rights to exploit a particular resource at the point of extraction.[96] In consideration for the right to exploit a natural resource, the concessionaire either pays rent or royalty, which is a fixed percentage of the gross proceeds.[97] Later statutory enactments by the legislative bodies set up in the Philippines adopted the contractual framework of the concession.[98] For instance, Act No. 2932,[99] approved on August 31, 1920, which provided for the exploration, location, and lease of lands containing petroleum and other mineral oils and gas in the Philippines, and Act No. 2719,[100] approved on May 14, 1917, which provided for the leasing and development of coal lands in the Philippines, both utilized the concession system.[101]

THE 1935 CONSTITUTION AND THE

NATIONALIZATION OF NATURAL RESOURCES

By the Act of United States Congress of March 24, 1934, popularly known as the Tydings-McDuffie Law, the People of the Philippine Islands were authorized to adopt a constitution.[102] On July 30, 1934, the Constitutional Convention met for the purpose of drafting a constitution, and the Constitution subsequently drafted was approved by the Convention on February 8, 1935.[103] The Constitution was submitted to the President of the United States on March 18, 1935.[104] On March 23, 1935, the President of the United States certified that the Constitution conformed substantially with the provisions of the Act of Congress approved on March 24, 1934.[105] On May 14, 1935, the Constitution was ratified by the Filipino people.[106] The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines, including mineral lands and minerals, to be property belonging to the State.[107] As adopted in a republican system, the medieval concept of jura regalia is stripped of royal overtones and ownership of the land is vested in the State.[108] Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution provided: SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of

water power, in which cases beneficial use may be the measure and the limit of the grant. The nationalization and conservation of the natural resources of the country was one of the fixed and dominating objectives of the 1935 Constitutional Convention.[109] One delegate relates: There was an overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary starting point to secure recognition of the state’s power to control their disposition, exploitation, development, or utilization. The delegates of the Constitutional Convention very well knew that the concept of State ownership of land and natural resources was introduced by the Spaniards, however, they were not certain whether it was continued and applied by the Americans. To remove all doubts, the Convention approved the provision in the Constitution affirming the Regalian doctrine. The adoption of the principle of state ownership of the natural resources and of the Regalian doctrine was considered to be a necessary starting point for the plan of nationalizing and conserving the natural resources of the country. For with the establishment of the principle of state ownership of the natural resources, it would not be hard to secure the recognition of the power of the State to control their disposition, exploitation, development or utilization.[110] The nationalization of the natural resources was intended (1) to insure their conservation for Filipino posterity; (2) to serve as an instrument of national defense, helping prevent the extension to the country of foreign control through peaceful economic penetration; and (3) to avoid making the Philippines a source of international conflicts with the consequent danger to its internal security and independence.[111] The same Section 1, Article XIII also adopted the concession system, expressly permitting the State to grant licenses, concessions, or leases for the exploitation, development, or utilization of any of the natural resources. Grants, however, were limited to Filipinos or

entities at least 60% of the capital of which is owned by Filipinos. The swell of nationalism that suffused the 1935 Constitution was radically diluted when on November 1946, the Parity Amendment, which came in the form of an “Ordinance Appended to the Constitution,” was ratified in a plebiscite.[112] The Amendment extended, from July 4, 1946 to July 3, 1974, the right to utilize and exploit our natural resources to citizens of the United States and business enterprises owned or controlled, directly or indirectly, by citizens of the United States:[113] Notwithstanding the provision of section one, Article Thirteen, and section eight, Article Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement entered into by the President of the Philippines with the President of the United States on the fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of July, nineteen hundred and seventy-four, the disposition, exploitation, development, and utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals, coals, petroleum, and other mineral oils, all forces and sources of potential energy, and other natural resources of the Philippines, and the operation of public utilities, shall, if open to any person, be open to citizens of the United States and to all forms of business enterprise owned or controlled, directly or indirectly, by citizens of the United States in the same manner as to, and under the same conditions imposed upon, citizens of the Philippines or corporations or associations owned or controlled by citizens of the Philippines. The Parity Amendment was subsequently modified by the 1954 Revised Trade Agreement, also known as the Laurel-Langley Agreement, embodied in Republic Act No. 1355.[114]

THE PETROLEUM ACT OF 1949 AND THE CONCESSION SYSTEM

In the meantime, Republic Act No. 387,[115] also known as the Petroleum Act of 1949, was approved on June 18, 1949. The Petroleum Act of 1949 employed the concession system for the exploitation of the nation’s petroleum resources. Among the kinds of concessions it sanctioned were exploration and exploitation concessions, which respectively granted to the concessionaire the exclusive right to explore for[116] or develop[117] petroleum within specified areas. Concessions may be granted only to duly qualified persons[118] who have sufficient finances, organization, resources, technical competence, and skills necessary to conduct the operations to be undertaken.[119] Nevertheless, the Government reserved the right to undertake such work itself.[120] This proceeded from the theory that all natural deposits or occurrences of petroleum or natural gas in public and/or private lands in the Philippines belong to the State.[121] Exploration and exploitation concessions did not confer upon the concessionaire ownership over the petroleum lands and petroleum deposits.[122] However, they did grant concessionaires the right to explore, develop, exploit, and utilize them for the period and under the conditions determined by the law.[123] Concessions were granted at the complete risk of the concessionaire; the Government did not guarantee the existence of petroleum or undertake, in any case, title warranty.[124] Concessionaires were required to submit information as maybe required by the Secretary of Agriculture and Natural Resources, including reports of geological and geophysical examinations, as well as production reports.[125] Exploration[126] and exploitation[127] concessionaires were also required to submit work programs. Exploitation concessionaires, in particular, were obliged to pay an annual exploitation tax,[128] the object of which is to induce the concessionaire to actually produce petroleum, and not simply to sit on the concession without developing or exploiting it.[129] These concessionaires were also bound to pay the Government royalty, which was not less than 12½% of the petroleum produced and saved, less that consumed in the operations of the

concessionaire.[130] Under Article 66, R.A. No. 387, the exploitation tax may be credited against the royalties so that if the concessionaire shall be actually producing enough oil, it would not actually be paying the exploitation tax.[131] Failure to pay the annual exploitation tax for two consecutive years,[132] or the royalty due to the Government within one year from the date it becomes due,[133] constituted grounds for the cancellation of the concession. In case of delay in the payment of the taxes or royalty imposed by the law or by the concession, a surcharge of 1% per month is exacted until the same are paid.[134] As a rule, title rights to all equipment and structures that the concessionaire placed on the land belong to the exploration or exploitation concessionaire.[135] Upon termination of such concession, the concessionaire had a right to remove the same.[136] The Secretary of Agriculture and Natural Resources was tasked with carrying out the provisions of the law, through the Director of Mines, who acted under the Secretary’s immediate supervision and control.[137] The Act granted the Secretary the authority to inspect any operation of the concessionaire and to examine all the books and accounts pertaining to operations or conditions related to payment of taxes and royalties.[138] The same law authorized the Secretary to create an Administration Unit and a Technical Board.[139] The Administration Unit was charged, inter alia, with the enforcement of the provisions of the law.[140] The Technical Board had, among other functions, the duty to check on the performance of concessionaires and to determine whether the obligations imposed by the Act and its implementing regulations were being complied with.[141] Victorio Mario A. Dimagiba, Chief Legal Officer of the Bureau of Energy Development, analyzed the benefits and drawbacks of the concession system insofar as it applied to the petroleum industry: Advantages of Concession. Whether it emphasizes income tax or royalty, the most positive aspect of the concession system is that the State’s financial involvement is virtually risk free and administration is simple and comparatively low in cost. Furthermore, if there is a

competitive allocation of the resource leading to substantial bonuses and/or greater royalty coupled with a relatively high level of taxation, revenue accruing to the State under the concession system may compare favorably with other financial arrangements. Disadvantages of Concession. There are, however, major negative aspects to this system. Because the Government’s role in the traditional concession is passive, it is at a distinct disadvantage in managing and developing policy for the nation’s petroleum resource. This is true for several reasons. First, even though most concession agreements contain covenants requiring diligence in operations and production, this establishes only an indirect and passive control of the host country in resource development. Second, and more importantly, the fact that the host country does not directly participate in resource management decisions inhibits its ability to train and employ its nationals in petroleum development. This factor could delay or prevent the country from effectively engaging in the development of its resources. Lastly, a direct role in management is usually necessary in order to obtain a knowledge of the international petroleum industry which is important to an appreciation of the host country’s resources in relation to those of other countries.[142] Other liabilities of the system have also been noted: x x x there are functional implications which give the concessionaire great economic power arising from its exclusive equity holding. This includes, first, appropriation of the returns of the undertaking, subject to a modest royalty; second, exclusive management of the project; third, control of production of the natural resource, such as volume of production, expansion, research and development; and fourth, exclusive responsibility for downstream operations, like processing, marketing, and distribution. In short, even if nominally, the state is the sovereign and owner of the natural resource being exploited, it has been shorn of all elements of control over such natural resource because of the exclusive nature of the contractual regime of the concession. The concession system, investing as it does ownership of natural resources, constitutes a consistent inconsistency with the principle embodied in our Constitution that natural resources belong to the state and shall not be alienated, not to mention the fact that the concession was the

bedrock of the colonial system in the exploitation of natural resources.[143] Eventually, the concession system failed for reasons explained by Dimagiba: Notwithstanding the good intentions of the Petroleum Act of 1949, the concession system could not have properly spurred sustained oil exploration activities in the country, since it assumed that such a capital-intensive, high risk venture could be successfully undertaken by a single individual or a small company. In effect, concessionaires’ funds were easily exhausted. Moreover, since the concession system practically closed its doors to interested foreign investors, local capital was stretched to the limits. The old system also failed to consider the highly sophisticated technology and expertise required, which would be available only to multinational companies.[144] A shift to a new regime for the development of natural resources thus seemed imminent.

PRESIDENTIAL DECREE NO. 87, THE 1973 CONSTITUTION AND THE SERVICE CONTRACT SYSTEM

The promulgation on December 31, 1972 of Presidential Decree No. 87,[145] otherwise known as THE OIL EXPLORATION AND DEVELOPMENT ACT OF 1972 signaled such a transformation. P.D. No. 87 permitted the government to explore for and produce indigenous petroleum through “service contracts.”[146] “Service contracts” is a term that assumes varying meanings to different people, and it has carried many names in different countries, like “work contracts” in Indonesia, “concession agreements” in Africa, “productionsharing agreements” in the Middle East, and “participation agreements” in Latin America.[147] A functional definition of “service contracts” in the Philippines is provided as follows: A service contract is a contractual arrangement for engaging in the exploitation and development of

petroleum, mineral, energy, land and other natural resources by which a government or its agency, or a private person granted a right or privilege by the government authorizes the other party (service contractor) to engage or participate in the exercise of such right or the enjoyment of the privilege, in that the latter provides financial or technical resources, undertakes the exploitation or production of a given resource, or directly manages the productive enterprise, operations of the exploration and exploitation of the resources or the disposition of marketing or resources.[148] In a service contract under P.D. No. 87, service and technology are furnished by the service contractor for which it shall be entitled to the stipulated service fee.[149] The contractor must be technically competent and financially capable to undertake the operations required in the contract.[150] Financing is supposed to be provided by the Government to which all petroleum produced belongs.[151] In case the Government is unable to finance petroleum exploration operations, the contractor may furnish services, technology and financing, and the proceeds of sale of the petroleum produced under the contract shall be the source of funds for payment of the service fee and the operating expenses due the contractor.[152] The contractor shall undertake, manage and execute petroleum operations, subject to the government overseeing the management of the operations.[153] The contractor provides all necessary services and technology and the requisite financing, performs the exploration work obligations, and assumes all exploration risks such that if no petroleum is produced, it will not be entitled to reimbursement.[154] Once petroleum in commercial quantity is discovered, the contractor shall operate the field on behalf of the government.[155] P.D. No. 87 prescribed minimum terms and conditions for every service contract.[156] It also granted the contractor certain privileges, including exemption from taxes and payment of tariff duties,[157] and permitted the repatriation of capital and retention of profits abroad.[158] Ostensibly, the service contract system had certain advantages over the concession regime.[159] It has been opined, though, that, in the Philippines, our concept of a service contract, at least in the petroleum industry, was

basically a concession regime with a production-sharing element.[160] On January 17, 1973, then President Ferdinand E. Marcos proclaimed the ratification of a new Constitution.[161] Article XIV on the National Economy and Patrimony contained provisions similar to the 1935 Constitution with regard to Filipino participation in the nation’s natural resources. Section 8, Article XIV thereof provides: SEC. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of agricultural, industrial or commercial, residential and resettlement lands of the public domain, natural resources shall not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, in which cases beneficial use may be the measure and the limit of the grant. While Section 9 of the same Article maintained the Filipino-only policy in the enjoyment of natural resources, it also allowed Filipinos, upon authority of the Batasang Pambansa, to enter into service contracts with any person or entity for the exploration or utilization of natural resources. SEC. 9. The disposition, exploration, development, exploitation, or utilization of any of the natural resources of the Philippines shall be limited to citizens, or to corporations or associations at least sixty per centum of which is owned by such citizens. The Batasang Pambansa, in the national interest, may allow such citizens, corporations or associations to enter into service contracts for financial, technical, management, or other forms of assistance with any person or entity for the exploration, or utilization of any of the natural resources. Existing valid and binding service contracts for financial, technical, management, or other forms of

assistance are hereby recognized as such. [Emphasis supplied.] The concept of service contracts, according to one delegate, was borrowed from the methods followed by India, Pakistan and especially Indonesia in the exploration of petroleum and mineral oils.[162] The provision allowing such contracts, according to another, was intended to “enhance the proper development of our natural resources since Filipino citizens lack the needed capital and technical know-how which are essential in the proper exploration, development and exploitation of the natural resources of the country.”[163] The original idea was to authorize the government, not private entities, to enter into service contracts with foreign entities.[164] As finally approved, however, a citizen or private entity could be allowed by the National Assembly to enter into such service contract.[165] The prior approval of the National Assembly was deemed sufficient to protect the national interest.[166] Notably, none of the laws allowing service contracts were passed by the Batasang Pambansa. Indeed, all of them were enacted by presidential decree. On March 13, 1973, shortly after the ratification of the new Constitution, the President promulgated Presidential Decree No. 151.[167] The law allowed Filipino citizens or entities which have acquired lands of the public domain or which own, hold or control such lands to enter into service contracts for financial, technical, management or other forms of assistance with any foreign persons or entity for the exploration, development, exploitation or utilization of said lands.[168] Presidential Decree No. 463,[169] also known as THE MINERAL RESOURCES DEVELOPMENT DECREE OF 1974, was enacted on May 17, 1974. Section 44 of the decree, as amended, provided that a lessee of a mining claim may enter into a service contract with a qualified domestic or foreign contractor for the exploration, development and exploitation of his claims and the processing and marketing of the product thereof. Presidential Decree No. 704[170] (THE FISHERIES DECREE OF 1975), approved on May 16, 1975, allowed Filipinos engaged in commercial fishing to enter into contracts for financial, technical or other forms of assistance with any foreign person, corporation or entity

for the production, storage, marketing and processing of fish and fishery/aquatic products.[171] Presidential Decree No. 705[172] (THE REVISED FORESTRY CODE OF THE PHILIPPINES), approved on May 19, 1975, allowed “forest products licensees, lessees, or permitees to enter into service contracts for financial, technical, management, or other forms of assistance . . . with any foreign person or entity for the exploration, development, exploitation or utilization of the forest resources.”[173] Yet another law allowing service contracts, this time for geothermal resources, was Presidential Decree No. 1442,[174] which was signed into law on June 11, 1978. Section 1 thereof authorized the Government to enter into service contracts for the exploration, exploitation and development of geothermal resources with a foreign contractor who must be technically and financially capable of undertaking the operations required in the service contract. Thus, virtually the entire range of the country’s natural resources –from petroleum and minerals to geothermal energy, from public lands and forest resources to fishery products – was well covered by apparent legal authority to engage in the direct participation or involvement of foreign persons or corporations (otherwise disqualified) in the exploration and utilization of natural resources through service contracts.[175]

THE 1987 CONSTITUTION AND TECHNICAL OR FINANCIAL ASSISTANCE AGREEMENTS

After the February 1986 Edsa Revolution, Corazon C. Aquino took the reins of power under a revolutionary government. On March 25, 1986, President Aquino issued Proclamation No. 3,[176]promulgating the Provisional Constitution, more popularly referred to as the Freedom Constitution. By authority of the same Proclamation, the President created a Constitutional Commission (CONCOM) to draft a new constitution, which took effect on the date of its ratification on February 2, 1987.[177] The 1987 Constitution retained the Regalian doctrine. The first sentence of Section 2, Article XII

states: “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State.” Like the 1935 and 1973 Constitutions before it, the 1987 Constitution, in the second sentence of the same provision, prohibits the alienation of natural resources, except agricultural lands. The third sentence of the same paragraph is new: “The exploration, development and utilization of natural resources shall be under the full control and supervision of the State.” The constitutional policy of the State’s “full control and supervision” over natural resources proceeds from the concept of jura regalia, as well as the recognition of the importance of the country’s natural resources, not only for national economic development, but also for its security and national defense.[178] Under this provision, the State assumes “a more dynamic role” in the exploration, development and utilization of natural resources.[179] Conspicuously absent in Section 2 is the provision in the 1935 and 1973 Constitutions authorizing the State to grant licenses, concessions, or leases for the exploration, exploitation, development, or utilization of natural resources. By such omission, the utilization of inalienable lands of public domain through “license, concession or lease” is no longer allowed under the 1987 Constitution.[180] Having omitted the provision on the concession system, Section 2 proceeded to introduce “unfamiliar language”:[181] The State may directly undertake such activities or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Consonant with the State’s “full supervision and control” over natural resources, Section 2 offers the State two “options.”[182] One, the State may directly undertake these activities itself; or two, it may enter into coproduction, joint venture, or production-sharing agreements with Filipino citizens, or entities at least 60% of whose capital is owned by such citizens.

A third option is found in the third paragraph of the same section: The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons. While the second and third options are limited only to Filipino citizens or, in the case of the former, to corporations or associations at least 60% of the capital of which is owned by Filipinos, a fourth allows the participation of foreign-owned corporations. The fourth and fifth paragraphs of Section 2 provide: The President may enter into agreements with foreignowned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. Although Section 2 sanctions the participation of foreign-owned corporations in the exploration, development, and utilization of natural resources, it imposes certain limitations or conditions to agreements with such corporations. First, the parties to FTAAs. Only the President, in behalf of the State, may enter into these agreements, and only with corporations. By contrast, under the 1973 Constitution, a Filipino citizen, corporation or association may enter into a service contract with a “foreign person or entity.” Second, the size of the activities: only largescale exploration, development, and utilization is allowed.

The term “large-scale usually refers to very capitalintensive activities.”[183] Third, the natural resources subject of the activities is restricted to minerals, petroleum and other mineral oils, the intent being to limit service contracts to those areas where Filipino capital may not be sufficient. [184] Fourth, consistency with the provisions of statute. The agreements must be in accordance with the terms and conditions provided by law. Fifth, Section 2 prescribes certain standards for entering into such agreements. The agreements must be based on real contributions to economic growth and general welfare of the country. Sixth, the agreements must contain rudimentary stipulations for the promotion of the development and use of local scientific and technical resources. Seventh, the notification requirement. The President shall notify Congress of every financial or technical assistance agreement entered into within thirty days from its execution. Finally, the scope of the agreements. While the 1973 Constitution referred to “service contracts for financial, technical, management, or other forms of assistance” the 1987 Constitution provides for “agreements. . . involving either financial or technical assistance.” It bears noting that the phrases “service contracts” and “management or other forms of assistance” in the earlier constitution have been omitted. By virtue of her legislative powers under the Provisional Constitution,[185] President Aquino, on July 10, 1987, signed into law E.O. No. 211 prescribing the interim procedures in the processing and approval of applications for the exploration, development and utilization of minerals. The omission in the 1987 Constitution of the term “service contracts” notwithstanding, the said E.O. still referred to them in Section 2 thereof: SEC. 2. Applications for the exploration, development and utilization of mineral resources, including renewal applications and applications for approval of operating agreements and mining service contracts, shall be accepted and processed and may be approved x x x. [Emphasis supplied.]

The same law provided in its Section 3 that the “processing, evaluation and approval of all mining applications . . . operating agreements and service contracts . . . shall be governed by Presidential Decree No. 463, as amended, other existing mining laws, and their implementing rules and regulations. . . .” As earlier stated, on the 25th also of July 1987, the President issued E.O. No. 279 by authority of which the subject WMCP FTAA was executed on March 30, 1995. On March 3, 1995, President Ramos signed into law R.A. No. 7942. Section 15 thereof declares that the Act “shall govern the exploration, development, utilization, and processing of all mineral resources.” Such declaration notwithstanding, R.A. No. 7942 does not actually cover all the modes through which the State may undertake the exploration, development, and utilization of natural resources. The State, being the owner of the natural resources, is accorded the primary power and responsibility in the exploration, development and utilization thereof. As such, it may undertake these activities through four modes: The State may directly undertake such activities. (2) The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or qualified corporations. (3) Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens. (4) For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving technical or financial assistance.[186] Except to charge the Mines and Geosciences Bureau of the DENR with performing researches and surveys,[187] and a passing mention of government-owned or controlled corporations,[188]R.A. No. 7942 does not specify how the State should go about the first mode. The third mode, on the other hand, is governed by Republic Act No. 7076[189] (the People’s Small-Scale Mining Act of 1991) and other pertinent laws.[190] R.A. No. 7942 primarily concerns itself with the second and fourth modes.

Mineral production sharing, co-production and joint venture agreements are collectively classified by R.A. No. 7942 as “mineral agreements.”[191] The Government participates the least in a mineral production sharing agreement (MPSA). In an MPSA, the Government grants the contractor[192] the exclusive right to conduct mining operations within a contract area[193] and shares in the gross output.[194] The MPSA contractor provides the financing, technology, management and personnel necessary for the agreement’s implementation.[195] The total government share in an MPSA is the excise tax on mineral products under Republic Act No. 7729,[196] amending Section 151(a) of the National Internal Revenue Code, as amended.[197] In a co-production agreement (CA),[198] the Government provides inputs to the mining operations other than the mineral resource,[199] while in a joint venture agreement (JVA), where the Government enjoys the greatest participation, the Government and the JVA contractor organize a company with both parties having equity shares.[200] Aside from earnings in equity, the Government in a JVA is also entitled to a share in the gross output.[201] The Government may enter into a CA[202] or JVA[203] with one or more contractors. The Government’s share in a CA or JVA is set out in Section 81 of the law: The share of the Government in co-production and joint venture agreements shall be negotiated by the Government and the contractor taking into consideration the: (a) capital investment of the project, (b) the risks involved, (c) contribution of the project to the economy, and (d) other factors that will provide for a fair and equitable sharing between the Government and the contractor. The Government shall also be entitled to compensations for its other contributions which shall be agreed upon by the parties, and shall consist, among other things, the contractor’s income tax, excise tax, special allowance, withholding tax due from the contractor’s foreign stockholders arising from dividend or interest payments to the said foreign stockholders, in case of a foreign national and all such other taxes, duties and fees as provided for under existing laws. All mineral agreements grant the respective contractors the exclusive right to conduct mining operations and to extract all mineral resources found in the

contract area.[204] A “qualified person” may enter into any of the mineral agreements with the Government.[205] A “qualified person” is

fully recovered its pre-operating expenses, exploration, and development expenditures, inclusive.[213] III

any citizen of the Philippines with capacity to contract, or a corporation, partnership, association, or cooperative organized or authorized for the purpose of engaging in mining, with technical and financial capability to undertake mineral resources development and duly registered in accordance with law at least sixty per centum (60%) of the capital of which is owned by citizens of the Philippines x x x.[206] The fourth mode involves “financial or technical assistance agreements.” An FTAA is defined as “a contract involving financial or technical assistance for large-scale exploration, development, and utilization of natural resources.”[207] Any qualified person with technical and financial capability to undertake large-scale exploration, development, and utilization of natural resources in the Philippines may enter into such agreement directly with the Government through the DENR.[208] For the purpose of granting an FTAA, a legally organized foreign-owned corporation (any corporation, partnership, association, or cooperative duly registered in accordance with law in which less than 50% of the capital is owned by Filipino citizens)[209] is deemed a “qualified person.”[210] Other than the difference in contractors’ qualifications, the principal distinction between mineral agreements and FTAAs is the maximum contract area to which a qualified person may hold or be granted.[211] “Large-scale” under R.A. No. 7942 is determined by the size of the contract area, as opposed to the amount invested (US $50,000,000.00), which was the standard under E.O. 279. Like a CA or a JVA, an FTAA is subject to negotiation.[212] The Government’s contributions, in the form of taxes, in an FTAA is identical to its contributions in the two mineral agreements, save that in an FTAA: The collection of Government share in financial or technical assistance agreement shall commence after the financial or technical assistance agreement contractor has

Having examined the history of the constitutional provision and statutes enacted pursuant thereto, a consideration of the substantive issues presented by the petition is now in order.

THE EFFECTIVITY OF EXECUTIVE ORDER NO. 279

Petitioners argue that E.O. No. 279, the law in force when the WMC FTAA was executed, did not come into effect. E.O. No. 279 was signed into law by then President Aquino on July 25, 1987, two days before the opening of Congress on July 27, 1987.[214] Section 8 of the E.O. states that the same “shall take effect immediately.” This provision, according to petitioners, runs counter to Section 1 of E.O. No. 200,[215] which provides: SECTION 1. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.[216] [Emphasis supplied.] On that premise, petitioners contend that E.O. No. 279 could have only taken effect fifteen days after its publication at which time Congress had already convened and the President’s power to legislate had ceased. Respondents, on the other hand, counter that the validity of E.O. No. 279 was settled in Miners Association of the Philippines v. Factoran, supra. This is of course incorrect for the issue inMiners Association was not the validity of E.O. No. 279 but that of DAO Nos. 57 and 82 which were issued pursuant thereto. Nevertheless, petitioners’ contentions have no merit.

It bears noting that there is nothing in E.O. No. 200 that prevents a law from taking effect on a date other than – even before – the 15-day period after its publication. Where a law provides for its own date of effectivity, such date prevails over that prescribed by E.O. No. 200. Indeed, this is the very essence of the phrase “unless it is otherwise provided” in Section 1 thereof. Section 1, E.O. No. 200, therefore, applies only when a statute does not provide for its own date of effectivity. What is mandatory under E.O. No. 200, and what due process requires, as this Court held in Tañada v. Tuvera,[217] is the publication of the law for without such notice and publication, there would be no basis for the application of the maxim “ignorantia legis n[eminem] excusat.” It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. While the effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for its invalidation since the Constitution, being “the fundamental, paramount and supreme law of the nation,” is deemed written in the law.[218] Hence, the due process clause,[219] which, so Tañada held, mandates the publication of statutes, is read into Section 8 of E.O. No. 279. Additionally, Section 1 of E.O. No. 200 which provides for publication “either in the Official Gazette or in a newspaper of general circulation in the Philippines,” finds suppletory application. It is significant to note that E.O. No. 279 was actually published in the Official Gazette[220] on August 3, 1987. From a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Tañada v. Tuvera, this Court holds that E.O. No. 279 became effective immediately upon its publication in the Official Gazette on August 3, 1987. That such effectivity took place after the convening of the first Congress is irrelevant. At the time President Aquino issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers under the Provisional Constitution.[221] Article XVIII (Transitory Provisions) of the 1987 Constitution explicitly states:

SEC. 6. The incumbent President shall continue to exercise legislative powers until the first Congress is convened. The convening of the first Congress merely precluded the exercise of legislative powers by President Aquino; it did not prevent the effectivity of laws she had previously enacted. There can be no question, therefore, that E.O. No. 279 is an effective, and a validly enacted, statute.

THE CONSTITUTIONALITY OF THE WMCP FTAA

Petitioners submit that, in accordance with the text of Section 2, Article XII of the Constitution, FTAAs should be limited to “technical or financial assistance” only. They observe, however, that, contrary to the language of the Constitution, the WMCP FTAA allows WMCP, a fully foreign-owned mining corporation, to extend more than mere financial or technical assistance to the State, for it permits WMCP to manage and operate every aspect of the mining activity. [222] Petitioners’ submission is well-taken. It is a cardinal rule in the interpretation of constitutions that the instrument must be so construed as to give effect to the intention of the people who adopted it.[223] This intention is to be sought in the constitution itself, and the apparent meaning of the words is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction.[224] What the Constitution says according to the text of the provision, therefore, compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say.[225] Accordingly, following the literal text of the Constitution, assistance accorded by foreignowned corporations in the large-scale exploration, development, and utilization of petroleum, minerals and mineral oils should be limited to “technical” or “financial” assistance only. WMCP nevertheless submits that the word “technical” in the fourth paragraph of Section 2 of E.O. No.

279 encompasses a “broad number of possible services,” perhaps, “scientific and/or technological in basis.”[226] It thus posits that it may also well include “the area of management or operations . . . so long as such assistance requires specialized knowledge or skills, and are related to the exploration, development and utilization of mineral resources.”[227] This Court is not persuaded. As priorly pointed out, the phrase “management or other forms of assistance” in the 1973 Constitution was deleted in the 1987 Constitution, which allows only “technical or financial assistance.” Casus omisus pro omisso habendus est. A person, object or thing omitted from an enumeration must be held to have been omitted intentionally.[228] As will be shown later, the management or operation of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the 1987 Constitution sought to eradicate. Respondents insist that “agreements involving technical or financial assistance” is just another term for service contracts. They contend that the proceedings of the CONCOM indicate “that although the terminology ‘service contract’ was avoided [by the Constitution], the concept it represented was not.” They add that “[t]he concept is embodied in the phrase ‘agreements involving financial or technical assistance.’”[229] And point out how members of the CONCOM referred to these agreements as “service contracts.” For instance: SR. TAN. Am I correct in thinking that the only difference between these future service contracts and the past service contracts under Mr. Marcos is the general law to be enacted by the legislature and the notification of Congress by the President? That is the only difference, is it not? MR. VILLEGAS. That is right. SR. TAN. So those are the safeguards[?] MR. VILLEGAS. Yes. There was no law at all governing service contracts before.

SR. TAN. Thank you, Madam President.[230] [Emphasis supplied.] WMCP also cites the following statements of Commissioners Gascon, Garcia, Nolledo and Tadeo who alluded to service contracts as they explained their respective votes in the approval of the draft Article: MR. GASCON. Mr. Presiding Officer, I vote no primarily because of two reasons: One, the provision on service contracts. I felt that if we would constitutionalize any provision on service contracts, this should always be with the concurrence of Congress and not guided only by a general law to be promulgated by Congress. x x x.[231] [Emphasis supplied.] x x x. MR. GARCIA. Thank you. I vote no. x x x. Service contracts are given constitutional legitimization in Section 3, even when they have been proven to be inimical to the interests of the nation, providing as they do the legal loophole for the exploitation of our natural resources for the benefit of foreign interests. They constitute a serious negation of Filipino control on the use and disposition of the nation’s natural resources, especially with regard to those which are nonrenewable.[232] [Emphasis supplied.] xxx MR. NOLLEDO. While there are objectionable provisions in the Article on National Economy and Patrimony, going over said provisions meticulously, setting aside prejudice and personalities will reveal that the article contains a balanced set of provisions. I hope the forthcoming Congress will implement such provisions taking into account that Filipinos should have real control over our economy and patrimony, and if foreign equity is permitted, the same must be subordinated to the imperative demands of the national interest.

x x x. It is also my understanding that service contracts involving foreign corporations or entities are resorted to only when no Filipino enterprise or Filipino-controlled enterprise could possibly undertake the exploration or exploitation of our natural resources and that compensation under such contracts cannot and should not equal what should pertain to ownership of capital. In other words, the service contract should not be an instrument to circumvent the basic provision, that the exploration and exploitation of natural resources should be truly for the benefit of Filipinos. Thank you, and I vote yes.[233] [Emphasis supplied.] x x x. MR. TADEO. Nais ko lamang ipaliwanag ang aking boto. Matapos suriin ang kalagayan ng Pilipinas, ang saligang suliranin, pangunahin ang salitang “imperyalismo.” Ang ibig sabihin nito ay ang sistema ng lipunang pinaghaharian ng iilang monopolyong kapitalista at ang salitang “imperyalismo” ay buhay na buhay sa National Economy and Patrimony na nating ginawa. Sa pamamagitan ng salitang “based on,” naroroon na ang free trade sapagkat tayo ay mananatiling tagapagluwas ng hilaw na sangkap at tagaangkat ng yaring produkto. Pangalawa, naroroon pa rin ang parity rights, ang service contract, ang 60-40 equity sa natural resources. Habang naghihirap ang sambayanang Pilipino, ginagalugad naman ng mga dayuhan ang ating likas na yaman. Kailan man ang Article on National Economy and Patrimony ay hindi nagpaalis sa pagkaalipin ng ating ekonomiya sa kamay ng mga dayuhan. Ang solusyon sa suliranin ng bansa ay dalawa lamang: ang pagpapatupad ng tunay na reporma sa lupa at ang national industrialization. Ito ang tinatawag naming pagsikat ng araw sa Silangan. Ngunit ang mga landlords and big businessmen at ang mga komprador ay nagsasabi na ang free trade na ito, ang kahulugan para sa amin, ay ipinipilit sa ating sambayanan na ang araw ay sisikat sa Kanluran. Kailan man hindi puwedeng sumikat ang araw sa Kanluran. I vote no.[234] [Emphasis supplied.]

This Court is likewise not persuaded. As earlier noted, the phrase “service contracts” has been deleted in the 1987 Constitution’s Article on National Economy and Patrimony. If the CONCOM intended to retain the concept of service contracts under the 1973 Constitution, it could have simply adopted the old terminology (“service contracts”) instead of employing new and unfamiliar terms (“agreements . . . involving either technical or financial assistance”). Such a difference between the language of a provision in a revised constitution and that of a similar provision in the preceding constitution is viewed as indicative of a difference in purpose.[235] If, as respondents suggest, the concept of “technical or financial assistance” agreements is identical to that of “service contracts,” the CONCOM would not have bothered to fit the same dog with a new collar. To uphold respondents’ theory would reduce the first to a mere euphemism for the second and render the change in phraseology meaningless. An examination of the reason behind the change confirms that technical or financial assistance agreements are not synonymous to service contracts. [T]he Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.[236] As the following question of Commissioner Quesada and Commissioner Villegas’ answer shows the drafters intended to do away with service contracts which were used to circumvent the capitalization (60%-40%) requirement:

safeguard against the possible control of foreign interests if the Filipinos go into coproduction with them? MR. VILLEGAS. Yes. In fact, the deletion of the phrase “service contracts” was our first attempt to avoid some of the abuses in the past regime in the use of service contracts to go around the 60-40 arrangement. The safeguard that has been introduced – and this, of course can be refined – is found in Section 3, lines 25 to 30, where Congress will have to concur with the President on any agreement entered into between a foreign-owned corporation and the government involving technical or financial assistance for large-scale exploration, development and utilization of natural resources.[237] [Emphasis supplied.] In a subsequent discussion, Commissioner Villegas allayed the fears of Commissioner Quesada regarding the participation of foreign interests in Philippine natural resources, which was supposed to be restricted to Filipinos. MS. QUESADA. Another point of clarification is the phrase “and utilization of natural resources shall be under the full control and supervision of the State.” In the 1973 Constitution, this was limited to citizens of the Philippines; but it was removed and substituted by “shall be under the full control and supervision of the State.” Was the concept changed so that these particular resources would be limited to citizens of the Philippines? Or would these resources only be under the full control and supervision of the State; meaning, noncitizens would have access to these natural resources? Is that the understanding? MR. VILLEGAS. No, Mr. Vice-President, if the Commissioner reads the next sentence, it states: Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, productionsharing agreements with Filipino citizens.

MS. QUESADA. The 1973 Constitution used the words “service contracts.” In this particular Section 3, is there a

So we are still limiting it only to Filipino citizens. x x x.

MS. QUESADA. Going back to Section 3, the section suggests that:

MR. DAVIDE. proposal?

May I be allowed to explain the

The exploration, development, and utilization of natural resources… may be directly undertaken by the State, or it may enter into co-production, joint venture or productionsharing agreement with . . . corporations or associations at least sixty per cent of whose voting stock or controlling interest is owned by such citizens.

MR. MAAMBONG. Madam President.

Subject to the three-minute rule,

MR. DAVIDE.

It will not take three minutes.

Lines 25 to 30, on the other hand, suggest that in the large-scale exploration, development and utilization of natural resources, the President with the concurrence of Congress may enter into agreements with foreign-owned corporations even for technical or financial assistance. I wonder if this part of Section 3 contradicts the second part. I am raising this point for fear that foreign investors will use their enormous capital resources to facilitate the actual exploitation or exploration, development and effective disposition of our natural resources to the detriment of Filipino investors. I am not saying that we should not consider borrowing money from foreign sources. What I refer to is that foreign interest should be allowed to participate only to the extent that they lend us money and give us technical assistance with the appropriate government permit. In this way, we can insure the enjoyment of our natural resources by our own people. MR. VILLEGAS. Actually, the second provision about the President does not permit foreign investors to participate. It is only technical or financial assistance – they do not own anything – but on conditions that have to be determined by law with the concurrence of Congress. So, it is very restrictive. If the Commissioner will remember, this removes the possibility for service contracts which we said yesterday were avenues used in the previous regime to go around the 60-40 requirement.[238][Emphasis supplied.] The present Chief Justice, then a member of the CONCOM, also referred to this limitation in scope in proposing an amendment to the 60-40 requirement:

The Commission had just approved the Preamble. In the Preamble we clearly stated that the Filipino people are sovereign and that one of the objectives for the creation or establishment of a government is to conserve and develop the national patrimony. The implication is that the national patrimony or our natural resources are exclusively reserved for the Filipino people. No alien must be allowed to enjoy, exploit and develop our natural resources. As a matter of fact, that principle proceeds from the fact that our natural resources are gifts from God to the Filipino people and it would be a breach of that special blessing from God if we will allow aliens to exploit our natural resources. I voted in favor of the Jamir proposal because it is not really exploitation that we granted to the alien corporations but only for them to render financial or technical assistance. It is not for them to enjoy our natural resources. Madam President, our natural resources are depleting; our population is increasing by leaps and bounds. Fifty years from now, if we will allow these aliens to exploit our natural resources, there will be no more natural resources for the next generations of Filipinos. It may last long if we will begin now. Since 1935 the aliens have been allowed to enjoy to a certain extent the exploitation of our natural resources, and we became victims of foreign dominance and control. The aliens are interested in coming to the Philippines because they would like to enjoy the bounty of nature exclusively intended for Filipinos by God. And so I appeal to all, for the sake of the future generations, that if we have to pray in the Preamble “to preserve and develop the national patrimony for the sovereign Filipino people and for the generations to come,” we must at this time decide once and for all that our natural resources must be reserved only to Filipino citizens.

Thank you.[239] [Emphasis supplied.] The opinion of another member of the CONCOM is persuasive[240] and leaves no doubt as to the intention of the framers to eliminate service contracts altogether. He writes: Paragraph 4 of Section 2 specifies large-scale, capitalintensive, highly technological undertakings for which the President may enter into contracts with foreign-owned corporations, and enunciates strict conditions that should govern such contracts. x x x. This provision balances the need for foreign capital and technology with the need to maintain the national sovereignty. It recognizes the fact that as long as Filipinos can formulate their own terms in their own territory, there is no danger of relinquishing sovereignty to foreign interests. Are service contracts allowed under the new Constitution? No. Under the new Constitution, foreign investors (fully alien-owned) can NOT participate in Filipino enterprises except to provide: (1) Technical Assistance for highly technical enterprises; and (2) Financial Assistance for large-scale enterprises. The intent of this provision, as well as other provisions on foreign investments, is to prevent the practice (prevalent in the Marcos government) of skirting the 60/40 equation using the cover of service contracts.[241] [Emphasis supplied.] Furthermore, it appears that Proposed Resolution No. 496,[242] which was the draft Article on National Economy and Patrimony, adopted the concept of “agreements . . . involving either technical or financial assistance” contained in the “Draft of the 1986 U.P. Law Constitution Project” (U.P. Law draft) which was taken into consideration during the deliberation of the CONCOM.[243] The former, as well as Article XII, as adopted, employed the same terminology, as the comparative table below shows: PROPOSED RESOLUTION NO. 496 OF THE

ARTICLE XII OF THE 1987 CONSTITUTION

DRAFT OF THE UP LAW CONSTITUTION PROJECT SEC. 1. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, flora and fauna and other natural resources of the Philippines are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the state, or it may enter into co-production, joint venture, production sharing agreements with Filipino citizens or corporations

CONSTITUTION AL COMMISSION

SEC. 3. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. Such activities may be directly undertaken by the State, or it may enter into co-production, joint venture, productionsharing agreements with Filipino citizens or corporations or associations at

SEC. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at

or associations sixty per cent of whose voting stock or controlling interest is owned by such citizens for a period of not more than twenty-five years, renewable for not more than twenty-five years and under such terms and conditions as may be provided by law. In case as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

least sixty per cent of whose voting stock or controlling interest is owned by such citizens. Such agreements shall be for a period of twenty-five years, renewable for not more than twenty-five years, and under such term and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries or industrial uses other than the development for water power, beneficial use may be the measure and limit of the grant.

least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In case of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The National Assembly may by law allow small scale utilization of natural resources by Filipino citizens.

The Congress may by law allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming in rivers, lakes, bays, and lagoons.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers, lakes, bays, and lagoons.

The National Assembly, may, by two-thirds vote of all its members by special law provide the terms and conditions under which a foreign-owned corporation may enter into agreements with the government involving either technical or financial assistance for large-scale exploration, development, or utilization of natural resources. [Emp hasis supplied.]

The President with the concurrence of Congress, by special law, shall provide the terms and conditions under which a foreign-owned corporation may enter into agreements with the government involving either technical or financial assistance for large-scale exploration, development, and utilization of natural resources. [Emp hasis supplied.]

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the

development and use of local scientific and technical resources. [Emp hasis supplied.] The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.

The insights of the proponents of the U.P. Law draft are, therefore, instructive in interpreting the phrase “technical or financial assistance.” In his position paper entitled Service Contracts: Old Wine in New Bottles?, Professor Pacifico A. Agabin, who was a member of the working group that prepared the U.P. Law draft, criticized service contracts for they “lodge exclusive management and control of the enterprise to the service contractor, which is reminiscent of the old concession regime. Thus, notwithstanding the provision of the Constitution that natural resources belong to the State, and that these shall not be alienated, the service contract system renders nugatory the constitutional provisions cited.”[244]He elaborates: Looking at the Philippine model, we can discern the following vestiges of the concession regime, thus: 1. Bidding of a selected area, or leasing the choice of the area to the interested party and then negotiating the terms and conditions of the contract; (Sec. 5, P.D. 87) 2. Management of the enterprise vested on the contractor, including operation of the field if petroleum is discovered; (Sec. 8, P.D. 87)

3. Control of production and other matters such as expansion and development; (Sec. 8) 4. Responsibility for downstream operations – marketing, distribution, and processing may be with the contractor (Sec. 8); 5. Ownership of equipment, machinery, fixed assets, and other properties remain with contractor (Sec. 12, P.D. 87); 6. Repatriation of capital and retention of profits abroad guaranteed to the contractor (Sec. 13, P.D. 87); and 7. While title to the petroleum discovered may nominally be in the name of the government, the contractor has almost unfettered control over its disposition and sale, and even the domestic requirements of the country is relegated to a pro rata basis (Sec. 8). In short, our version of the service contract is just a rehash of the old concession regime x x x. Some people have pulled an old rabbit out of a magician’s hat, and foisted it upon us as a new and different animal. The service contract as we know it here is antithetical to the principle of sovereignty over our natural resources restated in the same article of the [1973] Constitution containing the provision for service contracts. If the service contractor happens to be a foreign corporation, the contract would also run counter to the constitutional provision on nationalization or Filipinization, of the exploitation of our natural resources.[245] [Emphasis supplied. Underscoring in the original.] Professor Merlin M. Magallona, also a member of the working group, was harsher in his reproach of the system: x x x the nationalistic phraseology of the 1935 [Constitution] was retained by the [1973] Charter, but the essence of nationalism was reduced to hollow rhetoric. The 1973 Charter still provided that the exploitation or development of the country’s natural

resources be limited to Filipino citizens or corporations owned or controlled by them. However, the martial-law Constitution allowed them, once these resources are in their name, to enter into service contracts with foreign investors for financial, technical, management, or other forms of assistance. Since foreign investors have the capital resources, the actual exploitation and development, as well as the effective disposition, of the country’s natural resources, would be under their direction, and control, relegating the Filipino investors to the role of second-rate partners in joint ventures. Through the instrumentality of the service contract, the 1973 Constitution had legitimized at the highest level of state policy that which was prohibited under the 1973 Constitution, namely: the exploitation of the country’s natural resources by foreign nationals. The drastic impact of [this] constitutional change becomes more pronounced when it is considered that the active party to any service contract may be a corporation wholly owned by foreign interests. In such a case, the citizenship requirement is completely set aside, permitting foreign corporations to obtain actual possession, control, and [enjoyment] of the country’s natural resources.[246] [Emphasis supplied.] Accordingly, Professor Agabin recommends that: Recognizing the service contract for what it is, we have to expunge it from the Constitution and reaffirm ownership over our natural resources. That is the only way we can exercise effective control over our natural resources. This should not mean complete isolation of the country’s natural resources from foreign investment. Other contract forms which are less derogatory to our sovereignty and control over natural resources – like technical assistance agreements, financial assistance [agreements], coproduction agreements, joint ventures, production-sharing – could still be utilized and adopted without violating constitutional provisions. In other words, we can adopt contract forms which recognize and assert our sovereignty and ownership over natural resources, and where the foreign entity is just a pure contractor instead of the beneficial owner of our economic resources.[247] [Emphasis supplied.]

Still another member of the working group, Professor Eduardo Labitag, proposed that: 2. Service contracts as practiced under the 1973 Constitution should be discouraged, instead the government may be allowed, subject to authorization by special law passed by an extraordinary majority to enter into either technical or financial assistance. This is justified by the fact that as presently worded in the 1973 Constitution, a service contract gives full control over the contract area to the service contractor, for him to work, manage and dispose of the proceeds or production. It was a subterfuge to get around the nationality requirement of the constitution.[248] [Emphasis supplied.] In the annotations on the proposed Article on National Economy and Patrimony, the U.P. Law draft summarized the rationale therefor, thus: 5. The last paragraph is a modification of the service contract provision found in Section 9, Article XIV of the 1973 Constitution as amended. This 1973 provision shattered the framework of nationalism in our fundamental law (see Magallona, “Nationalism and its Subversion in the Constitution”). Through the service contract, the 1973 Constitution had legitimized that which was prohibited under the 1935 constitution—the exploitation of the country’s natural resources by foreign nationals. Through the service contract, acts prohibited by the Anti-Dummy Law were recognized as legitimate arrangements. Service contracts lodge exclusive management and control of the enterprise to the service contractor, not unlike the old concession regime where the concessionaire had complete control over the country’s natural resources, having been given exclusive and plenary rights to exploit a particular resource and, in effect, having been assured of ownership of that resource at the point of extraction (see Agabin, “Service Contracts: Old Wine in New Bottles”). Service contracts, hence, are antithetical to the principle of sovereignty over our natural resources, as well as the constitutional provision on nationalization or Filipinization of the exploitation of our natural resources. Under the proposed provision, only technical assistance or financial assistance agreements may be entered into, and only for large-scale activities. These are contract forms

which recognize and assert our sovereignty and ownership over natural resources since the foreign entity is just a pure contractor and not a beneficial owner of our economic resources. The proposal recognizes the need for capital and technology to develop our natural resources without sacrificing our sovereignty and control over such resources by the safeguard of a special law which requires two-thirds vote of all the members of the Legislature. This will ensure that such agreements will be debated upon exhaustively and thoroughly in the National Assembly to avert prejudice to the nation.[249] [Emphasis supplied.] The U.P. Law draft proponents viewed service contracts under the 1973 Constitution as grants of beneficial ownership of the country’s natural resources to foreign owned corporations. While, in theory, the State owns these natural resources – and Filipino citizens, their beneficiaries – service contracts actually vested foreigners with the right to dispose, explore for, develop, exploit, and utilize the same. Foreigners, not Filipinos, became the beneficiaries of Philippine natural resources. This arrangement is clearly incompatible with the constitutional ideal of nationalization of natural resources, with the Regalian doctrine, and on a broader perspective, with Philippine sovereignty. The proponents nevertheless acknowledged the need for capital and technical know-how in the large-scale exploitation, development and utilization of natural resources – the second paragraph of the proposed draft itself being an admission of such scarcity. Hence, they recommended a compromise to reconcile the nationalistic provisions dating back to the 1935 Constitution, which reserved all natural resources exclusively to Filipinos, and the more liberal 1973 Constitution, which allowed foreigners to participate in these resources through service contracts. Such a compromise called for the adoption of a new system in the exploration, development, and utilization of natural resources in the form of technical agreements or financial agreements which, necessarily, are distinct concepts from service contracts. The replacement of “service contracts” with “agreements… involving either technical or financial assistance,” as well as the deletion of the phrase “management or other forms of assistance,” assumes greater significance when note is taken that the U.P. Law draft proposed other equally crucial changes that were

obviously heeded by the CONCOM. These include the abrogation of the concession system and the adoption of new “options” for the State in the exploration, development, and utilization of natural resources. The proponents deemed these changes to be more consistent with the State’s ownership of, and its “full control and supervision” (a phrase also employed by the framers) over, such resources. The Project explained: 3. In line with the State ownership of natural resources, the State should take a more active role in the exploration, development, and utilization of natural resources, than the present practice of granting licenses, concessions, or leases – hence the provision that said activities shall be under the full control and supervision of the State. There are three major schemes by which the State could undertake these activities: first, directly by itself; second, by virtue of co-production, joint venture, production sharing agreements with Filipino citizens or corporations or associations sixty per cent (60%) of the voting stock or controlling interests of which are owned by such citizens; or third, with a foreign-owned corporation, in cases of large-scale exploration, development, or utilization of natural resources through agreements involving either technical or financial assistance only. x x x. At present, under the licensing concession or lease schemes, the government benefits from such benefits only through fees, charges, ad valorem taxes and income taxes of the exploiters of our natural resources. Such benefits are very minimal compared with the enormous profits reaped by theses licensees, grantees, concessionaires. Moreover, some of them disregard the conservation of natural resources and do not protect the environment from degradation. The proposed role of the State will enable it to a greater share in the profits – it can also actively husband its natural resources and engage in developmental programs that will be beneficial to them. 4. Aside from the three major schemes for the exploration, development, and utilization of our natural resources, the State may, by law, allow Filipino citizens to explore, develop, utilize natural resources in smallscale. This is in recognition of the plight of marginal fishermen, forest dwellers, gold panners, and others similarly situated who exploit our natural resources for their daily sustenance and survival.[250]

Professor Agabin, in particular, after taking pains to illustrate the similarities between the two systems, concluded that the service contract regime was but a “rehash” of the concession system. “Old wine in new bottles,” as he put it. The rejection of the service contract regime, therefore, is in consonance with the abolition of the concession system. In light of the deliberations of the CONCOM, the text of the Constitution, and the adoption of other proposed changes, there is no doubt that the framers considered and shared the intent of the U.P. Law proponents in employing the phrase “agreements . . . involving either technical or financial assistance.” While certain commissioners may have mentioned the term “service contracts” during the CONCOM deliberations, they may not have been necessarily referring to the concept of service contracts under the 1973 Constitution. As noted earlier, “service contracts” is a term that assumes different meanings to different people.[251] The commissioners may have been using the term loosely, and not in its technical and legal sense, to refer, in general, to agreements concerning natural resources entered into by the Government with foreign corporations. These loose statements do not necessarily translate to the adoption of the 1973 Constitution provision allowing service contracts. It is true that, as shown in the earlier quoted portions of the proceedings in CONCOM, in response to Sr. Tan’s question, Commissioner Villegas commented that, other than congressional notification, the only difference between “future” and “past” “service contracts” is the requirement of a general law as there were no laws previously authorizing the same.[252] However, such remark is far outweighed by his more categorical statement in his exchange with Commissioner Quesada that the draft article “does not permit foreign investors to participate” in the nation’s natural resources – which was exactly what service contracts did – except to provide “technical or financial assistance.”[253] In the case of the other commissioners, Commissioner Nolledo himself clarified in his work that the present charter prohibits service contracts.[254] Commissioner Gascon was not totally averse to foreign participation, but favored stricter restrictions in the form of majority congressional concurrence.[255] On the

other hand, Commissioners Garcia and Tadeo may have veered to the extreme side of the spectrum and their objections may be interpreted as votes against any foreign participation in our natural resources whatsoever. WMCP cites Opinion No. 75, s. 1987,[256] and Opinion No. 175, s. 1990[257] of the Secretary of Justice, expressing the view that a financial or technical assistance agreement “is no different in concept” from the service contract allowed under the 1973 Constitution. This Court is not, however, bound by this interpretation. When an administrative or executive agency renders an opinion or issues a statement of policy, it merely interprets a preexisting law; and the administrative interpretation of the law is at best advisory, for it is the courts that finally determine what the law means.[258] In any case, the constitutional provision allowing the President to enter into FTAAs with foreign-owned corporations is an exception to the rule that participation in the nation’s natural resources is reserved exclusively to Filipinos. Accordingly, such provision must be construed strictly against their enjoyment by non-Filipinos. As Commissioner Villegas emphasized, the provision is “very restrictive.”[259] Commissioner Nolledo also remarked that “entering into service contracts is an exception to the rule on protection of natural resources for the interest of the nation and, therefore, being an exception, it should be subject, whenever possible, to stringent rules.”[260] Indeed, exceptions should be strictly but reasonably construed; they extend only so far as their language fairly warrants and all doubts should be resolved in favor of the general provision rather than the exception.[261] With the foregoing discussion in mind, this Court finds that R.A. No. 7942 is invalid insofar as said Act authorizes service contracts. Although the statute employs the phrase “financial and technical agreements” in accordance with the 1987 Constitution, it actually treats these agreements as service contracts that grant beneficial ownership to foreign contractors contrary to the fundamental law. Section 33, which is found under Chapter VI (Financial or Technical Assistance Agreement) of R.A. No. 7942 states: SEC. 33. Eligibility.—Any qualified person with technical and financial capability to undertake large-scale

exploration, development, and utilization of mineral resources in the Philippines may enter into a financial or technical assistance agreement directly with the Government through the Department. [Emphasis supplied.] “Exploration,” as defined by R.A. No. 7942, means the searching or prospecting for mineral resources by geological, geochemical or geophysical surveys, remote sensing, test pitting, trending, drilling, shaft sinking, tunneling or any other means for the purpose of determining the existence, extent, quantity and quality thereof and the feasibility of mining them for profit.[262] A legally organized foreign-owned corporation may be granted an exploration permit,[263] which vests it with the right to conduct exploration for all minerals in specified areas,[264] i.e., to enter, occupy and explore the same.[265] Eventually, the foreign-owned corporation, as such permittee, may apply for a financial and technical assistance agreement.[266] “Development” is the work undertaken to explore and prepare an ore body or a mineral deposit for mining, including the construction of necessary infrastructure and related facilities.[267] “Utilization” “means the extraction or disposition of minerals.”[268] A stipulation that the proponent shall dispose of the minerals and byproducts produced at the highest price and more advantageous terms and conditions as provided for under the implementing rules and regulations is required to be incorporated in every FTAA.[269] A foreign-owned/-controlled corporation may likewise be granted a mineral processing permit.[270] “Mineral processing” is the milling, beneficiation or upgrading of ores or minerals and rocks or by similar means to convert the same into marketable products.[271] An FTAA contractor makes a warranty that the mining operations shall be conducted in accordance with the provisions of R.A. No. 7942 and its implementing rules[272] and for work programs and minimum expenditures and commitments.[273] And it obliges itself to furnish the

Government records of geologic, accounting, and other relevant data for its mining operation.[274] “Mining operation,” as the law defines it, means mining activities involving exploration, feasibility, development, utilization, and processing.[275] The underlying assumption in all these provisions is that the foreign contractor manages the mineral resources, just like the foreign contractor in a service contract. Furthermore, Chapter XII of the Act grants foreign contractors in FTAAs the same auxiliary mining rights that it grants contractors in mineral agreements (MPSA, CA and JV).[276]Parenthetically, Sections 72 to 75 use the term “contractor,” without distinguishing between FTAA and mineral agreement contractors. And so does “holders of mining rights” in Section 76. A foreign contractor may even convert its FTAA into a mineral agreement if the economic viability of the contract area is found to be inadequate to justify large-scale mining operations,[277] provided that it reduces its equity in the corporation, partnership, association or cooperative to forty percent (40%).[278] Finally, under the Act, an FTAA contractor warrants that it “has or has access to all the financing, managerial, and technical expertise. . . .”[279] This suggests that an FTAA contractor is bound to provide some management assistance – a form of assistance that has been eliminated and, therefore, proscribed by the present Charter. By allowing foreign contractors to manage or operate all the aspects of the mining operation, the abovecited provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nation’s mineral resources to these contractors, leaving the State with nothing but bare title thereto. Moreover, the same provisions, whether by design or inadvertence, permit a circumvention of the constitutionally ordained 60%-40% capitalization requirement for corporations or associations engaged in the exploitation, development and utilization of Philippine natural resources. In sum, the Court finds the following provisions of R.A. No. 7942 to be violative of Section 2, Article XII of the Constitution:

(1) The proviso in Section 3 (aq), which defines “qualified person,” to wit: Provided, That a legally organized foreign-owned corporation shall be deemed a qualified person for purposes of granting an exploration permit, financial or technical assistance agreement or mineral processing permit. (2) Section 23,[280] which specifies the rights and obligations of an exploration permittee, insofar as said section applies to a financial or technical assistance agreement, (3) Section 33, which prescribes the eligibility of a contractor in a financial or technical assistance agreement; (4) Section 35,[281] which enumerates the terms and conditions for every financial or technical assistance agreement; (5) Section 39,[282] which allows the contractor in a financial and technical assistance agreement to convert the same into a mineral production-sharing agreement; [283]

(6) Section 56, which authorizes the issuance of a mineral processing permit to a contractor in a financial and technical assistance agreement; The following provisions of the same Act are likewise void as they are dependent on the foregoing provisions and cannot stand on their own: (1) Section 3 (g),[284] which defines the term “contractor,” insofar as it applies to a financial or technical assistance agreement. Section 34,[285] which prescribes the maximum contract area in a financial or technical assistance agreements; Section 36,[286] which allows negotiations for financial or technical assistance agreements; Section 37,[287] which prescribes the procedure for filing and evaluation of financial or technical assistance agreement proposals;

Section 38,[288] which limits the term of financial or technical assistance agreements; Section 40,[289] which allows the assignment or transfer of financial or technical assistance agreements; Section 41,[290] which allows the withdrawal of the contractor in an FTAA; The second and third paragraphs of Section 81,[291] which provide for the Government’s share in a financial and technical assistance agreement; and Section 90,[292] which provides for incentives to contractors in FTAAs insofar as it applies to said contractors; When the parts of the statute are so mutually dependent and connected as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.[293] There can be little doubt that the WMCP FTAA itself is a service contract. Section 1.3 of the WMCP FTAA grants WMCP “the exclusive right to explore, exploit, utilise[,] process and dispose of all Minerals products and by-products thereof that may be produced from the Contract Area.”[294] The FTAA also imbues WMCP with the following rights: (b) to extract and carry away any Mineral samples from the Contract area for the purpose of conducting tests and studies in respect thereof; (c) to determine the mining and treatment processes to be utilised during the Development/Operating Period and the project facilities to be constructed during the Development and Construction Period; (d) have the right of possession of the Contract Area, with full right of ingress and egress and the right to occupy the same, subject to the provisions of Presidential Decree No. 512 (if applicable) and not be prevented from entry

into private ands by surface owners and/or occupants thereof when prospecting, exploring and exploiting for minerals therein; xxx (f) to construct roadways, mining, drainage, power generation and transmission facilities and all other types of works on the Contract Area; (g) to erect, install or place any type of improvements, supplies, machinery and other equipment relating to the Mining Operations and to use, sell or otherwise dispose of, modify, remove or diminish any and all parts thereof; (h) enjoy, subject to pertinent laws, rules and regulations and the rights of third Parties, easement rights and the use of timber, sand, clay, stone, water and other natural resources in the Contract Area without cost for the purposes of the Mining Operations; xxx (l) have the right to mortgage, charge or encumber all or part of its interest and obligations under this Agreement, the plant, equipment and infrastructure and the Minerals produced from the Mining Operations; x x x. [295] All materials, equipment, plant and other installations erected or placed on the Contract Area remain the property of WMCP, which has the right to deal with and remove such items within twelve months from the termination of the FTAA.[296] Pursuant to Section 1.2 of the FTAA, WMCP shall provide “[all] financing, technology, management and personnel necessary for the Mining Operations.” The mining company binds itself to “perform all Mining Operations . . . providing all necessary services, technology and financing in connection therewith,”[297] and to “furnish all materials, labour, equipment and other installations that may be required for carrying on all Mining Operations.”[298] WMCP may make expansions,

improvements and replacements of the mining facilities and may add such new facilities as it considers necessary for the mining operations.[299] These contractual stipulations, taken together, grant WMCP beneficial ownership over natural resources that properly belong to the State and are intended for the benefit of its citizens. These stipulations are abhorrent to the 1987 Constitution. They are precisely the vices that the fundamental law seeks to avoid, the evils that it aims to suppress. Consequently, the contract from which they spring must be struck down. In arguing against the annulment of the FTAA, WMCP invokes the Agreement on the Promotion and Protection of Investments between the Philippine and Australian Governments, which was signed in Manila on January 25, 1995 and which entered into force on December 8, 1995. x x x. Article 2 (1) of said treaty states that it applies to investments whenever made and thus the fact that [WMCP’s] FTAA was entered into prior to the entry into force of the treaty does not preclude the Philippine Government from protecting [WMCP’s] investment in [that] FTAA. Likewise, Article 3 (1) of the treaty provides that “Each Party shall encourage and promote investments in its area by investors of the other Party and shall [admit] such investments in accordance with its Constitution, Laws, regulations and investment policies” and in Article 3 (2), it states that “Each Party shall ensure that investments are accorded fair and equitable treatment.” The latter stipulation indicates that it was intended to impose an obligation upon a Party to afford fair and equitable treatment to the investments of the other Party and that a failure to provide such treatment by or under the laws of the Party may constitute a breach of the treaty. Simply stated, the Philippines could not, under said treaty, rely upon the inadequacies of its own laws to deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating [WMCP’s] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 such as those mentioned in PD 87 or EO 279. This becomes more significant in the light of the fact that [WMCP’s] FTAA was executed not by a mere Filipino citizen, but by the Philippine Government itself, through its

President no less, which, in entering into said treaty is assumed to be aware of the existing Philippine laws on service contracts over the exploration, development and utilization of natural resources. The execution of the FTAA by the Philippine Government assures the Australian Government that the FTAA is in accordance with existing Philippine laws.[300] [Emphasis and italics by private respondents.] The invalidation of the subject FTAA, it is argued, would constitute a breach of said treaty which, in turn, would amount to a violation of Section 3, Article II of the Constitution adopting the generally accepted principles of international law as part of the law of the land. One of these generally accepted principles is pacta sunt servanda, which requires the performance in good faith of treaty obligations. Even assuming arguendo that WMCP is correct in its interpretation of the treaty and its assertion that “the Philippines could not . . . deprive an Australian investor (like [WMCP]) of fair and equitable treatment by invalidating [WMCP’s] FTAA without likewise nullifying the service contracts entered into before the enactment of RA 7942 . . .,” the annulment of the FTAA would not constitute a breach of the treaty invoked. For this decision herein invalidating the subject FTAA forms part of the legal system of the Philippines.[301] The equal protection clause[302] guarantees that such decision shall apply to all contracts belonging to the same class, hence, upholding rather than violating, the “fair and equitable treatment” stipulation in said treaty. One other matter requires clarification. Petitioners contend that, consistent with the provisions of Section 2, Article XII of the Constitution, the President may enter into agreements involving “either technical or financial assistance” only. The agreement in question, however, is a technical and financial assistance agreement. Petitioners’ contention does not lie. To adhere to the literal language of the Constitution would lead to absurd consequences.[303] As WMCP correctly put it: x x x such a theory of petitioners would compel the government (through the President) to enter into contract with two (2) foreign-owned corporations, one for financial assistance agreement and with the other, for technical

assistance over one and the same mining area or land; or to execute two (2) contracts with only one foreign-owned corporation which has the capability to provide both financial and technical assistance, one for financial assistance and another for technical assistance, over the same mining area. Such an absurd result is definitely not sanctioned under the canons of constitutional construction.[304] [Underscoring in the original.] Surely, the framers of the 1987 Charter did not contemplate such an absurd result from their use of “either/or.” A constitution is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided.[305] Courts are not to give words a meaning that would lead to absurd or unreasonable consequences and a literal interpretation is to be rejected if it would be unjust or lead to absurd results.[306] That is a strong argument against its adoption.[307] Accordingly, petitioners’ interpretation must be rejected.

(3) The Financial and Technical Assistance Agreement between the Government of the Republic of the Philippines and WMC Philippines, Inc.

Bureau of Customs is unconstitutional by reason of its not having

been

confirmed

by

the

Commission

on

Appointments. The respondents, on the other hand,

SO ORDERED. Davide, Jr., C.J., Puno, Quisumbing, Carpio, Corona, Callejo, Sr., and Tinga. JJ., concur. Vitug, J., see Separate Opinion. Panganiban, J., see Separate Opinion. Ynares-Santiago, Sandoval-Gutierrez and AustriaMartinez, JJ., joins J. Panganiban’s separate opinion. Azcuna, no part, one of the parties was a client.

maintain the constitutionality of respondent Mison’s appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the

G.R. No. 79974 ULPIANO

P.

proper remedy to test respondent Mison’s right to the

December 17, 1987 SARMIENTO

III

AND

JUANITO

G.

Office of Commissioner of the Bureau of Customs and of

ARCILLA, petitioners,

whether the petitioners have a standing to bring this suit.

vs.

By the same token, and for the same purpose, the Court

The foregoing discussion has rendered unnecessary the resolution of the other issues raised by the petition.

SALVADOR MISON, in his capacity as COMMISSIONER

allowed the Commission on Appointments to intervene and

OF THE BUREAU OF CUSTOMS, AND GUILLERMO

file a petition in intervention. Comment was required of

WHEREFORE, the petition is GRANTED. The Court hereby declares unconstitutional and void:

CARAGUE, in his capacity as SECRETARY OF THE

respondents on said petition. The comment was filed,

DEPARTMENT OF BUDGET, respondents,

followed by intervenor’s reply thereto. The parties were

COMMISSION ON APPOINTMENTS, intervenor.

also heard in oral argument on 8 December 1987.

(1) The following provisions of Republic Act No. 7942: (a) (b)

This case assumes added significance because, at bottom The proviso in Section 3 (aq), Section 23,

(c)

Section 33 to 41,

(d)

Section 56,

(e) (f)

The second and third paragraphs of Section 81, and Section 90.

(2) All provisions of Department of Environment and Natural Resources Administrative Order 96-40, s. 1996 which are not in conformity with this Decision, and

DECISION

line, it involves a conflict between two (2) great

PADILLA, J.:

departments of government, the Executive and Legislative

Once more the Court is called upon to delineate

Departments. It also occurs early in the life of the 1987

constitutional boundaries. In this petition for prohibition, the

Constitution.

petitioners, who are taxpayers, lawyers, members of the

The task of the Court is rendered lighter by the existence

Integrated Bar of the Philippines and professors of

of relatively clear provisions in the Constitution. In cases

Constitutional Law, seek to enjoin the respondent Salvador

like this, we follow what the Court, speaking through Mr.

Mison from performing the functions of the Office of

Justice (later, Chief Justice) Jose Abad Santos stated

Commissioner of the Bureau of Customs and the

in Gold Creek Mining Corp. vs. Rodriguez, 1 that:

respondent Guillermo Carague, as Secretary of the

The fundamental principle of constitutional construction is

Department of Budget, from effecting disbursements in

to give effect to the intent of the framers of the organic law

payment of Mison’s salaries and emoluments, on the

and of the people adopting it. The intention to which force

ground that Mison’s appointment as Commissioner of the

is to be given is that which is embodied and expressed in

captain, and other officers whose appointments are vested 2

the constitutional provisions themselves.

in him in this Constitution;

The Court will thus construe the applicable constitutional

Second, all other officers of the Government whose

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. “Courts are

3

provisions, not in accordance with how the executive or

appointments are not otherwise provided for by law;

the legislative department may want them construed, but in

Third, those whom the President may be authorized by law

bound to presume that the people adopting a constitution

accordance with what they say and provide.

to appoint;

are familiar with the previous and existing laws upon the 4

Section 16, Article VII of the 1987 Constitution says:

Fourth, officers lower in rank whose appointments the

subjects to which its provisions relate, and upon which

The President shall nominate and, with the consent of the

Congress may by law vest in the President alone.

they express their judgment and opinion in its adoption.”

Commission on Appointments, appoint the heads of the

The first group of officers is clearly appointed with the

(Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A.,

executive

consent

762.) 6

departments,

ambassadors,

other

public

of

the

Commission

on

Appointments.

ministers and consuls, or officers of the armed forces from

Appointments of such officers are initiated by nomination

It will be recalled that, under Sec. 10, Article VII of the

the rank of colonel or naval captain, and other officers

and, if the nomination is confirmed by the Commission on

1935 Constitution, it is provided that —

whose appointments are vested in him in this Constitution.

Appointments, the President appoints. 5

xxx xxx xxx

He shall also appoint all other officers of the Government

The second, third and fourth groups of officers are the

(3) The President shall nominate and with the consent of

whose appointments are not otherwise provided for by law,

present bone of contention. Should they be appointed by

the Commission on Appointments, shall appoint the heads

and those whom he may be authorized by law to appoint.

the President with or without the consent (confirmation) of

of the executive departments and bureaus, officers of the

The Congress may, by law, vest the appointment of other

the Commission on Appointments? By following the

army from the rank of colonel, of the Navy and Air Forces

officers lower in rank in the President alone, in the courts,

accepted rule in constitutional and statutory construction

from the rank of captain or commander, and all other

or in the heads of the departments, agencies, commissions

that an express enumeration of subjects excludes others

officers of the Government whose appointments are not

or boards.

not

those

herein otherwise provided for, and those whom he may be

The President shall have the power to make appointments

appointments to positions expressly stated in the first

authorized by law to appoint; but the Congress may by law

during the recess of the Congress, whether voluntary or

group

vest the appointment of inferior officers, in the President

compulsory, but such appointments shall be effective only

Commission on Appointments. But we need not rely solely

alone, in the courts, or in the heads of departments.

until disapproval by the Commission on Appointments or

on this basic rule of constitutional construction. We can

(4) The President shall have the power to make

until the next adjournment of the Congress.

refer to historical background as well as to the records of

appointments during the recess of the Congress, but such

It is readily apparent that under the provisions of the 1987

the 1986 Constitutional Commission to determine, with

appointments shall be effective only until disapproval by

Constitution, just quoted, there are four (4) groups of

more accuracy, if not precision, the intention of the framers

the Commission on Appointments or until the next

officers whom the President shall appoint. These four (4)

of the 1987 Constitution and the people adopting it, on

adjournment of the Congress.

groups, to which we will hereafter refer from time to time,

whether the appointments by the President, under the

xxx xxx xxx

are:

second, third and fourth groups, require the consent

(7) …, and with the consent of the Commission on

First,

the

heads

of

the

executive

enumerated, require

it the

would consent

follow

that

only

(confirmation)

of

the

departments,

(confirmation) of the Commission on Appointments. Again,

Appointments, shall appoint ambassadors, other public

ambassadors, other public ministers and consuls, officers

in this task, the following advice of Mr. Chief Justice J.

ministers and consuls …

of the armed forces from the rank of colonel or naval

Abad Santos in Gold Creek is apropos:

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of

The proceedings in the 1986 Constitutional Commission

department heads, ambassadors, generals and so on but

bureaus and offices, the officers of the Armed Forces of

support this conclusion. The original text of Section 16,

not to the levels of bureau heads and colonels.

the Philippines from the rank of Brigadier General or

Article VII, as proposed by the Committee on the Executive

xxx xxx xxx 8 (Emphasis supplied.)

Commodore, and all other officers of The government

of the 1986 Constitutional Commission, read as follows:

In the course of the debates on the text of Section 16,

whose appointments are not herein otherwise provided for,

Section 16. The president shall nominate and, with the

there were two (2) major changes proposed and approved

and those whom he may be authorized by law to appoint.

consent of a Commission on Appointment, shall appoint

by the Commission. These were (1) the exclusion of the

However, the Batasang Pambansa may by law vest in the

the heads of the executive departments and bureaus,

appointments of heads of bureaus from the requirement of

Prime Minister, members of the Cabinet, the Executive

ambassadors, other public ministers and consuls, or

confirmation by the Commission on Appointments; and (2)

Committee, Courts, Heads of Agencies, Commissions, and

officers of the armed forces from the rank of colonel or

the exclusion of appointments made under the second

Boards the power to appoint inferior officers in their

naval captain and all other officers of the Government

sentence 9 of the section from the same requirement. The

respective offices.

whose appointments are not otherwise provided for by law,

records

Thus, in the 1935 Constitution, almost all presidential

and those whom he may be authorized by law to appoint.

Commission show the following:

appointments required the consent (confirmation) of the

The Congress may by law vest the appointment of inferior

MR.

Commission on Appointments. It is now a sad part of our

officers in the President alone, in the courts, or in the

recognized

political history that the power of confirmation by the

heads of departments 7 [Emphasis supplied].

THE PRESIDENT: Commissioner Foz is recognized

Commission

1935

The above text is almost a verbatim copy of its counterpart

MR. FOZ: Madam President, my proposed amendment is

Constitution, transformed that commission, many times,

provision in the 1935 Constitution. When the frames

on page 7, Section 16, line 26 which is to delete the words

into a venue of “horse-trading” and similar malpractices.

discussed on the floor of the Commission the proposed

“and bureaus,” and on line 28 of the same page, to change

On the other hand, the 1973 Constitution, consistent with

text of Section 16, Article VII, a feeling was manifestly

the phrase ‘colonel or naval captain to MAJOR GENERAL

the authoritarian pattern in which it was molded and

expressed to make the power of the Commission on

OR REAR ADMIRAL. This last amendment which is co-

remolded by successive amendments, placed the absolute

Appointments over presidential appointments more limited

authored by Commissioner de Castro is to put a period (.)

power of appointment in the President with hardly any

than that held by the Commission in the 1935 Constitution.

after the word ADMIRAL, and on line 29 of the same page,

check on the part of the legislature.

Thus-

start a new sentence with: HE SHALL ALSO APPOINT, et

Given the above two (2) extremes, one, in the 1935

Mr. Rama: … May I ask that Commissioner Monsod be

cetera.

Constitution and the other, in the 1973 Constitution, it is

recognized

MR. REGALADO: May we have the amendments one by

not difficult for the Court to state that the framers of the

The President: We will call Commissioner Davide later.

one. The first proposed amendment is to delete the words

1987 Constitution and the people adopting it, struck a

Mr. Monsod: With the Chair’s indulgence, I just want to

“and bureaus” on line 26.

“middle ground” by requiring the consent (confirmation) of

take a few minutes of our time to lay the basis for some of

MR. FOZ: That is correct.

the Commission on Appointments for the first group of

the amendments that I would like to propose to the

MR.

appointments and leaving to the President, without such

Committee this morning.

Commissioners, what would be the justification of the

confirmation, the appointment of other officers, i.e., those

xxx xxx xxx

proponent for such a deletion?

in the second and third groups as well as those in the

On Section 16, I would like to suggest that the power of

MR. FOZ: The position of bureau director is actually quite

fourth group, i.e., officers of lower rank.

the Commission on Appointments be limited to the

low in the executive department, and to require further

on

Appointments,

under

the

of

the

ROMULO: I

REGALADO:

deliberations

of

the

Constitutional

ask that Commissioner Foz be

For

the

benefit

of

the

other

confirmation of presidential appointment of heads of

directors no longer need confirmation by the Commission

the President, as a matter of fact like those of the different

bureaus would subject them to political influence.

on Appointment.

constitutional commissions.

proposed

Section 16, therefore, would read: ‘The President shall

FR. BERNAS: That is correct. This list of officials found in

amendment by deletion also includes regional directors as

nominate, and with the consent of a Commission on

Section 16 is not an exclusive list of those appointments

distinguished from merely staff directors, because the

Appointments, shall appoint the heads of the executive

which

regional directors have quite a plenitude of powers within

departments, ambassadors. . . .

Commission on Appointments,

the regions as distinguished from staff directors who only

THE PRESIDENT: Is there any objection to delete the

MR. DAVIDE: That is the reason I seek the incorporation

stay in the office.

phrase ‘and bureaus’ on page 7, line 26? (Silence) The

of the words I proposed.

MR. FOZ: Yes, but the regional directors are under the

Chair hears none; the amendments is approved.

FR. BERNAS: Will Commissioner Davide restate his

supervision of the staff bureau directors.

xxx xxx xxx

proposed amendment?

xxx xxx xxx

MR. ROMULO: Madam President.

MR. DAVIDE: After ‘captain,’ add the following: AND

MR.

MR.

REGALADO:

MAAMBONG:

The

Commissioner’s

VESTED IN HIM IN THIS CONSTITUTION.

amendment to delete ‘and bureaus on Section 16. Who

MR. FOZ: Madam President, this is the third proposed

FR. BERNAS: How about:”AND OTHER OFFICERS

will then appoint the bureau directors if it is not the

amendment on page 7, line 28. 1 propose to put a period

WHOSE APPOINTMENTS REQUIRE CONFIRMATION

President?

(.) after ‘captain’ and on line 29, delete ‘and all’ and

UNDER THIS CONSTITUTION”?

MR. FOZ: It is still the President who will appoint them but

substitute it with HE SHALL ALSO APPOINT ANY.

MR. DAVIDE: Yes, Madam President, that is modified by

their

MR.

the Committee.

be

question

subject

to

the

OTHER OFFICERS WHOSE APPOINTMENTS ARE

longer

a

of

THE PRESIDENT: Commissioner Foz is recognized

no

direct

confirmation

THE PRESIDENT: The Acting Floor Leader is recognized.

shall

I

require

Commissioner Foz? The Commissioner proposed an

appointment

May

constitutionally

to

REGALADO: Madam

President,

the

Committee

confirmation by the Commission on Appointments.

accepts the proposed amendment because it makes it

FR. BERNAS: That will clarify things.

MR. MAAMBONG: In other words, it is in line with the

clear that those other officers mentioned therein do not

THE PRESIDENT: Does the Committee accept?

same answer of Commissioner de Castro?

have

MR. REGALADO: Just for the record, of course, that

MR. FOZ: Yes.

Appointments.

excludes those officers which the Constitution does not

MR. MAAMBONG: Thank you.

MR. DAVIDE: Madam President.

require confirmation by the Commission on Appointments,

THE PRESIDENT: Is this clear now? What is the reaction

THE PRESIDENT: Commissioner Davide is recognized.

like the members of the judiciary and the Ombudsman.

of the Committee?

xxx xxx xxx

MR. DAVIDE: That is correct. That is very clear from the

xxx xxx xxx

MR. DAVIDE: So would the proponent accept an

modification made by Commissioner Bernas.

MR. REGALADO: Madam President, the Committee feels

amendment to his amendment, so that after “captain” we

THE PRESIDENT: So we have now this proposed

that this matter should be submitted to the body for a vote.

insert the following words: AND OTHER OFFICERS

amendment of Commissioners Foz and Davide.

MR. DE CASTRO: Thank you.

WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS

xxx xxx xxx

MR. REGALADO: We will take the amendments one by

CONSTITUTION?

THE PRESIDENT: Is there any objection to this proposed

one. We will first vote on the deletion of the phrase ‘and

FR. BERNAS: It is a little vague.

amendment of Commissioners Foz and Davide as

bureaus on line 26, such that appointments of bureau

MR. DAVIDE: In other words, there are positions provided

accepted by the Committee? (Silence) The Chair hears

to

be

confirmed

by

the

Commission

on

for in the Constitution whose appointments are vested in

none;

the

approved

10

amendment,

as

amended,

is

Rather than limit the area of consideration to the possible

appointments of other officers are left to the President

meanings of the word “also” as used in the context of said

without need of confirmation by the Commission on

It is, therefore, clear that appointments to the second and

second sentence, the Court has chosen to derive

Appointments. This conclusion is inevitable, if we are to

third groups of officers can be made by the President

significance from the fact that the first sentence speaks of

presume, as we must, that the framers of the 1987

without the consent (confirmation) of the Commission on

nomination by the President and appointment by the

Constitution were knowledgeable of what they were doing

Appointments.

President with the consent of the Commission on

and of the foreseeable effects thereof.

It

(Emphasis supplied).

Neptali

Appointments, whereas, the second sentence speaks only

Besides, the power to appoint is fundamentally executive

Gonzales, that the second sentence of Sec. 16, Article VII

is contended

of appointment by the President. And, this use of different

or presidential in character. Limitations on or qualifications

reading-

language in two (2) sentences proximate to each other

of such power should be strictly construed against them.

He (the President) shall also appoint all other officers of

underscores a difference in message conveyed and

Such limitations or qualifications must be clearly stated in

the Government whose appointments are not otherwise

perceptions established, in line with Judge Learned Hand’s

order to be recognized. But, it is only in the first sentence

provided for by law and those whom he may be authorized

observation that

alien

of Sec. 16, Art. VII where it is clearly stated that

by law to appoint . . . . (Emphasis supplied)

juxtaposition” but, more so, because the recorded

appointments by the President to the positions therein

with particular reference to the word “also,” implies that the

proceedings of the 1986 Constitutional Commission clearly

enumerated require the consent of the Commission on

President shall “in like manner” appoint the officers

and expressly justify such differences.

Appointments.

mentioned in said second sentence. In other words, the

As a result of the innovations introduced in Sec. 16, Article

As to the fourth group of officers whom the President can

President shall appoint the officers mentioned in said

VII of the 1987 Constitution, there are officers whose

appoint, the intervenor Commission on Appointments

second sentence in the same manner as he appoints

appointments require no confirmation of the Commission

underscores the third sentence in Sec. 16, Article VII of the

officers mentioned in the first sentence, that is, by

on Appointments, even if such officers may be higher in

1987 Constitution, which reads:

nomination and with the consent (confirmation) of the

rank, compared to some officers whose appointments

The Congress may, by law, vest the appointment of other

Commission on Appointments.

have to be confirmed by the Commission on Appointments

officers lower in rank in the President alone, in the courts,

Amicus curiae’s reliance on the word “also” in said second

under the first sentence of the same Sec. 16, Art. VII.

or in the heads of departments, agencies, commissions, or

sentence is not necessarily supportive of the conclusion he

Thus, to illustrate, the appointment of the Central Bank

boards. [Emphasis supplied].

arrives at. For, as the Solicitor General argues, the word

Governor requires no confirmation by the Commission on

and argues that, since a law is needed to vest the

“also” could mean “in addition; as well; besides, too”

Appointments, even if he is higher in rank than a colonel in

appointment

(Webster’s International Dictionary, p. 62, 1981 edition)

the Armed Forces of the Philippines or a consul in the

President alone, this implies that, in the absence of such a

which meanings could, on the contrary, stress that the

Consular Service.

law, lower-ranked officers have to be appointed by the

word “also” in said second sentence means that the

But these contrasts, while initially impressive, merely

President subject to confirmation by the Commission on

President, in addition to nominating and, with the consent

underscore

deliberate

Appointments; and, if this is so, as to lower-ranked officers,

of the Commission on Appointments, appointing the

judgment of the framers of the 1987 Constitution that,

it follows that higher-ranked officers should be appointed

officers enumerated in the first sentence, can appoint

except as to those officers whose appointments require

by the President, subject also to confirmation by the

(without

the consent of the Commission on Appointments by

Commission on Appointments.

such

by amicus curiae,

consent

Senator

(confirmation)

mentioned in the second sentence-

the

officers

the

“words

are not

purposive

pebbles

intention

and

in

express mandate of the first sentence in Sec. 16, Art. VII,

of

lower-ranked

officers

in

the

The respondents, on the other hand, submit that the third

In other words, since the 1935 Constitution subjects, as a

16, Article VII. And, this redundancy cannot prevail over

sentence of Sec. 16, Article VII, abovequoted, merely

general rule, presidential appointments to confirmation by

the clear and positive intent of the framers of the 1987

declares that, as to lower-ranked officers, the Congress

the Commission on Appointments, the same 1935

Constitution that presidential appointments, except those

may by law vest their appointment in the President, in the

Constitution saw fit, by way of an exception to such rule, to

mentioned in the first sentence of Sec. 16, Article VII, are

courts, or in the heads of the various departments,

provide that Congress may, however, by law vest the

not subject to confirmation by the Commission on

agencies, commissions, or boards in the government. No

appointment of inferior officers (equivalent to 11 officers

Appointments.

reason however is submitted for the use of the word

lower in rank” referred to in the 1987 Constitution) in the

Coming now to the immediate question before the Court, it

“alone” in said third sentence.

President alone, in the courts, or in the heads of

is evident that the position of Commissioner of the Bureau

The Court is not impressed by both arguments. It is of the

departments,

of Customs (a bureau head) is not one of those within the

considered

the

In the 1987 Constitution, however, as already pointed out,

first group of appointments where the consent of the

deliberations of the 1986 Constitutional Commission, that

opinion,

after

a

careful

study

of

the clear and expressed intent of its framers was to

Commission on Appointments is required. As a matter of

the use of the word alone” after the word “President” in

exclude presidential appointments from confirmation by the

fact, as already pointed out, while the 1935 Constitution

said third sentence of Sec. 16, Article VII is, more than

Commission on Appointments, except appointments to

includes “heads of bureaus” among those officers whose

anything else, a slip or lapses in draftsmanship. It will be

offices expressly mentioned in the first sentence of Sec.

appointments need the consent of the Commission on

recalled that, in the 1935 Constitution, the following

16, Article VII. Consequently, there was no reason to use

Appointments, the 1987 Constitution on the other hand,

provision appears at the end of par. 3, section 1 0, Article

in the third sentence of Sec. 16, Article VII the word “alone”

deliberately excluded the position of “heads of bureaus”

VII thereof —

after the word “President” in providing that Congress may

from appointments that need the consent (confirmation) of

…; but the Congress may by law vest the appointment of

by law vest the appointment of lower-ranked officers in the

the Commission on Appointments.

inferior officers, in the President alone, in the courts, or in

President alone, or in the courts, or in the heads of

Moreover, the President is expressly authorized by law to

the heads of departments. [Emphasis supplied].

departments, because the power to appoint officers whom

appoint the Commissioner of the Bureau of Customs. The

The above provision in the 1935 Constitution appears

he (the President) may be authorized by law to appoint is

original text of Sec. 601 of Republic Act No. 1937,

immediately after the provision which makes practically all

already

of

otherwise known as the Tariff and Customs Code of the

presidential appointments subject to confirmation by the

confirmation by the Commission on Appointments, in the

Philippines, which was enacted by the Congress of the

Commission on Appointments, thus-

second sentence of the same Sec. 16, Article VII.

Philippines on 22 June 1957, reads as follows:

3. The President shall nominate and with the consent of

Therefore, the third sentence of Sec. 16, Article VII could

601. Chief Officials of the Bureau.-The Bureau of Customs

the Commission on Appointments, shall appoint the heads

have stated merely that, in the case of lower-ranked

shall have one chief and one assistant chief, to be known

of the executive departments and bureaus, officers of the

officers, the Congress may by law vest their appointment

respectively as the Commissioner (hereinafter known as

Army from the rank of colonel, of the Navy and Air Forces

in the President, in the courts, or in the heads of various

the ‘Commissioner’) and Assistant Commissioner of

from the rank of captain or commander, and all other

departments of the government. In short, the word “alone”

Customs, who shall each receive an annual compensation

officers of the Government whose appointments are not

in the third sentence of Sec. 16, Article VII of the 1987

in accordance with the rates prescribed by existing laws.

herein provided for, and those whom he may be

Constitution, as a literal import from the last part of par. 3,

The Assistant

authorized by law to appoint; …

section 10, Article VII of the 1935 Constitution, appears to

appointed by the proper department head.

vested

in

the

President, without

need

be redundant in the light of the second sentence of Sec.

Commissioner of

Customs shall

be

Sec. 601 of Republic Act No. 1937, was amended on 27

the office and to receive all the salaries and emoluments

October 1972 by Presidential Decree No. 34, amending

pertaining thereto.

the Tariff and Customs Code of the Philippines. Sec. 601,

WHEREFORE, the petition and petition in intervention

as thus amended, now reads as follows:

should be, as they are, hereby DISMISSED. Without costs.

Sec. 601. Chief Officials of the Bureau of Customs.-The

SO ORDERED.

Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter

known

as

Commissioner)

and

Deputy

Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.

prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.)

DECISION KAPUNAN, J.:

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorized by law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the “Marines”) to join the Philippine National Police (the “PNP”) in visibility patrols around the metropolis. In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines (the “AFP”), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the “LOI”) which detailed the manner by which the joint visibility patrols, called Task ForceTulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro Manila. Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum, dated 24 January 2000, addressed to the

Chief of Staff of the AFP and the PNP Chief. [3] In the Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila through a more effective crime prevention program including increased police patrols.[4] The President further stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence.[6] Finally, the President declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved.[7] The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows: xxx 2. PURPOSE: The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to national security. 3. SITUATION: Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized syndicates whose members include active and former police/military personnel whose training, skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel. 4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes especially those perpetrated by organized crime syndicates whose members include those that are welltrained, disciplined and well-armed active or former PNP/Military personnel. 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS: a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the state against insurgents and other serious threat to national security, although the primary responsibility over Internal Security Operations still rests upon the AFP. b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace and order in their locality. c. To ensure the effective implementation of this project, a provisional Task Force “TULUNGAN” shall be organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating, monitoring and assessing the security situation. xxx.[8] The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati

Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9] On 17 January 2000, the Integrated Bar of the Philippines (the “IBP”) filed the instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that: I THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT: A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION; C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT. II IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10] Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement.

Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January 2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines, contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police visibility patrols, which feature the teamup of one police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution. The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the President’s factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP. The petition has no merit. First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

“Legal standing” or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.[13] The term “interest” means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.[14] The gist of the question of standing is whether a party alleges “such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.”[15] In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be affected by the deployment of the Marines. It should also be noted that the interest of the National President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action. To be

sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated by the deployment of the Marines. What the IBP projects as injurious is the supposed “militarization” of law enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long run. Not only is the presumed “injury” not personal in character, it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the controversy.

The President did not commit grave abuse of discretion in calling out the Marines.

Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit which does not satisfy the requirement of legal standing when paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people.[17] Thus, when the issues raised are of paramount importance to the public, the Court may brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue now, rather than later.

As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of judicial review. But, while this Court gives considerable weight to the parties’ formulation of the issues, the resolution of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised by the President is the power to call out the armed forces, the Court is of the view that the power involved may be no more than the maintenance of peace and order and promotion of the general welfare.[20] For one, the realities on the ground do not show that there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court “review the sufficiency of the factual basis for said troop [Marine] deployment.”[19] The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which are beyond the review powers of this Court.

More particularly, this case calls for the exercise of the President’s powers as protector of the peace. [Rossiter, The American Presidency]. The power

of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security. xxx[21] Nonetheless, even if it is conceded that the power involved is the President’s power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result. We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the judiciary because it involves a political question, and thus, not justiciable. As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are “political questions.” The reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another coequal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution.

As Tañada v. Cuenco[23] puts it, political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.” Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] “[p]rominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on the one question.” The 1987 Constitution expands the concept of judicial review by providing that “(T)he Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”[25] Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When political questions are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.[28]

By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of the President, it may look into the question of whether such exercise has been made in grave abuse of discretion.[30] A showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to justiciable controversy.[31] When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition that grave abuse was committed because the power to call was exercised in such a manner as to violate the constitutional provision on civilian supremacy over the military. In the performance of this Court’s duty of “purposeful hesitation”[32] before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere with the President’s judgment. To doubt is to sustain. There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. Section 18,

Article VII of the Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. xxx The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus: xxx Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. xxx

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President’s action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.[33] That the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to wit: FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence. When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to

FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: “The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.” So we feel that that is sufficient for handling imminent danger. MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First Sentence: “The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion.” So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ ofhabeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea? MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.[34] The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of

the power to call out the armed forces. The only criterion is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-inChief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless

the petitioner can show that the exercise of such discretion was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this Court. The President has already determined the necessity and factual basis for calling the armed forces. In his Memorandum, he categorically asserted that, “[V]iolent crimes like bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila...”[35] We do not doubt the veracity of the President’s assessment of the situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is “militarized” in violation of Section 3, Article II[36] of the Constitution. We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNPPhilippine Marines joint visibility patrols.[37] Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures.[38] It is their responsibility to

direct and manage the deployment of the Marines.[39] It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an “insidious incursion” of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41] In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP. Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no “insidious incursion” of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution. It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally “civil” functions. As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are: 1. Elections;[42] 2. Administration of the Philippine National Red Cross;[43]

3.

Relief and rescue operations calamities and disasters;[44]

4.

Amateur sports development;[45]

during

promotion

and

similar to those surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision of the Act states:

5. Development of the culture and the arts;[46] 6. Conservation of natural resources;[47] 7. Implementation of the agrarian reform program;[48] 8. Enforcement of customs laws;[49] 9. Composite civilian-military law enforcement activities;[50] 10. Conduct of licensure examinations;[51] 11. Conduct of nationwide tests for elementary and high school students;[52] 12. Anti-drug enforcement activities;[53] 13. Sanitary inspections;

[54]

14. Conduct of census work;[55] 15. Administration of the Civil Aeronautics Board;[56] 16. Assistance in installation of weather forecasting devices;[57] 17. Peace and order policy formulation in local government units.[58] This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned.[59] What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy. In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for the power to call, the use of military personnel by civilian law enforcement officers is allowed under circumstances

§ 1385. Use of Army and Air Force as posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62] To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US courts[63] apply the following standards, to wit: Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively? x x x When this concept is transplanted into the present legal context, we take it to mean that military involvement, even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis supplied) Even if the Court were to apply the above rigid standards to the present case to determine whether there is permissible use of the military in civilian law

enforcement, the conclusion is inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the Solicitor General: 3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power for civilian law enforcement.[71] It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s determination of the factual basis for the calling of the Marines to prevent or suppress lawless violence. One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED. SO ORDERED. Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Bellosillo, J., on official leave. Puno, J., see separate opinion. Vitug, J., see separate opinion. Mendoza, J., see concurring and dissenting opinion. Panganiban, J., in the result. Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.: If the case at bar is significant, it is because of the government attempt to foist the political question doctrine to shield an executive act done in the exercise of the commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of judicial review and weakened the checking authority of this Court over the Chief Executive when he exercises his commander-in-chief powers. The attempt should remind us of the tragedy that befell the country when this Court sought refuge in the political question doctrine and forfeited its most important role as protector of the civil and political rights of our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive to resort to the use of his greater commander-inchief powers, hence, this Court should be extra cautious in assaying similar attempts. A laid back posture may not sit well with our people considering that the 1987 Constitution strengthened the checking powers of this Court and expanded its jurisdiction precisely to stop any act constituting “xxx grave abuse of jurisdiction xxx on the part of any branch or instrumentality of the Government.”1 The importance of the issue at bar includes this humble separate opinion. We can best perceive the different intersecting dimensions of the political question doctrine by viewing them from the broader canvass of

history. Political questions are defined as “those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government.”2 They have two aspects: (1) those matters that are to be exercised by the people in their primary political capacity and (2) matters which have been specifically delegated to some other department or particular office of the government, with discretionary power to act.3 The exercise of the discretionary power of the legislative or executive branch of government was often the area where the Court had to wrestle with the political question doctrine.4 A brief review of some of our case law will thus give us a sharper perspective of the political question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v. Baker.5 The GovernorGeneral of the Philippine Islands, pursuant to a resolution of the Philippine Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not the judicial department may investigate the facts upon which the legislative (the Philippine Commission) and executive (the Governor-General) branches of government acted in suspending the privilege of the writ. The Court ruled that under our form of government, one department has no authority to inquire into the acts of another, which acts are performed within the discretion of the other department.6Surveying American law and jurisprudence, it held that whenever a statute gives discretionary power to any person, to be exercised by him upon his own opinion of certain facts, the statute constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine Commission and the Governor-General to suspend the privilege of the writ of habeas corpus, this power is exclusively within the discretion of the legislative and executive branches of government. The exercise of this discretion is conclusive upon the courts.8 The Court further held that once a determination is made by the executive and legislative departments that the

conditions justifying the assailed acts exists, it will presume that the conditions continue until the same authority decide that they no longer exist.9 It adopted the rationale that the executive branch, thru its civil and military branches, are better situated to obtain information about peace and order from every corner of the nation, in contrast with the judicial department, with its very limited machinery.10 The seed of the political question doctrine was thus planted in Philippine soil. The doctrine barring judicial review because of the political question doctrine was next applied to the internal affairs of the legislature. The Court refused to interfere in the legislative exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a debate, and was suspended from office for one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the Senate to reinstate him. The Court held that under the Jones Law, the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office. While the Court found that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in the exercise of their legislative powers by any judicial process."12 The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three senators-elect who had been prevented from taking their oaths of office by a Senate resolution repaired to this Court to compel their colleagues to allow them to occupy their seats contending that only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent right of the legislature to determine who shall be admitted to its membership. In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for the passage of the Parity amendment

to the Constitution. If their votes had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either House of Congress to pass the amendment. The amendment was eventually submitted to the people for ratification. The Court declined to intervene and held that a proposal to amend the Constitution is a highly political function performed by Congress in its sovereign legislative capacity.15 In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of his detention ordered by the Senate for his refusal to answer questions put to him by members of one of its investigating committees. This Court refused to order his release holding that the process by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the legislative process and the legislature's exercise of its discretionary authority is not subject to judicial interference. In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line. Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious disorderly behavior for making a privilege speech imputing "malicious charges" against the President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court once more did not interfere with Congress' power to discipline its members. The contours of the political question doctrine have always been tricky. To be sure, the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his successor's title claiming that the latter had been elected without a quorum. The petition was initially dismissed on the ground that the selection of Senate President was an internal matter and not subject to judicial review.19 On reconsideration, however, the Court ruled that it could assume jurisdiction over the controversy in light of subsequent events justifying intervention among which was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared respondent Cuenco as the legally elected Senate President. In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute involving the formation

and composition of the Senate Electoral Tribunal. It rejected the Solicitor General's claim that the dispute involved a political question. Instead, it declared that the Senate is not clothed with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal and the exercise of its power thereon is subject to constitutional limitations which are mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election contests affecting members of the lawmaking body.23 The Court then nullified the election to the Senate Electoral Tribunal made by Senators belonging to the party having the largest number of votes of two of their party members but purporting to act on behalf of the party having the second highest number of votes.

necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives upon the ground that the apportionment had not been made as may be possible according to the number of inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the issues therein raised were political questions the determination of which is beyond judicial review.”27

In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress had formed the Commission on Appointments in accordance with the Constitution and found that it did not. It declared that the Commission on Appointments is a creature of the Constitution and its power does not come from Congress but from the Constitution.

The Court explained that the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. As a constituent assembly, the members of Congress derive their authority from the fundamental law and they do not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling was reiterated in Tolentino which held that acts of a constitutional convention called for the purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a constituent assembly.29

The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a constituent assembly in proposing amendments to the Constitution violates the Constitution was held to be a justiciable and not a political issue. In Gonzales, the Court ruled: "It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution-which was being submitted to the people for ratification-satisfied the threefourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators

In sum, this Court brushed aside the political question doctrine and assumed jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers conferred upon the Legislature.30 The Court hewed to the same line as regards the exercise of Executive power. Thus, the respect accorded executive discretion was observed in Severino v. Governor-General,31where it was held that the GovernorGeneral, as head of the executive department, could not be compelled by mandamus to call a special election in the town of Silay for the purpose of electing a municipal president. Mandamus and injunction could not lie to enforce or restrain a duty which is discretionary. It was held that when the Legislature conferred upon the Governor-General powers and duties, it did so for the reason that he was in a better position to know the needs of the country than any other member of the executive department, and with full confidence that he will perform such duties as his best judgment dictates.32

Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be compelled by mandamus to produce certain vouchers showing the various expenditures of the Independence Commission. Under the principle of separation of powers, it ruled that it was not intended by the Constitution that one branch of government could encroach upon the field of duty of the other. Each department has an exclusive field within which it can perform its part within certain discretionary limits.34 It observed that "the executive and legislative departments of government are frequently called upon to deal with what are known as political questions, with which the judicial department of government has no intervention. In all such questions, the courts uniformly refused to intervene for the purpose of directing or controlling the actions of the other department; such questions being many times reserved to those departments in the organic law of the state."35 In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief Executive from deporting an obnoxious alien whose continued presence in the Philippines was found by him to be injurious to the public interest. It noted that sudden and unexpected conditions may arise, growing out of the presence of untrustworthy aliens, which demand immediate action. The President's inherent power to deport undesirable aliens is universally denominated as political, and this power continues to exist for the preservation of the peace and domestic tranquility of the nation.37 In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the President's appointing power. It held that the appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from the need of securing concurrence of the Commission on Appointments and from the exercise of the limited legislative power to prescribe qualifications to a given appointive office. We now come to the exercise by the President of his powers as Commander-in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief of the Armed Forces, the President has the power to determine whether war, in the legal sense, still continues or has terminated. It ruled that it is within the province of the political department and not

of the judicial department of government to determine when war is at end.39

arbitrarily.44 Using this yardstick, the Court found that the President did not.

In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the authority to decide whether the exigency has arisen requiring the suspension of the privilege belongs to the President and his decision is final and conclusive on the courts.41

The emergency period of the 1970's flooded the Court with cases which raised the political question defense. The issue divided the Court down the middle. Javellana v. Executive Secretary45 showed that while a majority of the Court held that the issue of whether or not the 1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and effect, with or without constitutional ratification, was a political question. 46

Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang reversed the previous cases and held that the suspension of the privilege of the writ of habeas corpus was not a political question. According to the Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call out the militia which is a much broader power than suspension of the privilege of the writ; and (2) the privilege was suspended by the American GovernorGeneral whose act, as representative of the sovereign affecting the freedom of its subjects, could not be equated with that of the President of the Philippines dealing with the freedom of the sovereign Filipino people. The Court declared that the power to suspend the privilege of the writ of habeas corpus is neither absolute nor unqualified because the Constitution sets limits on the exercise of executive discretion on the matter. These limits are: (1) that the privilege must not be suspended except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for the suspension shall exist. The extent of the power which may be inquired into by courts is defined by these limitations.43 On the vital issue of how the Court may inquire into the President's exercise of power, it ruled that the function of the Court is not to supplant but merely to check the Executive; to ascertain whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the question of whether the President did not act

The validity of the declaration of martial law by then President Marcos was next litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On whether the validity of the imposition of martial law was a political or justiciable question, the Court was almost evenly divided. One-half embraced the political question position and the other half subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine used different methods of approach to it.48 In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus. The Court found that the PCO had the function of validating a person's detention for any of the offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a view to reverting to Barcelon and Montenegro. It observed that in times of war or national emergency, the President must be given absolute control for the very life of the nation and government is in great peril. The President, it intoned, is answerable only to his conscience, the people, and God.51 But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every phase and aspect of a person's detention from the moment he was taken into custody up

to the moment the court passes upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due process clause of the Constitution has been met.53 It is now history that the improper reliance by the Court on the political question doctrine eroded the people's faith in its capacity to check abuses committed by the then Executive in the exercise of his commander-in-chief powers, particularly violations against human rights. The refusal of courts to be pro-active in the exercise of its checking power drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA. Two lessons were not lost to the members of the Constitutional Commission that drafted the 1987 Constitution. The first was the need to grant this Court the express power to review the exercise of the powers as commander-in-chief by the President and deny it of any discretion to decline its exercise. The second was the need to compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse of discretion on the part of any branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads: "Sec. 1. x x x. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The language of the provision clearly gives the Court the power to strike down acts amounting to grave abuse of discretion of both the legislative and executive branches of government. We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. x x x." It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the exercise of the power and the objective sought to be attained by the exercise of the power. They define the constitutional parameters of the calling out power. Whether or not there is compliance with these parameters is a justiciable issue and is not a political question.

I am not unaware that in the deliberations of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but a political question and therefore not subject to judicial review. It must be borne in mind, however, that while a member's opinion expressed on the floor of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55The proceedings of the Convention are less conclusive on the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, for in the latter case it is the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of the people through the discussions and deliberations of their representatives.56 The conventional wisdom is that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it, the intent to be arrived at is that of the people.57 It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the power to review the sufficiency of the factual bases used by the President in the suspension of the privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however, that just because the same provision did not grant to this Court the power to review the exercise of the calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise. Given the light of our constitutional history, this express grant of power merely means that the Court cannot decline the exercise of its power because of the political question doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty of this Court to check the exercise of the commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its power of review thru the use of the political question doctrine. It may be conceded that the calling out power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief Executive as

Commander-in-Chief of the armed forces, as its impact on the rights of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and political rights of our people. The exercise of the calling out power may be "benign" in the case at bar but may not be so in future cases. The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring Opinion in Lansang that it would be dangerous and misleading to push the political question doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the "political" and the "justiciable. "58 We should not water down the ruling that deciding whether a matter has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though questions of extreme political importance are necessarily involved.60 Every officer under a constitutional government must act according to law and subject to the controlling power of the people, acting through the courts, as well as through the executive and legislative. One department is just as representative of the other, and the judiciary is the department which is charged with the special duty of determining the limitations which the law places upon all official action.61 Thishistoric role of the Court is the foundation stone of a government of laws and not of men.62 I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial power" to be that which “x x x includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”1

jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the act of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative, to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I believe, constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law. Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting: It is not meant that the Supreme Court must be deemed vested with the awesome power of overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its mandate. But while this Court does not wield unlimited authority to strike down an act of its two co-equal branches of government, it must not wither under technical guise on its constitutionally ordained task to intervene, and to nullify if need be, any such act as and when it is attended by grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then against an interposition by the Court into purely political questions, heretofore known, no longer holds within that context. Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion: "x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to see that no one branch or agency of the government transcends the Constitution, not only in justiceable but political questions as well."3 It is here when the Court must have to depart from the broad principle of separation of powers that disallows an intrusion by it in respect to the purely political decisions of its independent and coordinate agencies of government. The term grave abuse of discretion is long understood in our jurisprudence as being, and confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of

I concur in the opinion of the Court insofar as it holds petitioner to be without standing to question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses the petition in this case on other grounds. I submit that judgment on the substantive constitutional issues raised by petitioner must await an actual case involving real parties with "injuries" to show as a result of the operation of the challenged executive action. While as an organization for the advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to give petitioner standing. As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent nature; (2) there must be a causal connection between the injury and the conduct complained of; and (3) the injury is likely to be redressed by a favorable action by this Court.1 The "injury in fact" test requires more than injury to a cognizable interest. It requires that the party seeking review be himself among those injured.2 My insistence on compliance with the standing requirement is grounded in the conviction that only a party injured by the operation of the governmental action challenged is in the best position to aid the Court in determining the precise nature of the problem presented. Many a time we have adverted to the power of

judicial review as an awesome power not to be exercised save in the most exigent situation. For, indeed, sound judgment on momentous constitutional questions is not likely to be reached unless it is the result of a clash of adversary arguments which only parties with direct and specific interest in the outcome of the controversy can make. This is true not only when we strike down a law or official action but also when we uphold it. In this case, because of the absence of parties with real and substantial interest to protect, we do not have evidence on the effect of military presence in malls and commercial centers, i.e., whether such presence is coercive or benign. We do not know whether the presence of so many marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of troops to such places is not like parading them at the Luneta on Independence Day. Neither is it, however, like calling them out because of actual fighting or the outbreak of violence. We need to have evidence on these questions because, under the Constitution, the President's power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is subject to the limitation that the exercise of this power is required in the interest of public safety.3 Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise in the conceivable' . . . but requires . . . a factual showing of perceptible harm."5 Because of the absence of such record evidence, we are left to guess or even speculate on these questions. Thus, at one point, the majority opinion says that what is involved here is not even the calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At another point, however, the majority opinion somersaults and says that because of bombings perpetrated by lawless elements, the

deployment of troops in shopping centers and public utilities is justified. (p. 24)

A petition for prohibition and writ of habeas corpus to enjoin respondent Judge Fernando Cruz, Jr. from

We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution, just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in the Angara case, "this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented."6

promulgating his decision in Criminal Case No. C-5910, entitled People of the Philippines versus Bernardino Marcelino, and for release from detention of petitioner, the accused in said case, on the ground of loss of jurisdiction of respondent trial court over the case for failure to decide the same within the period of ninety [90] days from submission thereof. Petitioner was charged with the crime of rape before the

We are told, however, that the issues raised in this case are of "paramount interest" to the nation. It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence.

Court of First Instance of Rizal, Branch XII. Trial was

For these reasons and with due appreciation of the scholarly attention lavished by the majority opinion on the constitutional questions raised, I am constrained to limit my concurrence to the dismissal of this suit on the ground of lack of standing o f petitioner and the consequent lack of an actual case or controversy.

Upon joint motion, the parties are given thirty [30] days to

conducted and the same was concluded when the accused rested his case on August 4, 1975. On the same date, however, the attorneys for both parties moved for time within which to submit their respective memoranda. The trial court granted the motion as follows: submit their respective memoranda, simultaneously, and thereafter the case shall be deemed submitted for decision of the Court. Counsel for petitioner submitted his memorandum in due time, but no memorandum was filed by the People.

G.R. No. L-42428

March 18, 1983

BERNARDINO MARCELINO, petitioner,

On November 28, 1975, respondent judge filed with the Deputy Clerk of Court his decision in said case for promulgation. The decision was also dated November 28,

vs. THE HON. FERNANDO CRUZ, JR., as Presiding Judge of Branch XII of the Court of First Instance of Rizal, PEOPLE OF THE PHILIPPINES, and THE PROVINCIAL WARDEN OF THE PROVINCIAL JAIL OF RIZAL,respondents.

1975. 1 A certification dated January 26, 1976 was executed by Postmaster Jesse A. Santos of the Grace Park Post Office2 to the effect that registered letters Nos. 011980 and 011981, addressed to Marietta Ferrer of 9-E Mango Road,

DECISION ESCOLIN, J.:

Portero, Malabon, Rizal, the complaining witness, and Atty. Angel P. Purisima of 414 Shurdut Bldg., Intramuros, Manila, counsel for the accused, respectively, were posted

in said office on December 4, 1975. These notices were

rendered his decision on said case within the three-month

they [referring to the courts] venture to apply rules which

received by the respective addressees on December 8

period prescribed by the Constitution.

distinguish directory and mandatory statutes to the

and 9, 1975. 3

In Comia

Similar notices were sent to the Provincial Fiscal of Pasig

Appeals 6 and Balquidra v. Court of First Instance 7 this

The established rule is that “constitutional provisions are to

and to the Provincial Warden of Pasig, Rizal, who both

Court ruled that the rendition of the judgment in trial courts

be construed as mandatory, unless by express provision or

refers to the filing of the signed decision with the clerk of

by

On the date set for promulgation of the decision, counsel

court. There is no doubt that the constitutional provision

manifest.”

for accused moved for postponement, raising for the first

cited by petitioner refers to the rendition of judgment and

directory provision is often determined on grounds of

time the alleged loss of jurisdiction of the trial court for

not to the promulgation thereof. Thus, it is this date that

expediency, the reason being that less injury results to the

failure to decide the case within 90 days from submission

should be considered in determining whether or not

general public by disregarding than by enforcing the letter

thereof for decision. Acceding to counsel’s request that he

respondent judge had resolved the case within the allotted

of the law.” 11

be given time to consider the proper remedial measure to

period. Indeed, the date of promulgation of a decision

In Trapp

take, the respondent judge reset the promulgation of the

could not serve as the reckoning date because the same

interpretation of a statute containing a limitation of thirty

decision to January 19, 1976 at 8:30 A. M.

necessarily comes at a later date, considering that notices

[30] days within which a decree may be entered without

On January 19, 1976, counsel for petitioner moved anew

have to be sent to the accused as well as to the other

the consent of counsel, it was held that “the statutory

for the resetting of the promulgation of decision. Granting

parties involved, an event which is beyond the control of

provisions which may be thus departed from with impunity,

the

the judge. As pointed out in People v. Court of Appeals 8,

without affecting the validity of statutory proceedings, are

promulgation to January 26, 1976.

the promulgation of a judgment in the trial court does not

usually those which relate to the mode or time of doing

Meanwhile, on January 12, 1976, counsel for the accused

necessarily coincide with the date of its delivery by the

that which is essential to effect the aim and purpose of the

filed before Us the present petition. On January 16, 1976,

judge of the clerk of court.

Legislature or some incident of the essential act. ” Thus, in

this Court issued an Order temporarily restraining

Section 11 [1], Article X of the New Constitution provides in

said case, the statute under examination was construed

respondent judge from promulgating the decision in

full, to wit:

merely to be directory.

Criminal Case No. C-5910.

SEC. 11 [1]. Upon the effectivity of this Constitution, the

On this view, authorities are one in saying that:

Petitioner espouses the thesis that the three-month period

maximum period within which a case or matter shall be

Statutes requiring the rendition of judgment forthwith or

prescribed by Section 11[l] of Article X of the 1973

decided or resolved from the date of its submission, shall

immediately after the trial or verdict have been held by

Constitution, being a constitutional directive, is mandatory

be eighteen months for the Supreme court, and, unless

some courts to be merely directory so that non-compliance

in character and that non-observance thereof results in the

reduced by the Supreme Court, twelve months for all

with them does not invalidate the judgment, on the theory

loss of jurisdiction of the court over the unresolved case.

inferior collegiate courts, and three months for all other

that if the statute had intended such result it would clearly

We disagree. Undisputed is the fact that on November 28,

inferior courts.

have indicated it.” [American Tupe Founders Co. v.

1975, or eighty- five (85) days from September 4, 1975 the

To date, no authoritative interpretation of the above-quoted

Justice's Court, 133 Cal. 819, 65 Pac. 742; Heillen v.

date the case was deemed submitted for decision,

provision has been rendered by this Court. Thus, in

Phillips, 88 Cal. 557, 26 Pac. 366; Drake v. Bagley, 69 Mo.

respondent judge filed with the deputy clerk of court the

approaching this novel question, We now tread upon what

App. 39, State v. Davis, 194 Mo. 585, 5 Ann. Cas. 1000, 4

decision in Criminal Case No. 5910. He had thus veritably

Mr. Cooley characterizes as “very dangerous ground when

L.R.A. (N.S.) 1023, 92 S.W. 484; Wissman v. Meagher,

received them on December 2, 1975,

motion,

respondent

judge

4

rescheduled

the

v.

Nicolas, 5 Ago

v.

Court

of

provisions of a constitution.” 9

necessary 10

v.

implication,

a

different

intention

is

“The difference between a mandatory and a

McCormick, 12 a

case

calling

for

the

115 Mo. App. 82, 91 S.W. 448; Pohle v. Dickmann, 67 Mo.

causes by reason merely of having failed to render a

App. 381;Herwick v. Koken Barber Supply Co., 61 Mo.

decision within the alloted term. Such an absurd situation

App. 454].

could not have been intended by the framers of our

Such construction applies equally to the constitutional

fundamental law.

provision under consideration. In Mikell v. School Dis. of

As

Philadelphia, 13 it was ruled that “the legal distinction

his Construction and Interpretation of the Laws, 15 the

between directory and mandatory laws is applicable to

constitutional provision in question should be held merely

fundamental as it is to statutory laws.”

as directory. “Thus, where the contrary construction) would

To Our mind, the phraseology of the provision in question

lead to absurd, impossible or mischievous consequences,

indicates that it falls within the exception rather than the

it should not be followed.”

general rule. By the phrase “unless reduced by the

One last point, notwithstanding Our conclusion that courts

Supreme Court,” it is evident that the period prescribed

are not divested of their jurisdiction for failure to decide a

therein is subject to modification by this Court in

case within the ninety-day period, We here emphasize the

accordance with its prerogative under Section 5[5] of

rule, for the guidance of the judges manning our courts,

Article X of the New Constitution to “promulgate rules

that cases pending before theirsalas must be decided

concerning pleading, practice and procedure in all courts

within the aforementioned period. Failure to observe said

… ” And there can be no doubt that said provision, having

rule constitutes a ground for administrative sanction

been incorporated for reasons of expediency, relates

against the defaulting judge. In fact a certificate to this

merely to matters of procedure. Albermarle Oil & Gas Co.

effect is required before judges are allowed to draw their

v. Morris,

14

declares that constitutional provisions are

foreseen

by

ANTONIO Y. CO, petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents. G.R. Nos. 92202-03 July 30, 1991

Mr.

Henry

Campbell

Black

in SIXTO T. BALANQUIT, JR., petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents. Hechanova & Associates for petitioner Co. Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.

GUTIERREZ, JR., J.:p The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of Representatives Electoral Tribunal (HRET).

salaries.

directory, and not mandatory, where they refer to matters

WHEREFORE, the petition is hereby DISMISSED; and the

merely procedural.

Restraining Order dated January 16, 1976 issued by this

In practice, We have assumed a liberal stand with respect

Court is lifted. Since respondent Judge Fernando Cruz, Jr.

to this provision. This Court had at various times, upon

is already deceased, his successor is hereby ordered to

proper application and for meritorious reasons, allowed

decide Criminal Case No. C-5910 on the basis of the

judges of inferior courts additional time beyond the three-

record thereof within ninety [90] days from the time the

month period within which to decide cases submitted to

case is raffled to him.

them. The reason is that a departure from said provision

SO ORDERED.

would result in less injury to the general public than would

The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that determination, the HRET acted with grave abuse of discretion. On May 11, 1987, the congressional election for the second district of Northern Samar was held. Among the candidates who vied for the position of representative in the second legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr.

its strict application. To hold that non-compliance by the courts with the aforesaid provision would result in loss of jurisdiction, would make the courts, through which conflicts are resolved, the very instruments to foster unresolved

G.R. Nos. 92191-92 July 30, 1991

Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar.

The petitioners filed election protests against the private respondent premised on the following grounds: 1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and 2) Jose Ong, Jr. is not a resident of the second district of Northern Samar. The HRET in its decision dated November 6, 1989, found for the private respondent. A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied by the HRET in its resolution dated February 22, 1989. Hence, these petitions for certiorari. We treat the comments as answers and decide the issues raised in the petitions. ON THE ISSUE OF JURISDICTION The first question which arises refers to our jurisdiction. The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualificationsof their respective members. (See Article VI, Section 17, Constitution) The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word soleemphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz:

The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had originally remained in the legislature." (id., at p. 175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution. (p. 401) The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." (pp. 403-404) When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power? In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's

decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786) In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action. The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution) Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to

HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936])

Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an enduring relationship with his neighbors, resulting in his easy assimilation into the community.

In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919])

As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a natural bornFilipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to Catholic faith and practice.

It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition any less independent from the Court or its constitutional functions any less exclusive. The degree of judicial intervention should not be made to depend on how many legislative members of the HRET belong to this party or that party. The test remains the same-manifest grave abuse of discretion. In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court. ON THE ISSUE OF CITIZENSHIP The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land which he bought from the fruits of hard work. As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish colonial administration. The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong Te to Samar in the year 1915.

The couple bore eight children, one of whom is the private respondent who was born in 1948. The private respondent's father never emigrated from this country. He decided to put up a hardware store and shared and survived the vicissitudes of life in Samar. The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar an application for naturalization on February 15, 1954. On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen. On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance. Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of naturalization was issued to him. At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing his elementary education in the province of Samar. There is nothing in the records to differentiate him from other

Filipinos insofar as the customs and practices of the local populace were concerned. Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the ground. Undaunted by the catastrophe, the private respondent's family constructed another one in place of their ruined house. Again, there is no showing other than that Laoang was their abode and home. After completing his elementary education, the private respondent, in search for better education, went to Manila in order to acquire his secondary and college education. In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door apartment building, two doors of which were reserved for the family. The private respondent graduated from college, and thereafter took and passed the CPA Board Examinations. Since employment opportunities were better in Manila, the respondent looked for work here. He found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of natural born citizenship since it was precisely amending the article on this subject. The private respondent frequently went home to Laoang, Samar, where he grew up and spent his childhood days.

In 1984, the private respondent married a Filipina named Desiree Lim. For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections. The private respondent after being engaged for several years in the management of their family business decided to be of greater service to his province and ran for public office. Hence, when the opportunity came in 1987, he ran in the elections for representative in the second district of Northern Samar. Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress. Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than 7,000 votes. The pertinent portions of the Constitution found in Article IV read: SECTION 1, the following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of the Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth without having to

perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens. The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz: Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under the 1973 Constitution? Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution whether the election was done before or after January 17, 1973.

(Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied) xxx xxx xxx Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a natural-born citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected Philippine Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding Officer? Fr. Bernas: yes. xxx xxx xxx Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he said that the

decision was designed merely to accommodate former delegate Ernesto Ang and that the definition on natural-born has no retroactive effect. Now it seems that the Reverend Father Bernas is going against this intention by supporting the amendment? Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)

Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to approve that provision of section 4. Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as unfair that the Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a natural-born citizen. (Records of the Constitutional Commission, Vol. 1, p. 231)

xxx xxx xxx xxx xxx xxx Mr. Rodrigo: But this provision becomes very important because his election of Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to run for Congress. ..

Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation. Between 1935 and 1973 when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos.

However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino citizens. (Records of the Constitutional Commission, Vol. 1, p. 356) The foregoing significantly reveals the intent of the framers. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. It should be noted that in construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970]) A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580) In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]: To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically for the prescriptions therein contained, to paraphrase Justice Holmes, are not

mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal. . . . (p. 427) The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution. The Constitutional provision in question is, therefore curative in nature. The enactment was meant to correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which would have been nil at the time had it not been for the curative provisions. (See Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980]) There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children

born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. We have jurisprudence that defines "election" as both a formal and an informal process. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held: Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship (p. 52; emphasis supplied) The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for naturalization when the

child was still a small boy. He is a Roman Catholic. He has worked for a sensitive government agency. His profession requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. There is nothing in the records to show that he does not embrace Philippine customs and values, nothing to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland. The mass of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him better than any member of this Court will ever know him. They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino. The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons. An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21). We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that "when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in this country. Concededly, it was the law itself that had already elected

Philippine citizenship for protestee by declaring him as such." (Emphasis supplied) The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970]) To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case." The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to determine whether or not the HRET committed abuse of authority in the exercise of its powers. Moreover, the respondent traces his natural born citizenship through his mother, not through the citizenship of his father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen.

There is another reason why we cannot declare the HRET as having committed manifest grave abuse of discretion. The same issue of natural-born citizenship has already been decided by the Constitutional Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural born citizen by both bodies. Assuming that our opinion is different from that of the Constitutional Convention, the Batasang Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion. What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen? Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th day of April 1899 and then residing in said islands and their children born subsequent thereto were conferred the status of a Filipino citizen. Was the grandfather of the private respondent a Spanish subject? Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz: ARTICLE 17. The following are Spaniards: 1. Persons born in Spanish territory. 2. Children born of a Spanish father or mother, even though they were born out of Spain. 3. Foreigners who may have obtained naturalization papers.

4. Those without such papers, who may have acquired domicile in any town in the Monarchy. (Emphasis supplied) The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949]) As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention, September 7, 1972, p. 3) The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property. As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain. Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) Apriori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.

The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-born Filipino. The petitioners' sole ground in disputing this fact is that document presented to prove it were not in compliance with the best the evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29) The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12, 1989, pp. 11-24) The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be

found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918]) Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the protest against the private respondent, categorically stated that he saw the disputed documents presented during the hearing of the election protest against the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9) In his concurring opinion, Mr. Justice Sarmiento, a vicepresident of the Constitutional Convention, states that he was presiding officer of the plenary session which deliberated on the report on the election protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so. Nor did they demur to the contents of the documents presented by the private respondent. They merely relied on the procedural objections respecting the admissibility of the evidence presented. The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare their acts as committed with grave abuse of discretion. We have to keep clear the line between error and grave abuse.

ON THE ISSUE OF RESIDENCE The petitioners question the residence qualification of respondent Ong. The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, in so far as the regular

members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. (Records of the 1987 Constitutional Convention, Vol. 11, July 22, 1986. p. 87) xxx xxx xxx Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence. Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. 11, July 22, 1986, p. 110) The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile. The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said permanent

residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966]) The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even up to the present. The private respondent, in the proceedings before the HRET sufficiently established that after the fire that gutted their house in 1961, another one was constructed. Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8) The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case ofDe los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. (Emphasis supplied) To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in

order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412 [1965]) It has also been settled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954]) As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi. The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution. Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial diversity gives strength to our country.

whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born citizen of the Philippines and a resident of Laoang, Northern Samar. SO ORDERED. Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur. Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

Separate Opinions The issues raised before the tribunal were the following:

PADILLA, J., dissenting: I dissent.

However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and

Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among the candidates for the position of Representative or Congressman for the second district of Northern Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who obtained the next highest number of votes. Petitioners Co and Balanquit then filed separate election protests against private respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same issues and were thus considered and decided jointly by the tribunal.

Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none. To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were ethnically more Chinese than the private respondent. Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish.

In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who allegedly obtained the highest number of votes among the qualified candidates, the duly elected representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly elected representative of said district.

These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions for reconsideration.

1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof; and 2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation of Section 6, Article VI of the same Constitution, for a period of not less than one year immediately preceding the congressional elections of May 1987.

The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to continue in office as Member of the House of Representatives, Congress of the Philippines, representing the second legislative district of Northern Samar. The factual antecedents taken from the consolidated proceedings in the tribunal are the following: 1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now one of the municipalities comprising the province of Northern Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance appended to the 1987 Constitution). 2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang, Samar. 3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated according to the rites and practices of the Roman Catholic Church in the Municipality of Laoang (Exh. E). 4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E & I)

5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed his petition for naturalization with the Court of First Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law. 6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the application of Jose Ong Chuan for naturalization and declaring said petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities and obligations inherent to Filipino citizens. (Exh. E) 7. On May 15, 1957, the same Court issued an order: (1) declaring the decision of this Court of April 28, 1955 final and executory; (2) directing the clerk of court to issue the corresponding Certificate of Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen under Ms new christian name,

Jose Ong Chuan. (Exh. F) 8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to the Constitution and the Government of the Philippines as prescribed by Section 12 of Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization. (Exh. G) 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional Convention. 10. By protestee's own -testimony, it was established that he had attended grade school in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his college education. While later employed in Manila, protestee however went home to Laoang whenever he had the opportunity to do so, which invariably would be as frequent as twice to four times a year. 11. Protestee also showed that being a native and legal resident of Laoang, he registered as a voter therein and correspondingly voted in said municipality in the 1984 and 1986 elections. 12. Again in December 1986, during the general registration of all voters in the country, Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is

a resident of Laoang since birth. (Exh. 7) 1 Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed the present petitions. In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the power and authority to act as the sole judge of all contests relating to the qualifications of the Members of the House of Representatives. 2 On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and competence to review the questioned decision of the tribunal and to decide the present controversy. Article VIII, Section I of the 1987 Constitution provides that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly," that:

The judgment rendered by the (electoral) commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, "upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.) And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is dutybound to determine whether or not, in an actual controversy, there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The present controversy, it will be observed, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts an earnestly

perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4 Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private respondent is qualified to hold so important and high a public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. After a careful consideration of the issues and the evidence, it is my considered opinion that the respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned decision and resolution, for reasons to be presently stated. The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day of the election.

Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be deemed natural-born citizen, Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that: Section 1. The following are citizens of the Philippines: xxx xxx xxx (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions. The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen. Does private respondent fall within said definition? To the respondent tribunal, Protestee may even be declared a natural-born citizen of the Philippines under the first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on 15 May 1957, while still a minor of 9 years he already became a Filipino citizen by declaration of law. Since his mother was a natural-born

citizen at the time of her marriage, protestee had an inchoate right to Philippine citizenship at the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a Filipino citizen retroacted to the moment of his birth without his having to perform any act to acquire or perfect such Philippine citizenship. 6 I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7 Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen.

But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue of the operation of CA 473, petitioners however contend that the naturalization of private respondent's father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino citizen. Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's naturalization is barred in an electoral contest which does not even involve him (Ong Chuan). Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's naturalization must emanate from the Government and must be made in a proper/appropriate and direct proceeding for denaturalization directed against the proper party, who in such case is Ong Chuan, and also during his lifetime. A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or by the proper provincial fiscal. In Republic vs. Go Bon Lee, 10 this Court held that: An alien friend is offered under certain conditions the privilege of citizenship. He may accept the offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist and if they do

not he takes nothing by this paper grant. xxx xxx xxx Congress having limited this privilege to a specified class of persons, no other person is entitled to such privilege, nor to a certificate purporting to grant it, and any such certificate issued to a person not so entitled to receive it must be treated as a mere nullity, which confers no legal rights as against the government, from which it has been obtained without warrant of law. "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 11 Considering the legal implications of the allegation made by the petitioners that the naturalization of private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said naturalization proceedings. This course of action becomes all the more inevitable and justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. 12 It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void naturalization of his father, would constitute or at least sanction a continuing offense against the Constitution. The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the Constitution

and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate of Naturalization and for the applicant to take the oath of allegiance. However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. 13 In Cua Sun Ke vs. Republic, 14 this Court held that: Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381). It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private respondent's father) was null and void. It follows that the private respondent did not acquire any legal rights from the void naturalization of his father and thus he cannot himself be considered a Filipino citizen, more so, a natural-born Filipino citizen. But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable, the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a natural-born Filipino citizen.

Let us now look into the question of whether or not private respondent acquired the status of a natural-born Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen. This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the age of majority. The right or privilege of election is available, however, only to those born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January 1973. The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who elect Philippine citizenship — all in its strained effort, according to petitioners, to support private respondent's qualification to be a Member of the House of Representatives. 15 Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987 Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship) after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen. 16 The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found reason to refer to the interpellations made during the 1986 Constitutional Commission. It said: That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987 Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than persuasively established by the extensive interpellations and debate on the issue

as borne by the official records of the 1986 Constitutional Commission. 17 Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding the meaning of the constitutional provisions in question. I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and even nebulous constitutional provisions. Thus — The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the constitution were guided mainly by the explanation offered by the framers. 18 The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be considered natural-born Filipino citizens. During the free-wheeling discussions on citizenship, Commissioner Treñas specifically asked Commissioner Bernas regarding the provisions in question, thus:

MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a naturalborn Filipino citizen as provided in Section 4 of the 1973 Constitution, by adding that persons who have elected Philippine citizenship under the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding Officer? FR BERNAS: Yes. MR. TRENAS: And does the Commissioner think that tills addition to Section 4 of the 1973 Constitution would be contrary to the spirit of that section? FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But

whether it is contrary to the spirit is something that has been debated before and is being debated even now. We will recall that during the 1971 Constitutional Convention, the status of naturalborn citizenship of one of the delegates, Mr. Ang, was challenged precisely because he was a citizen by election. Finally, the 1971 Constitutional Convention considered him a natural-born citizen, one of the requirements to be a Member of the 1971 Constitutional Convention. The reason behind that decision was that a person under his circumstances already had the inchoate right to be a citizen by the fact that the mother was a Filipino. And as a matter of fact, the 1971 Constitutional Convention formalized that recognition by

adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose of this proviso is simply to perhaps remedy whatever injustice there may be so that these people born before January 17, 1973 who are not naturalized and people who are not natural born but who are in the same situation as we are considered natural-born citizens. So, the intention of the Committee in proposing this is to equalize their status. 19 When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to Commissioner Azcuna thus: MR. AZCUNA: With respect to the proviso in Section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under

the 1935 Constitution? FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution, whether the election was done before or after 17 January 1973. 20 And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus: MR. RODRIGO: The purpose of that proviso is to remedy an inequitable situation. Between 1935 and 1973, when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and, if they do elect, they

become Filipino citizens, yet, but not natural-born Filipino citizens. The 1973 Constitution equalized the status of those born of Filipino mothers and those born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took effect, those born of Filipino mothers but of alien fathers are natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born Filipino citizens. If the 1973 Constitution equalized the status of a child born of a Filipino mother and that born of a Filipino father, why do we not give a chance to a child born before January 17, 1973, if and when he elects Philippine citizenship, to be in the same status as one born of a Filipino father — namely, natural-born citizen. Another thing I stated is equalizing the status of a father and a mother vis-avis the child. I would like to state also that we showed equalize the status of a child born of a Filipino mother the day before January 17, 1973 and a child born also of a Filipino mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is not a natural-born Filipino citizen. However, the other child who luckily was born 24 hours later — maybe because of parto laborioso — is a natural-born Filipino citizen. 21

It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, 22 and to foster equality among them. Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother (with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order to have the status of a naturalborn Filipino citizen under the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling of the respondent tribunal. The respondent tribunal, on this issue, ruled as follows: Where a person born to a Filipino mother and an alien father had exercised the right of suffrage when he came of age, the same constitutes a positive act of election of Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering as a voter, participating in elections and campaigning for certain candidates were held by the Supreme Court as sufficient to show his preference for Philippine citizenship. Accordingly, even without complying with the formal requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23

I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect Philippine citizenship must be effected expressly not impliedly. The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. To quote Mr. Justice Fernandez in Mallare: Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26 Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in an obiter dictum.

The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution. Based on all the foregoing considerations and premises, I am constrained to state that private respondent is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member of the House of Representatives. At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the Constitution requires that a Member of the House of Representatives must be both a natural-born Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected. The next question that comes up is whether or not either of the petitioners can replace private respondent as the Representative of the second legislative district of Northern Samar in the House of Representatives. I agree with respondent tribunal that neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district

of Northern Samar. The ruling of this Court in Ramon L.Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. 29 The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30 Sound policy dictates that public elective offices are filled by those who have the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676). As early as 1912, this Court has already declared that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found ineligible for the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) — Again, the effect of a decision that

a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. . . . If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. . . . 31 The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino citizen, in relation to the present case.

Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same father and mother. Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in reference to this submission, said: Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship based on an entirely different set of circumstances, apart from the indisputable fact that the matters attempted to be brought in issue in connection therewith are too far removed in point of time and relevance from the decisive events relied upon by the Tribunal, we view these two issues as being already inconsequential. 33 The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship by naturalization of private respondent's father (Ong Chuan) and on the alleged election of Philippine citizenship by private respondent. Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the dispositive portion of which stated: It appearing that protestee's grandfather was himself a Filipino

citizen under the provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth, the conclusion is inescapable that protestee himself is a natural-born citizen, and is therefore qualified to hold the office of delegate to the Constitutional Convention. 34

of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution.

On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election Protests and Credentials. 35

But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted before the electoral tribunal and, therefore, also before this Court, does not support the allegations made by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private respondent in the present controversy. This leads us to an interesting inquiry and finding.

It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because — a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the 1935Constitution; the present case, on the other hand involves the 1987 Constitution: b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the Philippines; the 1987 Constitution contains a precise and specific definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not qualify under such definition in the 1987 Constitution; c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of apolitical body, not a court of law. And, even if we have to take such a decision as a decision of aquasijudicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character

The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" — and this appears crucial and central to its decision — that Emil L. Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became natural-born Filipinos. The 1971 Constitutional Convention said: Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899 and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899 as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4, Philippine Bill of 1902). 36

The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong, previously discussed. It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization. Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to

look into the question because the finding that Ong Te had become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee vs. Commissioners of Immigration: 37 . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding Court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by private respondent that the resolution of the 1971 Constitutional Convention in the Emil L. Ong case was elevated to this Court on a question involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that, according to private respondent, this Court allowed the use of the Committee Report to the 1971 Constitutional Convention. To fully appreciate the implications of such contention, it would help to look into the circumstances of the case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that Ong is not a naturalborn citizen. Ong filed a motion to dismiss the petition on the ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the COMELEC, docketed as G.R. No. 67201.

In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)

the merits either by the Court or by the COMELEC and merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections.

This Court, in explaining its action, held that:

It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or further proceeding in regard to the same question and that, consequently, there is no vested right of Emil L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution but the 1987 Constitution whose provisions were never considered in all such proceedings because the 1987 Constitution was still inexistent.

Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction, and considering that at the hearing this morning, it was brought out that the 1971 Constitutional Convention, at its session of November 28, 1972, after considering the Report of its Committee on Election Protests and Credentials, found that the protest questioning the citizenship of the protestee (the petitioner herein) was groundless and dismissed Election Protests Nos. EP 07 and EP 08 filed against said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well as of the said Committee's Report having been duly admitted in evidence without objection and bears out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to dismiss the same.This is without prejudice to any appropriate action that private respondent may wish to take after the elections. (emphasis supplied) It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a hearing on

A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative (Congressman) to the House of Representatives for the second district of Northern Samar, would have had to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental consideration in cases of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they assumed and believed that he was fully eligible and qualified for the office because he is a naturalborn Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of Representatives should be "natural-born citizens of the Philippines". The voting majority of the present Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in effect, says, "even aliens will do as well."

WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of Representatives, Congress of the Philippines. Narvasa, J., Paras, J. and Regalado, J., dissenting. SARMIENTO, J., concurring: I concur with the majority. (1) I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1 is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better.

In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 4 It is not to review facts. "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5 I find none of that here. As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion because the majority has begged to differ. It does not form part of the duty of the Court to remedy all imagined wrongs committed by the Government. The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and consequently, is possessed of the qualifications to be a member of the House. As the sole judge, precisely, of this question, the Court can not be more popish than the pope.

complied with the requirements on Filipinization by existing laws for which his successors need not have elected Filipino citizenship. I quote: xxx xxx xxx There is merit in protestee's claim. There can hardly be any doubt that Ong Te protestees's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899, and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899, as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects who shall have elected to preserve their allegiance to the Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only Spanish subjects who were natives of Peninsular Spain had the privilege of preserving their Spanish nationality. 7 xxx xxx xxx

(2) xxx xxx xxx I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother. According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having

As earlier noted, protestee's grandfather established residence in the Philippines in 1895, as shown by the Registro Central de Chinos. He was also issued a certificate of registration. He established a business here, and later acquired real property. Although he went back to

China for brief visits, he invariably came back. He even brought his eldest son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong Chuan was admitted into the country because, as duly noted on his landing certificate, his father, Ong Te had been duly enrolled under CR 16009-36755 — i.e., as a permanent resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he left his son, Ong Chuan, who was then still a minor, in the Philippines — obviously because he had long considered the Philippines his home. The domicile he established in 1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile once acquired is not lost until a new one is gained. The only conclusion then can thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 — and was, consequently, a Spanish subject, he qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 8 It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that he was, all along, a Chinese citizen, but as the Report held: Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan (protestee's father), appear to have been registered as Chinese citizens even long after the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent of having to seek admission as a Pilipino citizen through naturalization proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter of law, rather than of

personal belief. It is what the law provides, and not what one thinks his status to be, which determines whether one is a citizen of a particular state or not. Mere mistake or misapprehension as to one's citizenship, it has been held, is not a sufficient cause or reason for forfeiture of Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9 It is to be noted that the Report was unanimously approved by the Committee, and on November 28, 1972, approved without any objection by the Convention in plenary session. 10 I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from experience, because when the Convention approved the Report in question, I was one of its vice-presidents and the presiding officer. It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use of the Committee Report. Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a settled matter. Let it rest. It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce for the gander. I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of 267 delegates, indeed, also of this Court.

Separate Opinions PADILLA, J., dissenting: I dissent. These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions for reconsideration. In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who allegedly obtained the highest number of votes among the qualified candidates, the duly elected representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly elected representative of said district. Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among the candidates for the position of Representative or Congressman for the second district of Northern Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who obtained the next highest number of votes. Petitioners Co and Balanquit then filed separate election protests against private respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same issues and were thus considered and decided jointly by the tribunal.

The issues raised before the tribunal were the following: 1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof; and 2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation of Section 6, Article VI of the same Constitution, for a period of not less than one year immediately preceding the congressional elections of May 1987. The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to continue in office as Member of the House of Representatives, Congress of the Philippines, representing the second legislative district of Northern Samar. The factual antecedents taken from the consolidated proceedings in the tribunal are the following: 1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now one of the municipalities comprising the province of Northern Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance appended to the 1987 Constitution). 2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter,

he took up residence in Laoang, Samar. 3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated according to the rites and practices of the Roman Catholic Church in the Municipality of Laoang (Exh. E). 4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E & I) 5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed his petition for naturalization with the Court of First Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law. 6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the application of Jose Ong Chuan for naturalization and declaring said petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities and obligations inherent to Filipino citizens. (Exh. E) 7. On May 15, 1957, the same Court issued an order: (1) declaring the decision of this Court of April 28, 1955 final and executory;

(2) directing the clerk of court to issue the corresponding Certificate of Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen under Ms new christian name, Jose Ong Chuan. (Exh. F) 8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to the Constitution and the Government of the Philippines as prescribed by Section 12 of Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization. (Exh. G) 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional Convention. 10. By protestee's own -testimony, it was established that he had attended grade school in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his college education. While later employed in Manila, protestee however went home to Laoang whenever he had the opportunity to do so, which invariably

would be as frequent as twice to four times a year. 11. Protestee also showed that being a native and legal resident of Laoang, he registered as a voter therein and correspondingly voted in said municipality in the 1984 and 1986 elections. 12. Again in December 1986, during the general registration of all voters in the country, Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is a resident of Laoang since birth. (Exh. 7) 1 Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed the present petitions. In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the power and authority to act as the sole judge of all contests relating to the qualifications of the Members of the House of Representatives. 2 On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and competence to review the questioned decision of the tribunal and to decide the present controversy. Article VIII, Section I of the 1987 Constitution provides that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether

or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly," that: The judgment rendered by the (electoral) commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, "upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.) And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is dutybound to determine whether or not, in an actual controversy, there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The present controversy, it will be observed, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have

been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts an earnestly perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4 Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private respondent is qualified to hold so important and high a

public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. After a careful consideration of the issues and the evidence, it is my considered opinion that the respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned decision and resolution, for reasons to be presently stated. The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day of the election. Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be deemed natural-born citizen, Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that: Section 1. The following are citizens of the Philippines: xxx xxx xxx (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority.

The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions. The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen. Does private respondent fall within said definition? To the respondent tribunal, Protestee may even be declared a natural-born citizen of the Philippines under the first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on 15 May 1957, while still a minor of 9 years he already became a Filipino citizen by declaration of law. Since his mother was a natural-born citizen at the time of her marriage, protestee had an inchoate right to Philippine citizenship at the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a Filipino citizen retroacted to the moment of his birth without his having to perform any act to acquire or perfect such Philippine citizenship. 6 I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7

Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen. But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue of the operation of CA 473, petitioners however contend that the naturalization of private respondent's father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino citizen. Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's naturalization is barred in an electoral contest which does not even involve him (Ong Chuan). Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's naturalization must emanate from the Government and must be made in a proper/appropriate and direct proceeding for denaturalization directed against the proper party, who in such case is Ong Chuan, and also during his lifetime. A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or by the proper provincial fiscal.

In Republic vs. Go Bon Lee, 10 this Court held that: An alien friend is offered under certain conditions the privilege of citizenship. He may accept the offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist and if they do not he takes nothing by this paper grant. xxx xxx xxx Congress having limited this privilege to a specified class of persons, no other person is entitled to such privilege, nor to a certificate purporting to grant it, and any such certificate issued to a person not so entitled to receive it must be treated as a mere nullity, which confers no legal rights as against the government, from which it has been obtained without warrant of law. "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 11 Considering the legal implications of the allegation made by the petitioners that the naturalization of private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said naturalization proceedings. This course of action becomes all the more

inevitable and justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. 12 It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void naturalization of his father, would constitute or at least sanction a continuing offense against the Constitution. The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the Constitution and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate of Naturalization and for the applicant to take the oath of allegiance. However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. 13 In Cua Sun Ke vs. Republic,

14

this Court held that:

Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381).

It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private respondent's father) was null and void. It follows that the private respondent did not acquire any legal rights from the void naturalization of his father and thus he cannot himself be considered a Filipino citizen, more so, a natural-born Filipino citizen. But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable, the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a natural-born Filipino citizen. Let us now look into the question of whether or not private respondent acquired the status of a natural-born Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen. This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the age of majority. The right or privilege of election is available, however, only to those born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January 1973. The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who elect Philippine citizenship — all in its strained effort, according to petitioners, to support private respondent's qualification to be a Member of the House of Representatives. 15 Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987 Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship) after the effectivity of the 1987

Constitution are entitled to the status of natural-born Filipino citizen. 16 The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found reason to refer to the interpellations made during the 1986 Constitutional Commission. It said: That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987 Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than persuasively established by the extensive interpellations and debate on the issue as borne by the official records of the 1986 Constitutional Commission. 17 Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding the meaning of the constitutional provisions in question. I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and even nebulous constitutional provisions. Thus — The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely

assumed that the people in ratifying the constitution were guided mainly by the explanation offered by the framers. 18 The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be considered natural-born Filipino citizens. During the free-wheeling discussions on citizenship, Commissioner Treñas specifically asked Commissioner Bernas regarding the provisions in question, thus: MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a naturalborn Filipino citizen as provided in Section 4 of the 1973 Constitution, by adding that persons who have elected Philippine citizenship under the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding Officer?

FR BERNAS: Yes. MR. TRENAS: And does the Commissioner think that tills addition to Section 4 of the 1973 Constitution would be contrary to the spirit of that section? FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But whether it is contrary to the spirit is something that has been debated before and is being debated even now. We will recall that during the 1971 Constitutional Convention, the status of naturalborn citizenship of one of the delegates, Mr. Ang, was challenged precisely because he was a citizen by election. Finally, the 1971 Constitutional Convention considered him a natural-born citizen, one of the requirements to be a Member of

the 1971 Constitutional Convention. The reason behind that decision was that a person under his circumstances already had the inchoate right to be a citizen by the fact that the mother was a Filipino. And as a matter of fact, the 1971 Constitutional Convention formalized that recognition by adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose of this proviso is simply to perhaps remedy whatever injustice there may be so that these people born before January 17, 1973 who are not naturalized and people who are not natural born but who are in the same situation as we are considered natural-born citizens. So, the intention of the Committee in proposing this is to equalize their status. 19

When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to Commissioner Azcuna thus: MR. AZCUNA: With respect to the proviso in Section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under the 1935 Constitution? FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution, whether the election was done before or after 17 January 1973. 20 And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus: MR. RODRIGO: The purpose of that proviso is to remedy an inequitable situation. Between 1935

and 1973, when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and, if they do elect, they become Filipino citizens, yet, but not natural-born Filipino citizens. The 1973 Constitution equalized the status of those born of Filipino mothers and those born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took effect, those born of Filipino mothers but of alien fathers are natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born Filipino citizens. If the 1973 Constitution equalized the status of a child born of a Filipino mother and that born of a Filipino father, why do we not give a chance to a child born before January 17, 1973, if and when he elects Philippine citizenship, to be in the same status as one born of a Filipino father — namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a mother vis-avis the child. I would like to state also that we showed equalize the status of a child born of a Filipino mother the day before January 17, 1973 and a child born also of a Filipino mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is not a natural-born Filipino citizen. However, the other child who luckily was born 24 hours later — maybe because of parto laborioso — is a natural-born Filipino citizen. 21 It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, 22 and to foster equality among them. Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother (with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order to have the status of a naturalborn Filipino citizen under the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling of the respondent tribunal.

The respondent tribunal, on this issue, ruled as follows: Where a person born to a Filipino mother and an alien father had exercised the right of suffrage when he came of age, the same constitutes a positive act of election of Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering as a voter, participating in elections and campaigning for certain candidates were held by the Supreme Court as sufficient to show his preference for Philippine citizenship. Accordingly, even without complying with the formal requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23 I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect Philippine citizenship must be effected expressly not impliedly. The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. To quote Mr. Justice Fernandez in Mallare:

Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26 Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in an obiter dictum. The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution. Based on all the foregoing considerations and premises, I am constrained to state that private respondent is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to

Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member of the House of Representatives. At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the Constitution requires that a Member of the House of Representatives must be both a natural-born Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected. The next question that comes up is whether or not either of the petitioners can replace private respondent as the Representative of the second legislative district of Northern Samar in the House of Representatives. I agree with respondent tribunal that neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district of Northern Samar. The ruling of this Court in Ramon L.Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. 29 The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30 Sound policy dictates that public elective offices are filled by those who have the highest number of votes cast

in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676). As early as 1912, this Court has already declared that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found ineligible for the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) — Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. . . . If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other

case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. . . . 31 The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino citizen, in relation to the present case. Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same father and mother. Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in reference to this submission, said: Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship based on an entirely different set of circumstances, apart from the indisputable fact that the matters attempted to be brought in issue in connection therewith are too far removed in point of time and relevance from the decisive events relied upon by the Tribunal, we view

these two issues as being already inconsequential. 33 The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship by naturalization of private respondent's father (Ong Chuan) and on the alleged election of Philippine citizenship by private respondent. Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the dispositive portion of which stated: It appearing that protestee's grandfather was himself a Filipino citizen under the provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth, the conclusion is inescapable that protestee himself is a natural-born citizen, and is therefore qualified to hold the office of delegate to the Constitutional Convention. 34 On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election Protests and Credentials. 35 It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because — a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the 1935Constitution; the

present case, on the other hand involves the 1987 Constitution: b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the Philippines; the 1987 Constitution contains a precise and specific definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not qualify under such definition in the 1987 Constitution; c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of apolitical body, not a court of law. And, even if we have to take such a decision as a decision of aquasijudicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution. But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted before the electoral tribunal and, therefore, also before this Court, does not support the allegations made by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private respondent in the present controversy. This leads us to an interesting inquiry and finding. The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" — and this appears crucial and central to its decision — that Emil L.

Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became natural-born Filipinos. The 1971 Constitutional Convention said: Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899 and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899 as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4, Philippine Bill of 1902). 36 The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close

to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong, previously discussed. It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization. Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to look into the question because the finding that Ong Te had become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee vs. Commissioners of Immigration: 37 . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding Court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by private respondent that the resolution of the 1971 Constitutional Convention in the Emil L. Ong case

was elevated to this Court on a question involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that, according to private respondent, this Court allowed the use of the Committee Report to the 1971 Constitutional Convention. To fully appreciate the implications of such contention, it would help to look into the circumstances of the case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that Ong is not a naturalborn citizen. Ong filed a motion to dismiss the petition on the ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the COMELEC, docketed as G.R. No. 67201. In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335) This Court, in explaining its action, held that: Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction, and considering that at the hearing this morning, it was brought out that the 1971 Constitutional Convention, at its session of November 28, 1972, after considering the Report of its Committee on Election Protests and Credentials, found that the protest questioning the citizenship of the protestee (the petitioner herein) was groundless and dismissed Election

Protests Nos. EP 07 and EP 08 filed against said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well as of the said Committee's Report having been duly admitted in evidence without objection and bears out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to dismiss the same.This is without prejudice to any appropriate action that private respondent may wish to take after the elections. (emphasis supplied) It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a hearing on the merits either by the Court or by the COMELEC and merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections. It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or further proceeding in regard to the same question and that, consequently, there is no vested right of Emil L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution but the 1987 Constitution whose provisions were never considered in all such proceedings because the 1987 Constitution was still inexistent. A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative

(Congressman) to the House of Representatives for the second district of Northern Samar, would have had to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental consideration in cases of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they assumed and believed that he was fully eligible and qualified for the office because he is a naturalborn Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of Representatives should be "natural-born citizens of the Philippines". The voting majority of the present Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in effect, says, "even aliens will do as well." WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of Representatives, Congress of the Philippines. Narvasa, J., Paras, J. and Regalado, J., dissenting. SARMIENTO, J., concurring: I concur with the majority. (1) I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1 is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better. In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 4 It is not to review facts. "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5 I find none of that here.

As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion because the majority has begged to differ. It does not form part of the duty of the Court to remedy all imagined wrongs committed by the Government. The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and consequently, is possessed of the qualifications to be a member of the House. As the sole judge, precisely, of this question, the Court can not be more popish than the pope. (2) I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother. According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having complied with the requirements on Filipinization by existing laws for which his successors need not have elected Filipino citizenship. I quote: xxx xxx xxx There is merit in protestee's claim. There can hardly be any doubt that Ong Te protestees's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899, and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899, as well as their children born subsequent thereto, "shall be deemed

and held to be citizens of the Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects who shall have elected to preserve their allegiance to the Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only Spanish subjects who were natives of Peninsular Spain had the privilege of preserving their Spanish nationality. 7 xxx xxx xxx xxx xxx xxx As earlier noted, protestee's grandfather established residence in the Philippines in 1895, as shown by the Registro Central de Chinos. He was also issued a certificate of registration. He established a business here, and later acquired real property. Although he went back to China for brief visits, he invariably came back. He even brought his eldest son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong Chuan was admitted into the country because, as duly noted on his landing certificate, his father, Ong Te had been duly enrolled under CR 16009-36755 — i.e., as a permanent resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he left his son, Ong Chuan, who was then still a minor, in the Philippines — obviously because he had long considered the Philippines his home. The domicile he established in 1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile once acquired is not lost until a new one is gained. The only conclusion then can

thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 — and was, consequently, a Spanish subject, he qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 8 It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that he was, all along, a Chinese citizen, but as the Report held: Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan (protestee's father), appear to have been registered as Chinese citizens even long after the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent of having to seek admission as a Pilipino citizen through naturalization proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter of law, rather than of personal belief. It is what the law provides, and not what one thinks his status to be, which determines whether one is a citizen of a particular state or not. Mere mistake or misapprehension as to one's citizenship, it has been held, is not a sufficient cause or reason for forfeiture of Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9 It is to be noted that the Report was unanimously approved by the Committee, and on November 28, 1972, approved without any objection by the Convention in plenary session. 10

I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from experience, because when the Convention approved the Report in question, I was one of its vice-presidents and the presiding officer. It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use of the Committee Report. Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a settled matter. Let it rest. It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce for the gander. I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of 267 delegates, indeed, also of this Court G.R. Nos. 92191-92 July 30, 1991 ANTONIO Y. CO, petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents. G.R. Nos. 92202-03 July 30, 1991 SIXTO T. BALANQUIT, JR., petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR., respondents. Hechanova & Associates for petitioner Co. Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.

We treat the comments as answers and decide the issues raised in the petitions. GUTIERREZ, JR., J.:p ON THE ISSUE OF JURISDICTION The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of Representatives Electoral Tribunal (HRET). The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that determination, the HRET acted with grave abuse of discretion. On May 11, 1987, the congressional election for the second district of Northern Samar was held. Among the candidates who vied for the position of representative in the second legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar. The petitioners filed election protests against the private respondent premised on the following grounds: 1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and 2) Jose Ong, Jr. is not a resident of the second district of Northern Samar. The HRET in its decision dated November 6, 1989, found for the private respondent. A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied by the HRET in its resolution dated February 22, 1989. Hence, these petitions for certiorari.

The first question which arises refers to our jurisdiction. The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualificationsof their respective members. (See Article VI, Section 17, Constitution) The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word soleemphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz: The use of the word "sole" emphasizes the exclusive character of the jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral Commission under the 1935 Constitution has been described as "intended to be as complete and unimpaired as if it had originally remained in the legislature." (id., at p. 175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as "full, clear and complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission, (Lachica v.

Yap, 25 SCRA 140 [1968]) The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution. (p. 401) The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." (pp. 403-404) When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power? In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786) In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government, It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action.

The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution) Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936]) In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition any less independent from the Court or its constitutional functions any less exclusive. The degree of judicial intervention should not be made to depend on how many legislative members of the HRET belong to this party or that party. The test remains the same-manifest grave abuse of discretion.

In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court. ON THE ISSUE OF CITIZENSHIP

his legal status and in an unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar an application for naturalization on February 15, 1954. On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen.

The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land which he bought from the fruits of hard work.

On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance.

As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish colonial administration.

Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of naturalization was issued to him.

The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong Te to Samar in the year 1915.

At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing his elementary education in the province of Samar. There is nothing in the records to differentiate him from other Filipinos insofar as the customs and practices of the local populace were concerned.

Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an enduring relationship with his neighbors, resulting in his easy assimilation into the community. As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a natural bornFilipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to Catholic faith and practice. The couple bore eight children, one of whom is the private respondent who was born in 1948. The private respondent's father never emigrated from this country. He decided to put up a hardware store and shared and survived the vicissitudes of life in Samar. The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of

Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the ground. Undaunted by the catastrophe, the private respondent's family constructed another one in place of their ruined house. Again, there is no showing other than that Laoang was their abode and home. After completing his elementary education, the private respondent, in search for better education, went to Manila in order to acquire his secondary and college education. In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door apartment building, two doors of which were reserved for the family. The private respondent graduated from college, and thereafter took and passed the CPA Board Examinations.

Since employment opportunities were better in Manila, the respondent looked for work here. He found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of natural born citizenship since it was precisely amending the article on this subject. The private respondent frequently went home to Laoang, Samar, where he grew up and spent his childhood days. In 1984, the private respondent married a Filipina named Desiree Lim. For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections. The private respondent after being engaged for several years in the management of their family business decided to be of greater service to his province and ran for public office. Hence, when the opportunity came in 1987, he ran in the elections for representative in the second district of Northern Samar. Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress. Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than 7,000 votes. The pertinent portions of the Constitution found in Article IV read: SECTION 1, the following are citizens of the Philippines:

1. Those who are citizens of the Philippines at the time of the adoption of the Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens. The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz: Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973

Constitution or would it also cover those who elected it under the 1973 Constitution? Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution whether the election was done before or after January 17, 1973. (Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied) xxx xxx xxx Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a natural-born citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected Philippine

Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding Officer? Fr. Bernas: yes. xxx xxx xxx Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he said that the decision was designed merely to accommodate former delegate Ernesto Ang and that the definition on natural-born has no retroactive effect. Now it seems that the Reverend Father Bernas is going against this intention by supporting the amendment? Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)

xxx xxx xxx Mr. Rodrigo: But this provision becomes very important because his election of Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to run for Congress. .. Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to approve that provision of section 4. Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as unfair that the Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a natural-born citizen. (Records of the Constitutional Commission, Vol. 1, p. 231)

xxx xxx xxx Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation. Between 1935 and 1973 when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino citizens. (Records of the Constitutional Commission, Vol. 1, p. 356) The foregoing significantly reveals the intent of the framers. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. It should be noted that in construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter

would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970])

Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution.

A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)

The Constitutional provision in question is, therefore curative in nature. The enactment was meant to correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which would have been nil at the time had it not been for the curative provisions. (See Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980])

In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]: To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal. . . . (p. 427) The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973

There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. We have jurisprudence that defines "election" as both a formal and an informal process. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held:

Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship (p. 52; emphasis supplied) The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive government agency. His profession requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. There is nothing in the records to show that he does not embrace Philippine customs and values, nothing to indicate any tinge of alien-ness no acts to show that this country is not his natural homeland. The mass of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should know him better than any member of this Court will ever know him. They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino. The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons.

An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21). We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that "when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship for protestee by declaring him as such." (Emphasis supplied) The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970]) To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not use beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case."

The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to determine whether or not the HRET committed abuse of authority in the exercise of its powers. Moreover, the respondent traces his natural born citizenship through his mother, not through the citizenship of his father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen. There is another reason why we cannot declare the HRET as having committed manifest grave abuse of discretion. The same issue of natural-born citizenship has already been decided by the Constitutional Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitution drafted by that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural born citizen by both bodies. Assuming that our opinion is different from that of the Constitutional Convention, the Batasang Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion. What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen?

Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz: ARTICLE 17. The following are Spaniards: 1. Persons born in Spanish territory. 2. Children born of a Spanish father or mother, even though they were born out of Spain. 3. Foreigners who may have obtained naturalization papers. 4. Those without such papers, who may have acquired domicile in any town in the Monarchy. (Emphasis supplied) The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949]) As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention, September 7, 1972, p. 3)

Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th day of April 1899 and then residing in said islands and their children born subsequent thereto were conferred the status of a Filipino citizen.

The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property.

Was the grandfather of the private respondent a Spanish subject?

As concluded by the Constitutional Convention, Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain.

Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) Apriori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902. The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-born Filipino. The petitioners' sole ground in disputing this fact is that document presented to prove it were not in compliance with the best the evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P Law Center, in their respective testimonies given before the

HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29) The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12, 1989, pp. 11-24) The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918]) Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the protest against the private respondent, categorically stated that he saw the disputed documents presented during the hearing of the election protest against the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9) In his concurring opinion, Mr. Justice Sarmiento, a vicepresident of the Constitutional Convention, states that he was presiding officer of the plenary session which deliberated on the report on the election protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented any one of the long list of delegates to refute Mr. Ong's having been declared a natural-born citizen. They did not do so. Nor did they demur to the contents of the documents presented by the private

respondent. They merely relied on the procedural objections respecting the admissibility of the evidence presented. The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that body. The HRET by explicit mandate of the Constitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare their acts as committed with grave abuse of discretion. We have to keep clear the line between error and grave abuse. ON THE ISSUE OF RESIDENCE The petitioners question the residence qualification of respondent Ong. The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day

of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, in so far as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. (Records of the 1987 Constitutional Convention, Vol. 11, July 22, 1986. p. 87) xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence. Mr. De los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept

that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. 11, July 22, 1986, p. 110) The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile. The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966]) The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even up to the present. The private respondent, in the proceedings before the HRET sufficiently established that after the fire that gutted their house in 1961, another one was constructed. Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8) The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the demise of

his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co- heir), notwithstanding the fact that these were still in the names of his parents.

late Chief Justice Claudio Teehankee was part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were ethnically more Chinese than the private respondent.

Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case ofDe los Reyes v. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. (Emphasis supplied)

Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish.

To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412 [1965]) It has also been settled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954]) As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession, There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi. The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution. Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial diversity gives strength to our country. Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none. To mention a few, the great Jose Rizal was part Chinese, the

However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the House of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born citizen of the Philippines and a resident of Laoang, Northern Samar. SO ORDERED. Bidin, Griño-Aquino, Medialdea and Davide, Jr., JJ., concur. Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

Separate Opinions

PADILLA, J., dissenting: I dissent. These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions for reconsideration. In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who allegedly obtained the highest number of votes among the qualified candidates, the duly elected representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly elected representative of said district. Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among the candidates for the position of Representative or Congressman for the second district of Northern Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who obtained the next highest number of votes. Petitioners Co and Balanquit then filed separate election protests against private respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively.

Both protests raised almost the same issues and were thus considered and decided jointly by the tribunal. The issues raised before the tribunal were the following: 1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof; and 2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation of Section 6, Article VI of the same Constitution, for a period of not less than one year immediately preceding the congressional elections of May 1987. The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to continue in office as Member of the House of Representatives, Congress of the Philippines, representing the second legislative district of Northern Samar. The factual antecedents taken from the consolidated proceedings in the tribunal are the following: 1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now one of the municipalities comprising the province of Northern Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance appended to the 1987 Constitution).

2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang, Samar. 3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated according to the rites and practices of the Roman Catholic Church in the Municipality of Laoang (Exh. E). 4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E & I) 5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed his petition for naturalization with the Court of First Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law. 6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the application of Jose Ong Chuan for naturalization and declaring said petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities and obligations inherent to Filipino citizens. (Exh. E) 7. On May 15, 1957, the same Court issued an order: (1) declaring the decision of this Court of April 28,

1955 final and executory; (2) directing the clerk of court to issue the corresponding Certificate of Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen under Ms new christian name, Jose Ong Chuan. (Exh. F) 8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to the Constitution and the Government of the Philippines as prescribed by Section 12 of Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization. (Exh. G) 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional Convention. 10. By protestee's own -testimony, it was established that he had attended grade school in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his college

education. While later employed in Manila, protestee however went home to Laoang whenever he had the opportunity to do so, which invariably would be as frequent as twice to four times a year. 11. Protestee also showed that being a native and legal resident of Laoang, he registered as a voter therein and correspondingly voted in said municipality in the 1984 and 1986 elections. 12. Again in December 1986, during the general registration of all voters in the country, Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is a resident of Laoang since birth. (Exh. 7) 1 Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed the present petitions. In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the power and authority to act as the sole judge of all contests relating to the qualifications of the Members of the House of Representatives. 2 On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and competence to review the questioned decision of the tribunal and to decide the present controversy. Article VIII, Section I of the 1987 Constitution provides that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly," that: The judgment rendered by the (electoral) commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, "upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.) And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is dutybound to determine whether or not, in an actual controversy, there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The present controversy, it will be observed, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by

constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts an earnestly perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4

Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private respondent is qualified to hold so important and high a public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. After a careful consideration of the issues and the evidence, it is my considered opinion that the respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned decision and resolution, for reasons to be presently stated. The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day of the election. Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be deemed natural-born citizen, Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that: Section 1. The following are citizens of the Philippines: xxx xxx xxx (3) Those born before January 17, 1973, of Filipino mothers, who elect

Philippine citizenship upon reaching the age of majority. The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions. The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen. Does private respondent fall within said definition? To the respondent tribunal, Protestee may even be declared a natural-born citizen of the Philippines under the first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on 15 May 1957, while still a minor of 9 years he already became a Filipino citizen by declaration of law. Since his mother was a natural-born citizen at the time of her marriage, protestee had an inchoate right to Philippine citizenship at the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a Filipino citizen retroacted to the moment of his birth without his having to perform any act to acquire or perfect such Philippine citizenship. 6 I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect

Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7 Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen. But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue of the operation of CA 473, petitioners however contend that the naturalization of private respondent's father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino citizen. Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's naturalization is barred in an electoral contest which does not even involve him (Ong Chuan). Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's naturalization must emanate from the Government and must be made in a proper/appropriate and direct proceeding for denaturalization directed against the proper party, who in such case is Ong Chuan, and also during his lifetime. A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under the principle

of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or by the proper provincial fiscal. In Republic vs. Go Bon Lee, 10 this Court held that: An alien friend is offered under certain conditions the privilege of citizenship. He may accept the offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist and if they do not he takes nothing by this paper grant. xxx xxx xxx Congress having limited this privilege to a specified class of persons, no other person is entitled to such privilege, nor to a certificate purporting to grant it, and any such certificate issued to a person not so entitled to receive it must be treated as a mere nullity, which confers no legal rights as against the government, from which it has been obtained without warrant of law. "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 11

Considering the legal implications of the allegation made by the petitioners that the naturalization of private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said naturalization proceedings. This course of action becomes all the more inevitable and justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. 12 It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void naturalization of his father, would constitute or at least sanction a continuing offense against the Constitution. The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the Constitution and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate of Naturalization and for the applicant to take the oath of allegiance. However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. 13 In Cua Sun Ke vs. Republic, 14 this Court held that: Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs.

Republic of the Philippines, 121 Phil. 1381). It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private respondent's father) was null and void. It follows that the private respondent did not acquire any legal rights from the void naturalization of his father and thus he cannot himself be considered a Filipino citizen, more so, a natural-born Filipino citizen. But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable, the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a natural-born Filipino citizen. Let us now look into the question of whether or not private respondent acquired the status of a natural-born Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen. This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the age of majority. The right or privilege of election is available, however, only to those born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January 1973. The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who elect Philippine citizenship — all in its strained effort, according to petitioners, to support private respondent's qualification to be a Member of the House of Representatives. 15 Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987 Constitution contemplates that only the legitimate children of Filipino

mothers with alien father, born before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship) after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen. 16 The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found reason to refer to the interpellations made during the 1986 Constitutional Commission. It said: That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987 Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than persuasively established by the extensive interpellations and debate on the issue as borne by the official records of the 1986 Constitutional Commission. 17 Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding the meaning of the constitutional provisions in question. I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and even nebulous constitutional provisions. Thus — The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the

purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the constitution were guided mainly by the explanation offered by the framers. 18 The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be considered natural-born Filipino citizens. During the free-wheeling discussions on citizenship, Commissioner Treñas specifically asked Commissioner Bernas regarding the provisions in question, thus: MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a naturalborn Filipino citizen as provided in Section 4 of the 1973 Constitution, by adding that persons who have elected Philippine citizenship under the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding Officer?

FR BERNAS: Yes. MR. TRENAS: And does the Commissioner think that tills addition to Section 4 of the 1973 Constitution would be contrary to the spirit of that section? FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But whether it is contrary to the spirit is something that has been debated before and is being debated even now. We will recall that during the 1971 Constitutional Convention, the status of naturalborn citizenship of one of the delegates, Mr. Ang, was challenged precisely because he was a citizen by election. Finally, the 1971 Constitutional Convention considered him a natural-born citizen, one of the requirements to be a Member of

the 1971 Constitutional Convention. The reason behind that decision was that a person under his circumstances already had the inchoate right to be a citizen by the fact that the mother was a Filipino. And as a matter of fact, the 1971 Constitutional Convention formalized that recognition by adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose of this proviso is simply to perhaps remedy whatever injustice there may be so that these people born before January 17, 1973 who are not naturalized and people who are not natural born but who are in the same situation as we are considered natural-born citizens. So, the intention of the Committee in proposing this is to equalize their status. 19

When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to Commissioner Azcuna thus: MR. AZCUNA: With respect to the proviso in Section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under the 1935 Constitution? FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution, whether the election was done before or after 17 January 1973. 20 And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus: MR. RODRIGO: The purpose of that proviso is to remedy an inequitable situation. Between 1935

and 1973, when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and, if they do elect, they become Filipino citizens, yet, but not natural-born Filipino citizens. The 1973 Constitution equalized the status of those born of Filipino mothers and those born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took effect, those born of Filipino mothers but of alien fathers are natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born Filipino citizens. If the 1973 Constitution equalized the status of a child born of a Filipino mother and that born of a Filipino father, why do we not give a chance to a child born before January 17, 1973, if and when he elects Philippine citizenship, to be in the same status as one born of a Filipino father — namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a mother vis-avis the child. I would like to state also that we showed equalize the status of a child born of a Filipino mother the day before January 17, 1973 and a child born also of a Filipino mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is not a natural-born Filipino citizen. However, the other child who luckily was born 24 hours later — maybe because of parto laborioso — is a natural-born Filipino citizen. 21 It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, 22 and to foster equality among them. Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother (with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order to have the status of a naturalborn Filipino citizen under the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling of the respondent tribunal.

The respondent tribunal, on this issue, ruled as follows: Where a person born to a Filipino mother and an alien father had exercised the right of suffrage when he came of age, the same constitutes a positive act of election of Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering as a voter, participating in elections and campaigning for certain candidates were held by the Supreme Court as sufficient to show his preference for Philippine citizenship. Accordingly, even without complying with the formal requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23 I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect Philippine citizenship must be effected expressly not impliedly. The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. To quote Mr. Justice Fernandez in Mallare:

Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26 Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in an obiter dictum. The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution. Based on all the foregoing considerations and premises, I am constrained to state that private respondent is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to

Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member of the House of Representatives. At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the Constitution requires that a Member of the House of Representatives must be both a natural-born Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected. The next question that comes up is whether or not either of the petitioners can replace private respondent as the Representative of the second legislative district of Northern Samar in the House of Representatives. I agree with respondent tribunal that neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district of Northern Samar. The ruling of this Court in Ramon L.Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. 29 The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30 Sound policy dictates that public elective offices are filled by those who have the highest number of votes cast

in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676). As early as 1912, this Court has already declared that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found ineligible for the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) — Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. . . . If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other

case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. . . . 31 The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino citizen, in relation to the present case. Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same father and mother. Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in reference to this submission, said: Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship based on an entirely different set of circumstances, apart from the indisputable fact that the matters attempted to be brought in issue in connection therewith are too far removed in point of time and relevance from the decisive events relied upon by the Tribunal, we view

these two issues as being already inconsequential. 33 The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship by naturalization of private respondent's father (Ong Chuan) and on the alleged election of Philippine citizenship by private respondent. Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the dispositive portion of which stated: It appearing that protestee's grandfather was himself a Filipino citizen under the provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth, the conclusion is inescapable that protestee himself is a natural-born citizen, and is therefore qualified to hold the office of delegate to the Constitutional Convention. 34 On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election Protests and Credentials. 35 It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because — a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the 1935Constitution; the

present case, on the other hand involves the 1987 Constitution: b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the Philippines; the 1987 Constitution contains a precise and specific definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not qualify under such definition in the 1987 Constitution; c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of apolitical body, not a court of law. And, even if we have to take such a decision as a decision of aquasijudicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution. But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted before the electoral tribunal and, therefore, also before this Court, does not support the allegations made by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private respondent in the present controversy. This leads us to an interesting inquiry and finding. The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" — and this appears crucial and central to its decision — that Emil L.

Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became natural-born Filipinos. The 1971 Constitutional Convention said: Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899 and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899 as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4, Philippine Bill of 1902). 36 The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close

to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong, previously discussed. It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization. Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to look into the question because the finding that Ong Te had become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee vs. Commissioners of Immigration: 37 . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding Court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by private respondent that the resolution of the 1971 Constitutional Convention in the Emil L. Ong case

was elevated to this Court on a question involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that, according to private respondent, this Court allowed the use of the Committee Report to the 1971 Constitutional Convention. To fully appreciate the implications of such contention, it would help to look into the circumstances of the case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that Ong is not a naturalborn citizen. Ong filed a motion to dismiss the petition on the ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the COMELEC, docketed as G.R. No. 67201. In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335) This Court, in explaining its action, held that: Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction, and considering that at the hearing this morning, it was brought out that the 1971 Constitutional Convention, at its session of November 28, 1972, after considering the Report of its Committee on Election Protests and Credentials, found that the protest questioning the citizenship of the protestee (the petitioner herein) was groundless and dismissed Election

Protests Nos. EP 07 and EP 08 filed against said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well as of the said Committee's Report having been duly admitted in evidence without objection and bears out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to dismiss the same.This is without prejudice to any appropriate action that private respondent may wish to take after the elections. (emphasis supplied) It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a hearing on the merits either by the Court or by the COMELEC and merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections. It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or further proceeding in regard to the same question and that, consequently, there is no vested right of Emil L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution but the 1987 Constitution whose provisions were never considered in all such proceedings because the 1987 Constitution was still inexistent. A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative

(Congressman) to the House of Representatives for the second district of Northern Samar, would have had to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental consideration in cases of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they assumed and believed that he was fully eligible and qualified for the office because he is a naturalborn Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of Representatives should be "natural-born citizens of the Philippines". The voting majority of the present Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in effect, says, "even aliens will do as well." WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of Representatives, Congress of the Philippines. Narvasa, J., Paras, J. and Regalado, J., dissenting. SARMIENTO, J., concurring: I concur with the majority. (1) I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1 is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better. In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 4 It is not to review facts. "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5 I find none of that here.

As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion because the majority has begged to differ. It does not form part of the duty of the Court to remedy all imagined wrongs committed by the Government. The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and consequently, is possessed of the qualifications to be a member of the House. As the sole judge, precisely, of this question, the Court can not be more popish than the pope. (2) I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother. According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having complied with the requirements on Filipinization by existing laws for which his successors need not have elected Filipino citizenship. I quote: xxx xxx xxx There is merit in protestee's claim. There can hardly be any doubt that Ong Te protestees's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899, and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899, as well as their children born subsequent thereto, "shall be deemed

and held to be citizens of the Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects who shall have elected to preserve their allegiance to the Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only Spanish subjects who were natives of Peninsular Spain had the privilege of preserving their Spanish nationality. 7 xxx xxx xxx xxx xxx xxx As earlier noted, protestee's grandfather established residence in the Philippines in 1895, as shown by the Registro Central de Chinos. He was also issued a certificate of registration. He established a business here, and later acquired real property. Although he went back to China for brief visits, he invariably came back. He even brought his eldest son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong Chuan was admitted into the country because, as duly noted on his landing certificate, his father, Ong Te had been duly enrolled under CR 16009-36755 — i.e., as a permanent resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he left his son, Ong Chuan, who was then still a minor, in the Philippines — obviously because he had long considered the Philippines his home. The domicile he established in 1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile once acquired is not lost until a new one is gained. The only conclusion then can

thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 — and was, consequently, a Spanish subject, he qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 8 It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that he was, all along, a Chinese citizen, but as the Report held: Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan (protestee's father), appear to have been registered as Chinese citizens even long after the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent of having to seek admission as a Pilipino citizen through naturalization proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter of law, rather than of personal belief. It is what the law provides, and not what one thinks his status to be, which determines whether one is a citizen of a particular state or not. Mere mistake or misapprehension as to one's citizenship, it has been held, is not a sufficient cause or reason for forfeiture of Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9 It is to be noted that the Report was unanimously approved by the Committee, and on November 28, 1972, approved without any objection by the Convention in plenary session. 10

I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from experience, because when the Convention approved the Report in question, I was one of its vice-presidents and the presiding officer. It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use of the Committee Report. Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a settled matter. Let it rest. It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce for the gander. I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of 267 delegates, indeed, also of this Court.

Separate Opinions PADILLA, J., dissenting: I dissent. These separate petitions for certiorari and mandamus seek to annul the decision * of respondent House of Representatives Electoral Tribunal (hereinafter referred to as the tribunal) dated 6 November 1989 which declared private respondent Jose L. Ong, a natural-born citizen of the Philippines and a legal resident of Laoang, Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying petitioners' motions for reconsideration.

In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private respondent Ong not qualified to be a Member of the House of Representatives and to declare him (petitioner Co) who allegedly obtained the highest number of votes among the qualified candidates, the duly elected representative of the second legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos. 92191-92) not qualified for membership in the House of Representatives and to proclaim him (Balanguit) as the duly elected representative of said district. Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong Chuan, Jr. were among the candidates for the position of Representative or Congressman for the second district of Northern Samar during the 11 May 1987 congressional elections. Private respondent was proclaimed duly-elected on 18 May 1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co who obtained the next highest number of votes. Petitioners Co and Balanquit then filed separate election protests against private respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively. Both protests raised almost the same issues and were thus considered and decided jointly by the tribunal. The issues raised before the tribunal were the following:

The respondent tribunal in its decision dated 6 November 1989 held that respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal resident of Laoang, Northern Samar for the required period prior to the May 1987 congressional elections. He was, therefore, declared qualified to continue in office as Member of the House of Representatives, Congress of the Philippines, representing the second legislative district of Northern Samar. The factual antecedents taken from the consolidated proceedings in the tribunal are the following: 1. The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is Laoang which is now one of the municipalities comprising the province of Northern Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance appended to the 1987 Constitution). 2. On the other hand, Jose Ong Chuan was born in China and arrived in Manila on December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence in Laoang, Samar.

1. Whether or not protestee (meaning, Ong) is a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof; and

3. On February 4, 1932, he married Agrifina E. Lao. Their wedding was celebrated according to the rites and practices of the Roman Catholic Church in the Municipality of Laoang (Exh. E).

2. Whether or not protestee was a resident of Laoang, Northern Samar, in contemplation of Section 6, Article VI of the same Constitution, for a period of not less than one year immediately preceding the congressional elections of May 1987.

4. At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a natural-born Filipino citizen, both her parents at the time of her birth being Filipino citizens. (Exhibits E & I)

5. On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine citizenship, filed his petition for naturalization with the Court of First Instance of Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law. 6. On April 28, 1955, the Court of First Instance of Samar rendered a decision approving the application of Jose Ong Chuan for naturalization and declaring said petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities and obligations inherent to Filipino citizens. (Exh. E) 7. On May 15, 1957, the same Court issued an order: (1) declaring the decision of this Court of April 28, 1955 final and executory; (2) directing the clerk of court to issue the corresponding Certificate of Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen under Ms new christian name,

Jose Ong Chuan. (Exh. F) 8. On the same day, Jose Ong Chuan having taken the corresponding oath of allegiance to the Constitution and the Government of the Philippines as prescribed by Section 12 of Commonwealth Act No. 473, was issued the corresponding Certificate of Naturalization. (Exh. G) 9. On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional Convention. 10. By protestee's own -testimony, it was established that he had attended grade school in Laoang. Thereafter, he went to Manila where he finished his secondary as well as his college education. While later employed in Manila, protestee however went home to Laoang whenever he had the opportunity to do so, which invariably would be as frequent as twice to four times a year. 11. Protestee also showed that being a native and legal resident of Laoang, he registered as a voter therein and correspondingly voted in said municipality in the 1984 and 1986 elections. 12. Again in December 1986, during the general registration of all voters in the country, Protestee re-registered as a voter in Precinct No. 4 of Barangay Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is

a resident of Laoang since birth. (Exh. 7) 1 Petitioners' motions for reconsideration of the tribunal's decision having been denied, petitioners filed the present petitions. In their comments, the respondents first raise the issue of the Court's jurisdiction to review the decision of the House Electoral Tribunal, considering the constitutional provision vesting upon said tribunal the power and authority to act as the sole judge of all contests relating to the qualifications of the Members of the House of Representatives. 2 On the question of this Court's jurisdiction over the present controversy, I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and competence to review the questioned decision of the tribunal and to decide the present controversy. Article VIII, Section I of the 1987 Constitution provides that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs.Bocar, 3 construing Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly," that:

The judgment rendered by the (electoral) commission in the exercise of such an acknowledged power is beyond judicial interference, except, in any event, "upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.) And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is dutybound to determine whether or not, in an actual controversy, there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The present controversy, it will be observed, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a natural-born Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts an earnestly

perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36). 4 Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private respondent is qualified to hold so important and high a public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. After a careful consideration of the issues and the evidence, it is my considered opinion that the respondent tribunal committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering its questioned decision and resolution, for reasons to be presently stated. The Constitution 5 requires that a Member of the House of Representatives must be a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five (25) years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one (1) year immediately preceding the day of the election.

Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section I hereof shall be deemed natural-born citizen, Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that: Section 1. The following are citizens of the Philippines: xxx xxx xxx (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority. The Court in this case is faced with the duty of interpreting the above-quoted constitutional provisions. The first sentence of Section 2 of Article IV states the basic definition of a natural-born Filipino citizen. Does private respondent fall within said definition? To the respondent tribunal, Protestee may even be declared a natural-born citizen of the Philippines under the first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not have "to perform any act to acquire or perfect his Philippine citizenship." It bears to repeat that on 15 May 1957, while still a minor of 9 years he already became a Filipino citizen by declaration of law. Since his mother was a natural-born

citizen at the time of her marriage, protestee had an inchoate right to Philippine citizenship at the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA 473 that he was a Filipino citizen retroacted to the moment of his birth without his having to perform any act to acquire or perfect such Philippine citizenship. 6 I regret that I am neither convinced nor persuaded by such kaleidoscopic ratiocination. The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. 7 Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, 8 this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen.

But even assuming arguendo that private respondent could be considered a natural-born citizen by virtue of the operation of CA 473, petitioners however contend that the naturalization of private respondent's father was invalid and void from the beginning, and, therefore, private respondent is not even a Filipino citizen. Respondent tribunal in its questioned decision ruled that only a direct proceeding for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a collateral attack on Ong Chuan's naturalization is barred in an electoral contest which does not even involve him (Ong Chuan). Private respondent, for his part, avers in his Comment that the challenge against Ong Chuan's naturalization must emanate from the Government and must be made in a proper/appropriate and direct proceeding for denaturalization directed against the proper party, who in such case is Ong Chuan, and also during his lifetime. A judgment in a naturalization proceeding is not, however, afforded the character of impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides that a certificate of naturalization may be cancelled upon motion made in the proper proceeding by the Solicitor General or his representative, or by the proper provincial fiscal. In Republic vs. Go Bon Lee, 10 this Court held that: An alien friend is offered under certain conditions the privilege of citizenship. He may accept the offer and become a citizen upon compliance with the prescribed conditions, but not otherwise. His claim is of favor, not of right. He can only become a citizen upon and after a strict compliance with the acts of Congress. An applicant for this high privilege is bound, therefore, to conform to the terms upon which alone the right he seeks can be conferred. It is his province, and he is bound, to see that the jurisdictional facts upon which the grant is predicated actually exist and if they do

not he takes nothing by this paper grant. xxx xxx xxx Congress having limited this privilege to a specified class of persons, no other person is entitled to such privilege, nor to a certificate purporting to grant it, and any such certificate issued to a person not so entitled to receive it must be treated as a mere nullity, which confers no legal rights as against the government, from which it has been obtained without warrant of law. "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 11 Considering the legal implications of the allegation made by the petitioners that the naturalization of private respondent's father Ong Chuan, is a nullity, the Court should make a ruling on the validity of said naturalization proceedings. This course of action becomes all the more inevitable and justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. 12 It cannot be overlooked, in this connection, that the citizenship of private respondent is derived from his father. If his father's Filipino citizenship is void from the beginning, then there is nothing from which private respondent can derive his own claimed Filipino citizenship. For a spring cannot rise higher than its source. And to allow private respondent to avail of the privileges of Filipino citizenship by virtue of a void naturalization of his father, would constitute or at least sanction a continuing offense against the Constitution. The records show that private respondent's father, Jose Ong Chuan, took the oath of allegiance to the Constitution

and the Philippine Government, as prescribed by Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order directing the clerk of court to issue the corresponding Certificate of Naturalization and for the applicant to take the oath of allegiance. However, it is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. 13 In Cua Sun Ke vs. Republic, 14 this Court held that: Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void. (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381). It would appear from the foregoing discussion that the naturalization of Jose Ong Chuan (private respondent's father) was null and void. It follows that the private respondent did not acquire any legal rights from the void naturalization of his father and thus he cannot himself be considered a Filipino citizen, more so, a natural-born Filipino citizen. But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue the certificate of naturalization to Ong Chuan and for the latter to take the oath of allegiance was final and not appealable, the resulting naturalization of Ong Chuan effected, as previously stated, an automatic naturalization of private respondent, then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or perfection of the status of a natural-born Filipino citizen.

Let us now look into the question of whether or not private respondent acquired the status of a natural-born Filipino citizen by reason of the undisputed fact that his mother was a natural-born Filipino citizen. This in turn leads us to an examination of the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV, the status of a natural-born Filipino citizen to those who elect Philippine citizenship upon reaching the age of majority. The right or privilege of election is available, however, only to those born to Filipino mothers under the 1935 Constitution, and before the 1973 Constitution took effect on 17 January 1973. The petitioners contend that the respondent tribunal acted in excess of its jurisdiction or gravely abused its discretion as to exceed its jurisdiction in "distorting" the conferment by the 1987 Constitution of the status of "natural-born" Filipino citizen on those who elect Philippine citizenship — all in its strained effort, according to petitioners, to support private respondent's qualification to be a Member of the House of Representatives. 15 Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of the 1987 Constitution contemplates that only the legitimate children of Filipino mothers with alien father, born before 17 January 1973 and who would reach the age of majority (and thus elect Philippine citizenship) after the effectivity of the 1987 Constitution are entitled to the status of natural-born Filipino citizen. 16 The respondent tribunal in resolving the issue of the constitutional provisions' interpretation, found reason to refer to the interpellations made during the 1986 Constitutional Commission. It said: That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987 Constitution was (sic) intended by its (sic) framers to be endowed, without distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than persuasively established by the extensive interpellations and debate on the issue

as borne by the official records of the 1986 Constitutional Commission. 17 Although I find the distinction as to when election of Philippine citizenship was made irrelevant to the case at bar, since private respondent, contrary to the conclusion of the respondent tribunal, did not elect Philippine citizenship, as provided by law, I still consider it necessary to settle the controversy regarding the meaning of the constitutional provisions in question. I agree with respondent tribunal that the debates, interpellations petitions and opinions expressed in the 1986 Constitutional Commission may be resorted to in ascertaining the meaning of somewhat elusive and even nebulous constitutional provisions. Thus — The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the constitution were guided mainly by the explanation offered by the framers. 18 The deliberations of the 1986 Constitutional Commission relevant to Section 2, Article IV in relation to Section 1(3) of the same Article, appear to negate the contention of petitioners that only those born to Filipino mothers before 17 January 1973 and who would elect Philippine citizenship after the effectivity of the 1987 Constitution, are to be considered natural-born Filipino citizens. During the free-wheeling discussions on citizenship, Commissioner Treñas specifically asked Commissioner Bernas regarding the provisions in question, thus:

MR. TRENAS: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a naturalborn Filipino citizen as provided in Section 4 of the 1973 Constitution, by adding that persons who have elected Philippine citizenship under the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding Officer? FR BERNAS: Yes. MR. TRENAS: And does the Commissioner think that tills addition to Section 4 of the 1973 Constitution would be contrary to the spirit of that section? FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But

whether it is contrary to the spirit is something that has been debated before and is being debated even now. We will recall that during the 1971 Constitutional Convention, the status of naturalborn citizenship of one of the delegates, Mr. Ang, was challenged precisely because he was a citizen by election. Finally, the 1971 Constitutional Convention considered him a natural-born citizen, one of the requirements to be a Member of the 1971 Constitutional Convention. The reason behind that decision was that a person under his circumstances already had the inchoate right to be a citizen by the fact that the mother was a Filipino. And as a matter of fact, the 1971 Constitutional Convention formalized that recognition by

adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose of this proviso is simply to perhaps remedy whatever injustice there may be so that these people born before January 17, 1973 who are not naturalized and people who are not natural born but who are in the same situation as we are considered natural-born citizens. So, the intention of the Committee in proposing this is to equalize their status. 19 When asked to clarify the provision on natural-born citizens, Commissioner Bernas replied to Commissioner Azcuna thus: MR. AZCUNA: With respect to the proviso in Section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitution or would it also cover those who elected it under

the 1935 Constitution? FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution, whether the election was done before or after 17 January 1973. 20 And during the period of amendments. Commissioner Rodrigo explained the purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV of the 1987 Constitution, thus: MR. RODRIGO: The purpose of that proviso is to remedy an inequitable situation. Between 1935 and 1973, when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and, if they do elect, they

become Filipino citizens, yet, but not natural-born Filipino citizens. The 1973 Constitution equalized the status of those born of Filipino mothers and those born of Filipino fathers. So that from January 17, 1973 when the 1973 Constitution took effect, those born of Filipino mothers but of alien fathers are natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien mothers are natural-born Filipino citizens. If the 1973 Constitution equalized the status of a child born of a Filipino mother and that born of a Filipino father, why do we not give a chance to a child born before January 17, 1973, if and when he elects Philippine citizenship, to be in the same status as one born of a Filipino father — namely, natural-born citizen. Another thing I stated is equalizing the status of a father and a mother vis-avis the child. I would like to state also that we showed equalize the status of a child born of a Filipino mother the day before January 17, 1973 and a child born also of a Filipino mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine citizenship, but he is not a natural-born Filipino citizen. However, the other child who luckily was born 24 hours later — maybe because of parto laborioso — is a natural-born Filipino citizen. 21

It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon their reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, 22 and to foster equality among them. Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a Filipino mother (with an alien spouse) and should have elected Philippine citizenship on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order to have the status of a naturalborn Filipino citizen under the 1987 Constitution, the vital question is: did private respondent really elect Philippine citizenship? As earlier stated, I believe that private respondent did not elect Philippine citizenship, contrary to the ruling of the respondent tribunal. The respondent tribunal, on this issue, ruled as follows: Where a person born to a Filipino mother and an alien father had exercised the right of suffrage when he came of age, the same constitutes a positive act of election of Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in registering as a voter, participating in elections and campaigning for certain candidates were held by the Supreme Court as sufficient to show his preference for Philippine citizenship. Accordingly, even without complying with the formal requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23

I find the above ruling of the respondent tribunal to be patently erroneous and clearly untenable, as to amount to grave abuse of discretion. For it is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate that the option to elect Philippine citizenship must be effected expressly not impliedly. The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. To quote Mr. Justice Fernandez in Mallare: Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. 26 Moreover, Esteban Mallare was held to be a Filipino citizen because he was an illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I therefore agree with the petitioners' submission that, inciting the Mallare case, the respondent tribunal had engaged in an obiter dictum.

The respondent tribunal also erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the 1987 Constitution. Based on all the foregoing considerations and premises, I am constrained to state that private respondent is not a natural-born citizen of the Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections 2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member of the House of Representatives. At this point, I find it no longer necessary to rule on the issue of required residence, inasmuch as the Constitution requires that a Member of the House of Representatives must be both a natural-born Filipino citizen and a resident for at least one (1) year in the district in which he shall be elected. The next question that comes up is whether or not either of the petitioners can replace private respondent as the Representative of the second legislative district of Northern Samar in the House of Representatives. I agree with respondent tribunal that neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district

of Northern Samar. The ruling of this Court in Ramon L.Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. 28 It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. 29 The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 30 Sound policy dictates that public elective offices are filled by those who have the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676). As early as 1912, this Court has already declared that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found ineligible for the office to which he was elected. This was the ruling in Topacio v. Paredes (23 Phil. 238) — Again, the effect of a decision that

a candidate is not entitled to the office because of fraud or irregularities in the election is quite different from that produced by declaring a person ineligible to hold such an office. . . . If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. . . . 31 The recognition of Emil L. Ong by the 1971 Constitutional Convention as a natural-born Filipino citizen, in relation to the present case.

Private respondent, as previously stated, is a full brother of Emil L. Ong, both of them having the same father and mother. Private respondent, relying on a resolution of the 1971 Constitutional Convention 32 to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino citizen. This submission, while initially impressive, is, as will now be shown, flawed and not supported by the evidence. Not even the majority decision of the electoral tribunal adopted the same as the basis of its decision in favor of private respondent. The tribunal, in reference to this submission, said: Be that as it may and in the light of the Tribunal's disposition of protestee's citizenship based on an entirely different set of circumstances, apart from the indisputable fact that the matters attempted to be brought in issue in connection therewith are too far removed in point of time and relevance from the decisive events relied upon by the Tribunal, we view these two issues as being already inconsequential. 33 The electoral tribunal (majority) instead chose to predicate its decision on the alleged citizenship by naturalization of private respondent's father (Ong Chuan) and on the alleged election of Philippine citizenship by private respondent. Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral protests, numbers EP07 and EP-08, were filed by Leonardo D. Galing and Gualberto D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee on Election Protests Credentials of the 1971 Contitution Convention heard the protests and submitted to the Convention a report dated 4 September 1972, the dispositive portion of which stated: It appearing that protestee's grandfather was himself a Filipino

citizen under the provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10, 1898, thus conferring upon protestee's own father, Ong Chuan, Philippine citizenship at birth, the conclusion is inescapable that protestee himself is a natural-born citizen, and is therefore qualified to hold the office of delegate to the Constitutional Convention. 34

of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution.

On 28 November 1972, during a plenary session of the 1971 Constitutional Convention, the election protests filed against Emil L. Ong were dismissed, following the report of the Committee on Election Protests and Credentials. 35

But even laying aside the foregoing reasons based on procedural rules and logic, the evidence submitted before the electoral tribunal and, therefore, also before this Court, does not support the allegations made by Emil L. Ong before the 1971 Constitutional Convention and inferentially adopted by private respondent in the present controversy. This leads us to an interesting inquiry and finding.

It is evident, up to this point, that the action of the 1971 Constitutional Convention in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar, because — a) the 1971 Constitutional Convention decision in the Emil L. Ong case involved the 1935Constitution; the present case, on the other hand involves the 1987 Constitution: b) the 1935 Constitution contained no specific definition of a "natural-born citizen" of the Philippines; the 1987 Constitution contains a precise and specific definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and private respondent does not qualify under such definition in the 1987 Constitution; c) the decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of apolitical body, not a court of law. And, even if we have to take such a decision as a decision of aquasijudicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character

The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born citizen" of the Philippines under the 1935 Constitution laid stress on the "fact" — and this appears crucial and central to its decision — that Emil L. Ong's grandfather, Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his descendants like Emil L. Ong (and therefore, also private respondent) became natural-born Filipinos. The 1971 Constitutional Convention said: Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899 and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899 as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands." (Section 4, Philippine Bill of 1902). 36

The "test" then, following the premises of the 1971 Constitutional Convention, is whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro Central de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of Emil L. Ong, previously discussed. It is not surprising then that, as previously noted, the majority decision of the House Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan, the son of Ong Te and father or private respondent, did not even attempt to claim Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the Philippine Bill of 1902 but instead applied for Philippine citizenship through naturalization. Nor can it be contended by the private respondent that the House Electoral Tribunal should no longer have reviewed the factual question or issue of Ong Te's citizenship in the light of the resolution of the 1971 Constitutional Convention finding him (Ong Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal had to

look into the question because the finding that Ong Te had become a Filipino citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution but as held in Lee vs. Commissioners of Immigration: 37 . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding Court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended by private respondent that the resolution of the 1971 Constitutional Convention in the Emil L. Ong case was elevated to this Court on a question involving Emil L. Ong's disqualification to run for membership in the Batasang Pambansa and that, according to private respondent, this Court allowed the use of the Committee Report to the 1971 Constitutional Convention. To fully appreciate the implications of such contention, it would help to look into the circumstances of the case brought before this Court in relation to the Court's action or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for disqualification with the Commission on Election on 29 March 1984 docketed as SPC No. 84-69 contending that Ong is not a naturalborn citizen. Ong filed a motion to dismiss the petition on the ground that the judgment of the 1971 Constitutional Convention on his status as a natural-born citizen of the Philippines bars the petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201, Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong to file with this Court a petition for certiorari, prohibition and mandamus with preliminary injunction against the COMELEC, docketed as G.R. No. 67201.

In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled "Edilberto Del Valle vs. Emil Ong(SPC No. 84-69) except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335) This Court, in explaining its action, held that: Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary Injunction, and considering that at the hearing this morning, it was brought out that the 1971 Constitutional Convention, at its session of November 28, 1972, after considering the Report of its Committee on Election Protests and Credentials, found that the protest questioning the citizenship of the protestee (the petitioner herein) was groundless and dismissed Election Protests Nos. EP 07 and EP 08 filed against said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well as of the said Committee's Report having been duly admitted in evidence without objection and bears out, for now, without need for a full hearing, that petitioner is a natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of Preliminary Injunction enjoining respondent COMELEC from holding any further hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to dismiss the same.This is without prejudice to any appropriate action that private respondent may wish to take after the elections. (emphasis supplied) It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered without the benefit of a hearing on

the merits either by the Court or by the COMELEC and merely on the basis of a Committee's Report to the 1971 Constitutional Convention, and that this Court (and this is quite significant) did not foreclose any appropriate action that Del Valle (therein petitioner) may wish to take after the elections.

WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr., as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT QUALIFIED to be a Member of the House of Representatives, Congress of the Philippines. Narvasa, J., Paras, J. and Regalado, J., dissenting.

It is thus abundantly clear also that to this Court, the resolution of the 1971 Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under the 1935 Constitution did not foreclose a future or further proceeding in regard to the same question and that, consequently, there is no vested right of Emil L. Ong to such recognition. How much more when the Constitution involved is not the 1935 Constitution but the 1987 Constitution whose provisions were never considered in all such proceedings because the 1987 Constitution was still inexistent. A final word. It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative (Congressman) to the House of Representatives for the second district of Northern Samar, would have had to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental consideration in cases of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they assumed and believed that he was fully eligible and qualified for the office because he is a naturalborn Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. This is a sad day for the Constitution. As I see it, the Constitution mandates that members of the House of Representatives should be "natural-born citizens of the Philippines". The voting majority of the present Court says, "Filipino citizens will do." This is bad enough. What is worse is, the same voting majority, in effect, says, "even aliens will do as well."

SARMIENTO, J., concurring: I concur with the majority. (1) I wish to point out first that the question of citizenship is a question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1 is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better.

In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, 3 but as the Charter states, our authority is "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 4 It is not to review facts. "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5 I find none of that here. As the majority indicates, Jose Ong's citizenship is a matter of opinion with which men may differ, but certainly, it is quite another thing to say that the respondent Tribunal has gravely abused its discretion because the majority has begged to differ. It does not form part of the duty of the Court to remedy all imagined wrongs committed by the Government. The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino citizen and consequently, is possessed of the qualifications to be a member of the House. As the sole judge, precisely, of this question, the Court can not be more popish than the pope. (2) I can not say, in the second place, that the Decision in question stands exactly on indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election Protests and Credentials, in which the Committees upheld the citizenship, and sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood brother. According to the Report, Ong Te the Ongs' grandfather, was already a Filipino citizen having

complied with the requirements on Filipinization by existing laws for which his successors need not have elected Filipino citizenship. I quote: xxx xxx xxx There is merit in protestee's claim. There can hardly be any doubt that Ong Te protestees's grandfather, was a Spanish subject residing in the Philippines on April 11, 1899, and was therefore one of the many who became ipso facto citizens of the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly declared that all inhabitants of the Philippine Islands who continued to reside therein and who were Spanish subjects on April 11, 1899, as well as their children born subsequent thereto, "shall be deemed and held to be citizens of the Philippine Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule were Spanish subjects who shall have elected to preserve their allegiance to the Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But under the Treaty of Paris, only Spanish subjects who were natives of Peninsular Spain had the privilege of preserving their Spanish nationality. 7 xxx xxx xxx xxx xxx xxx As earlier noted, protestee's grandfather established residence in the Philippines in 1895, as shown by the Registro Central de Chinos. He was also issued a certificate of registration. He established a business here, and later acquired real property. Although he went back to

China for brief visits, he invariably came back. He even brought his eldest son, Ong Chuan, to live in the Philippines when the latter was only 10 years old. And Ong Chuan was admitted into the country because, as duly noted on his landing certificate, his father, Ong Te had been duly enrolled under CR 16009-36755 — i.e., as a permanent resident. Indeed, even when Ong Te went back to China in the 1920's for another visit, he left his son, Ong Chuan, who was then still a minor, in the Philippines — obviously because he had long considered the Philippines his home. The domicile he established in 1895 is presumed to have continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile once acquired is not lost until a new one is gained. The only conclusion then can thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11, 1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 — and was, consequently, a Spanish subject, he qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 8 It is true that Ong Chuan, the Ong brothers' father, subsequently sought naturalization in the belief that he was, all along, a Chinese citizen, but as the Report held: Protestants, however, make capital of the fact that both Ong Te and his son, Ong Chuan (protestee's father), appear to have been registered as Chinese citizens even long after the turn of the century. Worse, Ong Chuan himself believed the was alien, to the extent of having to seek admission as a Pilipino citizen through naturalization proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status as a citizen is a matter of law, rather than of

personal belief. It is what the law provides, and not what one thinks his status to be, which determines whether one is a citizen of a particular state or not. Mere mistake or misapprehension as to one's citizenship, it has been held, is not a sufficient cause or reason for forfeiture of Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80 Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law (Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9 It is to be noted that the Report was unanimously approved by the Committee, and on November 28, 1972, approved without any objection by the Convention in plenary session. 10 I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all candor, I speak from experience, because when the Convention approved the Report in question, I was one of its vice-presidents and the presiding officer. It is to be noted finally, that the matter was elevated to this Court (on a question involving Emil Ong's qualification to sit as member of the defunct Batasang Pambansa) 11 in which this Court allowed the use of the Committee Report. Faced with such positive acts of the Government, I submit that the question of the Ong's citizenship is a settled matter. Let it rest. It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit, however, that what is sauce for the goose is sauce for the gander. I also submit that the fundamental question is whether or not we will overturn the unanimous ruling of 267 delegates, indeed, also of this Court. Footnotes

Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba. G.R. No. 118702 March 16, 1995 CIRILO ROY G. MONTEJO, petitioner, vs. COMMISSION ON ELECTIONS, respondent. SERGIO A.F. APOSTOL, intervenor.

PUNO, J.: More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle of equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol, representing the Second District, vigorously opposed the inclusion ofTolosa in his district. We gave due course to the petition considering that, at bottom, it involves the validity of the unprecedented exercise by the COMELEC of the legislative power of redistricting and reapportionment. The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative districts. 1 The first district 2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San Miguel, Sta. Fe, Tanauan and Tolosa. The second district 3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga. The third district 4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran, Calubian, Culaba,

The fourth district 5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga, Matagob, Merida, and Palompon. The fifth district 6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, Hindang, Inopacan, Javier, Mahaplag, and Matalom. Biliran, located in the third district of Leyte , was made its sub-province by virtue of Republic Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959. 7 Section 1 of the law spelled out the municipalities comprising the sub-province, viz.: "Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein." On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-province of Biliran became a regular province. It provides: Existing subprovinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be held in the subprovinces and the original provinces directly affected. The plebiscite shall be conducted by the COMELEC simultaneously with the national elections following the effectivity of

this code. The new legislative districts created as a result of such conversion shall continue to be represented in Congress by the duly-elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified. The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third District composed the new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further consequence was to reduce the Third District to five (5) municipalities with a total population of 145,067 as per the 1990 census. To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of the province and other interested parties. On December 29, 1994, it promulgated Resolution No. 2736 where, among others, it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte. The composition of the First District which includes the municipality of Tolosaand the composition of the Fifth District were not disturbed. After the movement of municipalities, the

composition of the five (5) legislative districts appeared as follows: First District: Population Registered Voters (1990) (1994) 1. Tacloban City, 137,190 81,679 2. Alangalang, 33,375 20,543 3. Babatngon, 17,795 9,929 4. Palo, 38,100 20,816 5. San Miguel, 13,438 8,167 6. Sta. Fe, 12,119 7,497 7. Tanauan and, 38,033 22,357 8. Tolosa; 13,299 7,700 ———— ———— TOTAL 303,349 178,688 Second District: Population Registered Voters (1990) (1994) 1. Barugo, 23,817 13,237 2. Barauen, 46,029 23,307 3. Carigara 38,863 22,036 4. Dagami, 25,606 16,519 5. Dulag, 33,020 19,375 6. Jaro, 31,727 17,139 7. Julita, 9,944 6,196 8. La Paz, 14,311 9,003 9. Mayorga, 10,530 5,868 10. Mac Arthur, 13,159 8,628 11. Pastrana, 12,565 7,348 12. Tabontabon, and 7,183 4,419 13. Tunga; 5,413 3,387 ———— ———— TOTAL 272,167 156,462

Third District: Population Registered Voters (1990) (1994) 1. Calubian, 25,968 16,649 2. Leyte, 32,575 16,415 3. San Isidro, 24,442 14,916 4. Tabango, 29,743 15,48 5. Villaba, 32,339 21,227 6. Capoocan, and 23,687 13,595 7. Palompon; 45,745 27,474 ———— ———— TOTAL 214,499 125,763 Fourth District: Population Registered Voters (1990) (1994) 1. Ormoc City, 129,456 75,140 2. Albuera, 32,395 17,493 3. Isabel, 33,389 21,889 4. Kananga, 36,288 19,873 5. Matagob, 15,474 9,407 6. Merida, and 22,345 12,474 ———— ———— TOTAL 269,347 155,995 Fifth District: Population Registered Voters (1990) (1994) 1. Abuyog, 47,265 28,682 2. Bato, 28,197 116,13 3. Baybay, 82,281 47,923 4. Hilongos, 48,617 26,871 5. Hindang, 16,272 9,659 6. Inopacan, 16,894 10,401

7. Javier, 18,658 11,713 8. Mahaplag, and 22,673 13,616 9. Matalom 28,291 16,247 ———— ———— TOTAL 309,148 181,242 Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC, among others, to the inequitable distribution of inhabitants and voters between the First and Second Districts. He alleged that the First District has 178,688 registered voters while the Second District has 156,462 registered voters or a difference of 22,226 registered voters. To diminish the difference, he proposed that the municipality of Tolosa with 7,7000 registered voters be transferred from the First to the Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied the motion ruling that: (1) its adjustment of municipalities involved the least disruption of the territorial composition of each district; and (2) said adjustment complied with the constitutional requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of equality of representation ordained in the Constitution. Citing Wesberry v. Sanders, 8 he argues that respondent COMELEC violated "the constitutional precept that as much as practicable one man's vote in a congressional election is to be worth as much as another's." The Solicitor General, in his Comment, concurred with the views of the petitioner. The intervenor, however, opposed the petition on two (2) grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC filed its own Comment alleging that it acted within the parameters of the Constitution. We find section 1 of Resolution No. 2736 void. While the petition at bench presents a significant issue, our first inquiry will relate to the constitutional power of the respondent COMELEC 9 to transfer municipalities from one

legislative district to another legislative district in the province of Leyte. The basic powers of respondent COMELEC, as enforcer and administrator of our election laws, are spelled out in black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC does not invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of its power of redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is entitled "Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: xxx xxx xxx Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the reapportionment herein made. Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3),

Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied) The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang Pambansa. 11 She then exercised legislative powers under the Provisional Constitution. 12 The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a distinguished member of this Court. The records reveal that the Constitutional Commission had to resolve several prejudicial issues before authorizing the first congressional elections under the 1987 Constitution. Among the vital issues were: whether the members of the House of Representatives would be elected by district or by province; who shall undertake the apportionment of the legislative districts; and, how the apportionment should be made. 14 Commissioner Davide, Jr. offered three (3) options for the Commission to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the COMELEC to make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance appended to the Constitution. 15 The different dimensions of the options were discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople. We quote the debates in extenso, viz.: 16

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized. MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution and this was, I believe, a prior or a proposed amendment. Also, the chairman of the Committee on the Legislative said that he was proposing a vote first by the Chamber on the concept of whether the election is by province and cities on the one hand, or by legislative districts on the other. So I propose this simple formulation which reads: "FOR THE FIRST ELECTION UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I hope the chairman will accept the proposed amendment. SUSPENSION OF SESSION MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is concerned, but the Bernas-Sarmiento et al. proposal would also provide for a mandate for the apportionment later, meaning after the first election, which will in effect embody what the Commission had approved, reading as follows: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section."

xxx xxx xxx MR. PADILLA. Mr. Presiding Officer.

So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the proponents can work together.

THE PRESIDING OFFICER (Mr. Jamir). The session is suspended. It was 3:33 p.m.

SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES AND THE METROPOLITAN MANILA AREA AS FOLLOWS."

RESUMPTION OF SESSION At 3:40 p.m., the session was resumed. THE PRESIDING OFFICER (Mr. Jamir). The session is resumed. Commissioner Davide is recognized. MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow this. We will just delete the proposed subparagraph (4) and all the capitalized words in paragraph (5). So that in paragraph (5), what would be left would only be the following: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." But we shall have an ordinance appended to the new Constitution indicating specifically the following: "FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IN THE FIRST CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986 CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL OTHERWISE PROVIDED BY LAW, THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

And what will follow will be the allocation of seats to Metropolitan Manila Area, to the provinces and to the cities, without indicating the municipalities comprising each of the districts. Then, under Section 2, we will mandate the COMELEC to make the actual apportionment on the basis of the number of seats provided for and allocated to each province by us. MS. AQUINO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized. MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do the redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or spheres of influence; in other words, gerrymandering. This Commission, being a nonpartisan, a nonpolitical deliberative body, is in the best possible situation under the circumstances to undertake that responsibility. We are not wanting in expertise and in time because in the first place, the Committee on the Legislative has prepared the report on the basis of the recommendation of the COMELEC. MR. OPLE. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized. MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect. We know that the reapportionment of provinces and cities for the purpose of redistricting is generally inherent in the constituent power or in the legislative power. And I would feel very uncertain about delegating this to a quasi-judicial body even if it is one of the constitutional offices created under this Constitution. We have the assurance of Commissioner Davide, as chairman of the Committee on the Legislative, that even given the very short time remaining in the life of this Commission, there is no reason why we cannot complete the work of reapportionment on the basis of the COMELEC plan which the committee has already thoroughly studied and which remains available to the Constitutional Commission. So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is the safest, the most reasonable, and the most workable approach that is available to this Commission. THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say: MR. DAVIDE. The issue now is whether this body will make the apportionment itself or whether we will leave it to the COMELEC. So, there arises, therefore, a prejudicial question for the body to decide. I would propose that the Commission

should now decide what body should make the apportionment. Should it be the Commission or should it be the COMELEC? And the Committee on the Legislative will act accordingly on the basis of the decision.

MR. RODRIGO. I just would like to ask Commissioner Davide some questions.

MR. REGALADO. May I address a clarificatory question to Commissioner Davide?

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he so desires.

THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed.

MR. DAVIDE. Gladly.

MR. REGALADO. On the basis of the Commissioner's proposed apportionment and considering the fact that there will be a corresponding reduction to 183 seats, would there be instances representation of under nonrepresentation?

MR. BENGZON. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized. MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee on the Legislative has precisely worked on this matter and they are ready with a list of apportionment. They have, in fact, apportioned the whole country into various districts based on the recommendation of the COMELEC. So they are ready with the list and if this body would wish to apportion the whole country by district itself, then I believe we have the time to do it because the Committee on the Legislative is ready with that particular report which need only to be appended to the Constitution. So if this body is ready to accept the work of the Committee on the Legislative we would have no problem. I just would like to give that information so that the people here would be guided accordingly when they vote. MR. RODRIGO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized.

MR. RODRIGO. Will this apportionment which we are considering apply only to the first election after the enactment of the Constitution? MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis of the Sarmiento proposal, it will only apply to the first election.

MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will be no case of inequitable distribution. It will come out to be one for every 350 to 400,000 inhabitants.

MR. RODRIGO. And after that, Congress will have the power to reapportion.

MR. REGALADO. And that would be within the standard that we refer.

MR. DAVIDE. Yes.

MR. DAVIDE. Yes, Mr. Presiding Officer.

MR. RODRIGO. So, if we attach this to the Constitution — the reapportionment based on the COMELEC study and between the approval of the Constitution and the first election — the COMELEC no longer has the power to change that even a bit. xxx xxx xxx THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized.

MR. REGALADO. Thank you. MR. RAMA. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized. MR. RAMA. The parliamentary situation is that there was a motion by Commissioner Sarmiento to mandate COMELEC to do the redistricting. This was also almost the same motion by Commissioner Padilla and I think we have had some kind of meeting of

minds. On the other hand, there seems to be a prejudicial question, an amendment to the amendment as suggested by Commissioner Aquino, that instead of the COMELEC, it should be this Commission that shall make the redistricting. So may I ask Commissioner Aquino, if she insists on that idea, to please formulate it into a motion so we can vote on that first as an amendment to the amendment. THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized. MS . AQUINO. The motion is for this Commission to undertake the apportionment of the legislative districts instead of the proposal that COMELEC be given the mandate to undertake the responsibility. xxx xxx xxx MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed amendment? THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment. MR. SARMIENTO. May we move for the approval of this proposed amendment which we substitute for paragraphs 4 and 5. MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a deletion of paragraph 4 because that should not really appear as a paragraph in Section 5; otherwise, it will appear very ugly in the Constitution where we mandate a Commission that will

become functus officioto have the authority. As a matter of fact, we cannot exercise that authority until after the ratification of the new Constitution. THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento say? MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of this proposed amendment. MS. AQUINO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized.

THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner Aquino? MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore, adopting my motion? Would it not be right for him to move that the COMELEC be mandated? MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will be mandated. MS. AQUINO. So, the Gentlemen has accepted the amendment the amendment. Thank you.

MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion?

MR. SARMIENTO. I am voting that this Commission do the reapportionment.

THE PRESIDING OFFICER (Mr. Jamir). That will require a two-thirds vote.

VOTING

MS. AQUINO. Thank you. Mr. Presiding Officer. MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed. MR. SARMIENTO. May I move that this Commission do the reapportionment legislative districts. MS. AQUINO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote. As many as are in favor, please raise their hand. (Several Members raised their hand.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 30 votes in favor and none against; the motion is approved. Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative apportionment

as it itself exercised the power. Section 2 of the Ordinance only empowered the COMELEC "to make minoradjustments of the reapportionment herein made." The meaning of the phrase "minor adjustments was again clarified in the debates 17 of the Commission, viz.: xxx xxx xxx MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the Commission on Elections is empowered to make minor adjustments on the apportionment made here. MR. DAVIDE. Yes, Mr. Presiding Officer. MR. GUINGONA. We have not set any time limit for this. MR. DAVIDE. We should not set a time limit unless during the period of amendments a proposal is made. The authority conferred would be on minor corrections or amendments, meaning to say, for instance, that we may have forgotten an intervening municipality in the enumeration, which ought to be included in one district. That we shall consider a minor amendment. MR. GUINGONA. Thank you. xxx xxx xxx THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is recognized. MR. DE CASTRO. Thank you.

I was about to ask the committee the meaning of minor adjustment. Can it be possible that one municipality in a district be transferred to another district and call it a minor adjustment? MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, meaning, that there should be no change in the allocations per district. However, it may happen that we have forgotten a municipality in between which is still in the territory of one assigned district, or there may be an error in the correct name of a particular municipality because of changes made by the interim Batasang Pambansa and the Regular Batasang Pambansa. There were many batas pambansa enacted by both the interim and the Regular Batasang Pambansa changing the names of municipalities. MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is not mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust or to put such municipality to a certain district. MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a division of a municipality by the interim Batasang Pambansa or the Regular Batasang Pambansa into two municipalities, meaning, a mother municipality and the new municipality, but still actually these are within the geographical district area. MR. DE CASTRO. So the minor adjustment which the COMELEC cannot do is that, if, for example, my municipality is in the First District of

Laguna, they cannot put that in any other district. MR. DAVIDE. That is not even a minor correction. It is a substantive one. MR. DE CASTRO. Thank you. Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not also give the respondent COMELEC any authority to transfer municipalities from one legislative district to another district. The power granted by Section 3 to the respondent COMELEC is to adjust the number of members (not municipalities) "apportioned to the province out of which such new province was created. . . ." Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it promulgated section 1 of its Resolution No. 2736 transferring the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte. It may well be that the conversion of Biliran from a subprovince to a regular province brought about an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of the Constitution categorically gives Congress the power to reapportion, thus: "Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." In Macias v. COMELEC,18 we ruled that the validity of a legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing respondent COMELEC to

transfer the municipality of Tolosa from the First District to the Second District of the province of Leyte. IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosafrom the First District to the Second District of the province of Leyte. No costs.

Pertinent parts of the resolution — called Pendatun — are these:

SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

G.R. No. L-543

When the Senate convened on May 25, 1946, it proceeded with the selection of its officers. Thereafter, in the course of the session, a resolution was approved referring to the report and ordering that, pending the termination of the protest lodged against their election, the herein petitioners, Jose O. Vera, Ramon Diokno and Jose E. Romero — who had been included among the sixteen candidates for senator receiving the highest number of votes, proclaimed by the Commission on Elections — shall not be sworn, nor seated, as members of the chamber.

August 31, 1946

JOSE O. VERA, ET AL., petitioners, vs. JOSE A. AVELINO, ET AL., respondents. Jose W. Diokno and Antonio Barredo for petitioners. Vicente J. Francisco and Solicitor General Tañada for respondents. J. Antonio Araneta of the Lawyers' Guild as amicus curiae. BENGZON, J.: Pursuant to a constitutional provision (section 4, Article X), the Commission on elections submitted, last May, to the President and the Congress of the Philippines, its report on the national elections held the preceding month, and, among other things, stated that, by reason of certain specified acts of terrorism and violence in the Provinces of Pampanga, Nueva Ecija, Bulacan and Tarlac, the voting in said region did not reflect the true and free expression of the popular will.

WHEREAS the Commission on Elections, charged under the Constitution with the duty of insuring free, orderly, and honest elections in the Philippines, reported to the President of the Philippines on May 23, 1946, that ". . . Reports also reached this Commission to the effect that in the Provinces of Bulacan, Pampanga, Tarlac and Nueva Ecija, the secrecy of the ballot was actually violated; the armed bands saw to it that their candidates were voted for; and that the great majority of the voters, thus coerced or intimadated, suffered from a paralysis of judgement in the matter of exercising the right of suffrage; considering all those acts of terrorism, violence and intimidation in connection with elections which are more or less general in the Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, this Commission believes that the election in the provinces aforesaid did not reflect the true and free expression of the popular will. It should be stated, however, that the Commission is without jurisdiction, to determine whether or not the votes cast in the said provinces which, according to these reports have been cast under

the influence of threats or violence, are valid or invalid. . . ." WHEREAS, the minority report of the Hon. Vicente de Vera, member of the Commission on Elections, says among other things, that "we know that as a result of this chaotic condition, many residents of the four provinces have voluntarily banished themselves from their home towns in order not to be subjected to the prevailing oppression and to avoid being victimized or losing their lives"; and that after the election dead bodies had been found with notes attached to their necks, reading, "Bomoto kami kay Roxas" (we voted for Roxas); WHEREAS the same Judge De Vera says in his minority report that in the four Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, the worst terrorism reigned during and after the election, and that if the elections held in the aforesaid provinces were annulled as demanded by the circumstances mentioned in the report of the Commission, Jose O. Vera, Ramon Diokno, and Jose Romero, would not and could not have been declared elected; xxx

xxx

xxx

WHEREAS the terrorism resorted to by the lawless elements in the four provinces mentioned above in order to insure the election of the candidates of the Conservative wing of the Nationalist Party is of public knowledge and that such terrorism continues to this day; that before the elections Jose O. Vera himself declared as campaign Manager of the Osmeña faction that he was sorry if Presidential Candidate Manuel A. Roxas could not campaign in the Huk provinces because his life would be endangered; and that because of the constant murders of his candidates and leaders, Presidential Candidate Roxas found it necessary to appeal to American High Commissioner Paul V. McNutt for protection, which appeal American High Commissioner personallyreferred to President

Sergio Osme_¤_a for appropriate action, and the Presidentin turn ordered the Secretary of the existence and reign of such terrorism;

In their pleadings, respondents traverse the jurisdiction of this court, and assert the validity of the Pendatun Resolution.

WHEREAS the Philippines, a Republic State, embracing the principles ofdemocracy, must condem all acts that seek to defeat the popular will;

The issues, few and clear-cut, were thoroughly discussed at the extended oral argument and in comprehensive memoranda submitted by both sides. A.—NO JURISDICTION

WHEREAS it is essential, in order to maintain alive the respect fordemocratic institutions among our people, that no man or group of men be permitted to profit from the results of an election held under coercion, in violation of law, and contrary to the principle of freedom of choice which should underlie all elections under the Constitution; WHEREAS protests against the election of Jose O. Vega, Ramon Diokno, and Jose Romero, have been filed with the electoral Tribunal of the Senate of the Philippines on the basis of the findings of the Commission on Elections above quoted; NOW, THEREFORE, be it resolved by the Senate of the Philippines in session assembled, as it hereby resolves, to defer the administration of oath and the sitting of Jose O. Vera, Ramon Diokno, and Jose Romero, pending the hearing and decision on the protests lodged against their elections, wherein the terrorism averred in the report of the Commission on Elections and in the report of the Provost Marshal constitutes the ground of said protests and will therefore be the subject of investigation and determination. Petitioners immediately instituted this action against their colleagues responsible for the resolution. They pray for an order annulling it, and compelling respondents to permit them to occupy their seats, and to exercise their senatorial prerogatives.

Way back in 1924, Senator Jose Alejandrino assaulted a fellow-member in the Philippine Senate. That body, after investigation, adopted a resolution, suspending him from office for one year. He applied here for mandamus and injunction to nullify the suspension and to require his colleagues to reinstate him. This court believed the suspension was legally wrong, because, as senator appointed by the Governor-General, he could not be disciplined by the Philippine Senate; but it denied the prayer for relief, mainly upon the theory of the separation of the three powers, Executive, Legislative and Judicial. (Alejandrino vs. Quezon, 46 Phil., 81.) Said the decision: . . . Mandamus will not lie against the legislative body, its members, or its officers, to compel the performance of duties purely legislative in their character which therefore pertain to their legislative functions and over which they have exclusive control. The courts cannot dictate action in this respect without a gross usurpation of power. So it has been held that where a member has been expelled by the legislative body, the courts have no power, irrespective of whether the expulsion was right or wrong, to issue a mandate to compel his reinstatement. (Code of civil Procedure, section 222, 515; 18 R.C. L., 186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate [1905], 146 Cal; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel. Crammer vs. Thorson [1896], 33 L. R. A., ex rel. Bruce vs. Dunne [1913], 258 Ill., 441; Peopleex rel. La Chicote vs. Best

[1907], 187 N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.) (Supra, pp. 88, 89.) . . . Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. (Supra, p. 93) No court has ever held and we apprehend no court will ever hold that it possesses the power to direct the Chief Executive or the Legislature or a branch thereof to take any particular action. If a court should ever be so rash as to thus trench on the domain of either of the other departments, it will be the end of popular government as we know it in democracies. (Supra, p. 94.) Conceding therefore that the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend an appointive member from the exercise of his office for one year, conceding what has been so well stated by the learned counsel for the petitioner, conceding all this and more, yet the writ prayed for cannot issue, for the allconclusive reason that the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. . . . (Supra, p. 97.) The same hands-off policy had been previously followed in Severino vs. Governor-General and Provincial Board of Occidental Negros (16 Phil., 366) and Abueva vs. Wood (45 Phil., 612) At this point we could pretend to erudition by tracing the origin, development and various applications of theory of separation of powers, transcribing herein whole paragraphs from adjudicated cases to swell the pages of judicial output. Yet the temptation must be resisted, and the parties spared a stiff dose of juris prudential lore about

a principle, which, after all, is the first fundamental imparted to every student of Constitutional Law. Not that a passable excuse would be lacking for such a dissertation. The advent of the Republic, and the consequent finality of our views on constitutional issues, may call for a definition of concepts and attitudes. But surely, there will be time enough, as cases come up for adjudication. Returning to the instant litigation, it presents no more than the questions, whether the Alejandro doctrine still obtains, and whether the admitted facts disclose any features justifying departure therefrom. When the Commonwealth Constitution was approved in 1935, the existence of three coordinate, co-equal and coimportant branches of the government was ratified and confirmed. That Organic Act contained some innovations which established additional exceptions to the well-known separation of powers; for instance, the creation of the Electoral Tribunal wherein Justices of the Supreme Court participate in the decision of congressional election protests, the grant of rule-making power to the Supreme Court, etc.; but in the main, the independence of one power from the other was maintained. And the Convention — composed mostly of lawyers (143 out of a total of 202 members), fully acquainted with the Abueva, Alejandrino and Severino precedents — did not choose to modify their constitutional doctrine, even as it altered some fundamental tenets theretofore well established.1 However, it is alleged that, in 1936, Angara vs. Electoral Commission (63 Phil., 139), modified the aforesaid ruling. We do not agree. There is no pronouncement in the latter decision, making specific reference to the Alejandrino incident regarding our power — or lack of it — to interfere with the functions of the Senate. And three years later, in 1939, the same Justice Laurel, who had penned it, cited Alejandrino vs. Quezon as a binding authority of the separation of powers. (Planas vs. Gil, 67 Phil., 62.) It must be stressed that, in the Angara controversy, no legislative body or person was a litigant before the court, and whatever obiter dicta, or general expressions, may therein found can not change the ultimate circumstance that no directive was issued against a branch of the Legislature or

any member thereof.2 This Court, in that case, did not require the National Assembly or any assemblyman to do any particular act. It only found it "has jurisdiction over the Electoral Commission." (Supra, 63 Phil., 161.) That this court in the Angara litigation made declarations, nullifying a resolution of the National Assembly, is not decisive. In proper cases this court may annul any Legislative enactment that fails to observe the constitutional limitations. That is a power conceded to the judiciary since Chief Justice Marshall penned Marbury vs. Madison in 1803. Its foundation is explained by Justice Sutherland in the Minimum Wage Case (261 U. S., 544).Said the Court: . . . The Constitution, by its own terms, is the supreme law of the land, emanating from the people, the repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand, is the act of an agency of this sovereign authority, and if it conflicts with the Constitution, must fall; for that which is not supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the judicial power, — that power vested in courts to enable them to administer justice according to law. From the authority to ascertain and determine the law in a given case there necessa ruly results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is no effect, and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for such no substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. And the power is now expressly recognized by our Organic Act. (See sections 2 and 10. Article VIII.) But we must emphasize, the power is to be exercised in proper cases, with the appropriate parties.

It must be conceded that the acts of the Chief executive performed within the limits of his jurisdiction are his official acts and courts will neither direct nor restrain executive action in such cases. The rule is non-interference. But from this legal premise, it does not necessarily follow that we are precluded from making an inquiry into the validity or constitutionality of his acts when these are properly challenged in an appropriate legal proceeding. . . . In the present case, the President is not a party to the proceeding. He is neither compelled nor restrained to actin a particular way. . . . This court, therefore, has jurisdiction over the instant proceedings and will accordingly proceed to determine the merits of the present controversy." (Planas vs. Gil., 67 Phil., 62, 73, 74, 76.) (Emphasis ours.) (See also Lopez vs. De los Reyes, 55 Phil., 170.) More about the Angara precedent: The defendant there was only the Electoral Commission which was "not a separate department of the Government" (Vol. 63,p. 160), and exercised powers "judicial in nature." (Supra, p. 184) Hence, against our authority, there was no objection based on the independence and separation of the three coequal departments of Government. Besides, this court said no more than that, there being a conflict ofjurisdiction between two constitutional bodies, it could not decline to take cognizance of the controversy to determine the "character, scope and extent" of their respective constitutional spheres of action. Here, there is actually no antagonism between the Electoral Tribunal of the Senate and the Senate itself, for it is not suggested has adopted a rule contradicting the Pendatun Resolution. Consequently, there is no occasion for our intervention. Such conflict of jurisdiction, plus the participation of the Senate Electoral Tribunal are essential ingredients to make the facts of this case fit the mold of the Angara doctrine. Now, under the principles enunciated in the Alejandrino case, may this petition be entertained? The answer must naturally be in the negative. Granting that the postponement of the administration of the oath amounts to suspension of the petitioners from their office, and conceding arguendo that such suspension is beyond the power of the respondents, who in effect are and acted as the Philippine Senate (Alejandrino vs. Quezon, 46 Phil.,

83, 88),this petition should be denied. As was explained in the Alejandrino case, we could not order one branch of the Legislature to reinstate a member thereof. To do so would be to establish judicial predominance, and to upset the classic pattern of checks and balances wisely woven into our institutional setup. Adherence to established principle should generally be our guiding criterion, if we are to escape the criticism voiced once by Bryce in American Commonwealth thus: The Supreme Court has changed its color i. e., its temper and tendencies, from time to time according to the political proclivities of the men who composed it. . . . Their action flowed naturally from the habits of thought they had formed before their accession to the bench and from the sympathy they could not feel for the doctrine on whose behalf they had contended. (The Annals of the American Academy of Political and Social Science, May, 1936, p. 50.) Needless to add, any order we may issue in this case should, according to the rules, be enforceable by contempt proceedings. If the respondents should disobey our order, can we punish them for contempt? If we do, are we not thereby destroying the independence, and the equal importance to which legislative bodies are entitled under the Constitution? Let us not be overly influenced by the plea that for every wrong there is are medy, and that the judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature may not correct, for instance, those involving political questions. Numerous decisions are quoted and summarized under this heading in 16 Corpus Juris Secundum, section 145. Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for all political and social ills. We should not forget that the Constitution had judiciously allocated the powers of government to three distinct and separate compartments; and that judicial interpretation has tended to the preservation of the dependence of the three, and a zealous regard of the prerogatives of each, knowing full well that one is not the

guardian of the others and that, for official wrong-doing, each may be brought to account, either by impeachment, trial or by the ballot box. The extreme case has been described wherein a legislative chamber, without any reason whatsoever, decrees by resolution the incarceration, for years, of a citizen. And the rhetorical question is confidently formulated. Will this man be denied relief by the courts? Of course not: He may successfully apply for habeas corpus, alleging the nullity of the resolution and claiming for release. But then, the defendant shall be the officer or person, holding him in custody, and the question therein will be the validity or invalidity of resolution. That was done in Lopez vs. De los Reyes, supra. (See also Kilbourn vs. Thompson, 103 U.S. 168; 26 Law. ed., 377, p. 391.) Courts will interfere, because the question is not a political one, the "liberty of citizen" being involved (Kilbourn vs. Thompson, supra) and the act will clearly beyond the bounds of the legislative power, amounting to usurpation of the privileges of the courts, the usurpation being clear, palpable and oppressive and the infringement of the Constitution truly real. (See 16 C.J.S., p. 44.) Nevertheless, suppose for the moment that we have jurisdiction:

Before the organization of the Commonwealth and the promulgation of the Constitution, each House of the Philippine Legislature exercised the power to defer oathtaking of any member against whom a protest had been lodged, whenever in its discretion such suspension was necessary, before the final decision of the contest. The cases of Senator Fuentebella and Representative Rafols are known instances of such suspension. The discussions in the constitutional Convention showed that instead of transferring to the Electoral Commission all thepowers of the House or Senate as "the sole judge of the election, returns, and qualifications of the members of the National Assembly," it was given only jurisdiction over "all contests" relating to the election, etc. (Aruego, The Framing of the Philippine Constitution, Vol. I, p. 271.) The proceedings in the Constitutional Convention on this subject are illuminating: It became gradually apparent in the course of the debates that the Convention was evenly divided on the proposition of creating the Electoral Commission with the membership and powers set forth in the draft. It was growing evident, too, that the opposition to the Electoral Commission was due to rather inclusive power of that body to judge not only of cases contesting the election of the members of the National Assembly, but also of their elections, returns, and qualifications.

B.—PROHIBITION DOES NOT LIE Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of any tribunal, corporation, board, or person, exercising functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the respondents do not exercise such kind of functions, theirs being legislative, it is clear the dispute falls beyond the scope of such special remedy.

Many of the delegates wanted to be definitely informed of the scope of the powers of the Electoral Commission as defined in the draft before determining their final decision; for if the draft meant to confer upon the Electoral Commission the inclusive power to pass upon the elections, returns, and qualifications — contested or not — of the members of the National Assembly, they were more inclined to vote against the Electoral Commission. In an attempt to seek this clarification, the following interpretations took place:

C.—SENATE HAS NOT EXCEEDED POWERS xxx Again let us suppose the question lies within the limits of prohibition and of our jurisdiction.

xxx

xxx

Delegate Labrador.—Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its

own motion does not have the right to contest the election and qualification of its members? Delegate Roxas.—I have no doubt that the gentleman is right. If this right is retained, as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him from that reason. xxx

xxx

xxx

In the course of the heated debates, with the growing restlessness on the part of the Convention, President Recto suspended the session in order to find out if it was possible to arrive at a compromise plan to meet the objection. When the session was resumed, a compromise plan was submitted in the form of an amendment presented by Delegates Francisco, Ventura, Lim, Vinzons, Rafols, Mumar, and others, limiting the power of the Electoral Commission to the judging of all cases contesting elections, returns, and qualifications of members of the National Assembly. Explaining the difference between the amendment thus proposed and the provision of the draft, Delegate Roxas, upon the request of President Recto, said: The difference, Mr. President, consists only in obviating the objection pointed out by various delegates to the effect that the first clause of the draft which states "The election, returns, and qualifications of members of the National Assembly" seems to give to the Electoral commission the power to determine also the election of the members who have not been protested. And in order to obviate that difficulty, we believe that the amendment is right in that sense . . . that is, if we amend the draft so that it should read as follows: "All cases contesting the election, etc.", so that the judges of the Electoral Commission will limit themselves only to cases in which there has been a protest against the returns.

The limitation to the powers of the Electoral Commission proposed in the compromise amendment did much to win in favor of the Electoral Commission many of its opponents; so that when the amendment presented by Delegate Labrador and others to retain in the Constitution the power of the lawmaking body to be the sole judge of the elections, returns, and qualifications of its members was put to a nominal vote, it was defeated by 98 negative votes against 56 affirmative votes. With the defeat of the Labrador amendment, the provision of the draft creating the Electoral Commission, as modified by the compromise amendment, was consequently approved. "All cases contesting the elections, returns and qualifications of the members of the National Assembly shall be judged by an electoral commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief, the Commission to be presided over by one of said justices." In the special committee on style, the provision was amended so that the Chairman of the Commission should be the senior Justice in the Commission, and so that the Commission was to be the sole judge of the election, returns, and qualifications of the members of the National Assembly. As it was then amended, the provision read: "There shall be an Electoral Commission composed of three Justices of the Supreme court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three

by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman.The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly." The report of the special committee on style on the power of the Commission was opposed on the floor of the Convention by Delegate Confesor, who insisted that the Electoral Commission should limit itself to judging only of all contests relating to the elections, returns, and qualifications of the members of the National Assembly. The draft was amended accordingly by the Convention. As it was finally adopted by the Convention, the provision read: There shall be an Electoral Commission . . . The Electoral Commission shall be the sole judge of all contestsrelating to the election, returns, and qualifications of the Members of the National Assembly. (Aruego, The Framing of the Philippine Constitution, Vol. I, pp. 267, 269, 270, 271 and 272.). Delegate Roxas rightly opined that "if this draft is retained" the Assembly would have no power over election and qualifications of its members; because all the powers are by the draft vested in the Commission. The Convention, however, bent on circumscribing the latter's authority to "contests" relating to the election, etc. altered the draft. The Convention did not intend to give it all the functions of the Assembly on the subject of election and qualifications of its members. The distinction is not without a difference. "As used in constitutional provisions", election contest "relates only to statutory contests in which the contestant seeks not only to oust the intruder, but also to have himself inducted into the office."(Laurel on Elections, Second Edition, p. 250; 20 C.J., 58.)

One concrete example will serve to illustrate the remaining power in either House of Congress: A man is elected by a congressional district who had previously served ten years in Bilibid Prison for estafa. As he had no opponent, no protest is filed. And the Electoral Tribunal has no jurisdiction, because there is no election contest. (20 C.J., 58,supra.) When informed of the fact, may not the House, motu propio postpone his induction? May not the House suspend, investigate and thereafter exclude him?3 It must be observed that when a member of the House raises a question as to the qualifications of another, an "election contest" does not thereby ensue, because the former does not seek to be substituted for the latter. So that, if not all the powers regarding the election, returns, and qualifications of members was withdrawn by the Constitution from the Congress; and if, as admitted by petitioners themselves at the oral argument, the power to defer the oath-taking, until the contests is adjudged, does not belong to the corresponding Electoral Tribunal, then it must be held that the House or Senate still retains such authority, for it has not been transferred to, nor assumed by, the Electoral Tribunal. And this result flows, whether we believe that such power (to delay induction) stemmed from the (former) privilege of either House to be judge of the election, returns, and qualifications of the members thereof, or whether we hold it to be inherent to every legislative body as a measure of self-preservation. It is customary that when a number of persons come together to form a legislative body, ". . . the first organization must be temporary, and if the law does not designate the person who shall preside over such temporary organization, the persons assembled and claiming to be members may select one of their number for that purpose. The next step is to ascertain in some convenient way the names of the person who are, by reason of holding the proper credentials, prima facie entitled to seats, and therefore entitled to take part in permanent organization of the body. In the absence of any statutory or other regulation upon this subject, a committee on credentials is usually appointed, to whom all credentials to be entitled to seats. . . . (Laurel on Elections, Second Edition, pp. 356, 357, quoting McCrary on Elections.) Therefore, independently of constitutional or statutory grant, the Senate has, under parliamentary practice, the

power to inquire into the credentials of any member and the latter's right to participate in its deliberations. As we have seen, the assignment by the constitution of the Electoral Tribunal does not actually negative that power — provided the Senate does not cross the boundary line, deciding an election contest against the member. Which the respondents at bar never attempted to do. Precisely, their resolution recognized, and did not impair, the jurisdiction of the Electoral Tribunal to decide the contest. To test whether the resolution trenched on the territory of the last named agency let ask the question: May the Electoral Tribunal of the Senate order that Body to defer the admission of any member whose election has been contested? Obviously not. Then it must be conceded that the passage of the disputed resolution meant no invasion of the former's realm. At this juncture the error will be shown of the contention that the Senate has not this privilege "as a residuary power". Such contention is premised on the proposition that the Houses of the Philippine Congress possess only such powers as are expressly or impliedly granted by the Constitution. And an American decision is quoted on the powers of the United States Congress. The mistake is due to the failure to differentiate between the nature of legislative power under the Constitution of the United States, and legislative power under the State Constitutions and the Constitution of the Commonwealth (now the Republic). It must be observed that the Constitution of the United States contains only a grant or delegation of legislative powers to the Federal Government, whereas, the other Constitutions, like the Constitution of the Commonwealth (now the Republic), are limits upon the plenary powers of legislation of the Government. The legislative power of the United States Congress is confined to the subject on which it is permitted to act by the Federal constitution. (Dorr vs. United States, 195 U. S., 140; Martin vs. Hunter, 1 Wheat., 326; McCullock vs. Maryland, 4 Wheat., 405; United States vs. Cruikshank, 92 U.S., 551.) The legislative power of the Philippine Congress is plenary, subject only to such limitations, as are found in the Republic's Constitution. So that any power, deemed to be legislative by usage and tradition, is necessarily possessed by the Philippine Congress, unless the Organic Act has lodged it elsewhere. Another line of approach. The Senate, as a branch of the legislative department, had the constitutional power to

adopt rules for its proceedings(section 10 [3], Article VI of the Constitution), and by legislative practice it is conceded the power to promulgate such orders as may be necessary to maintain its prestige and to preserve its dignity.4 We are advised by the respondents that, after weighing the propriety or impropriety of the step, the Senate, in the exercise of its authority and discretion and of its inherent power of self-preservation, resolved to defer the administration of oath and the sitting of the petitioners pending determination of the contest. It is not clear that the measure had no reasonable connection with the ends in view, and neither does it palpably transcend the powers of the public deliverative body. On the contrary, there are reasons to believe it was prompted by the dictates of ordinary caution, or of public policy. For, if, as reported by the corresponding constitutional agency, concededly wellposted on the matter by reason of its official duties, the elections held in the Provinces of Pampanga, Bulacan, Tarlac, and Nueva Ecija were so tainted with acts of violence and intimidation, that the result was not the legitimate expression of the voters' choice, the Senate made no grievous mistake in foreseeing the probability that, upon proof of such widespread lawlessness, the Electoral Tribunal would annull the returns in that region (see Gardiner vs. Romulo, 26 Phil., 521; Laurel, Elections [2d ed.], p. 488 et seq.), and declare herein petitioners not entitled to seats in the Senate. Consequently, to avoid the undesirable result flowing from the participation of disqualified members in its deliberations, it was prudent for it to defer the sitting of the respondents. True, they may have no direct connection with the acts of intimidation; yet the votes may be annulled just the same, and if that happens, petitioners would not among the sixteen senators elected. Nor was it far-fetched for the Senate to consider that "in order to maintain alive the respect for democratic institutions among our people, no man or group of men (should) be permitted to profit from the results of an election held under coercion, in violation of law and contrary to the principle of freedom of choice which should underlie all elections under the Constitution." (Exhibit A of petitioners' complaint.) a. Justices in the Electoral Tribunals During our deliberations, it was remarked that several justices subscribing the majority opinion, belong to the electoral tribunals wherein protests connected with the Central Luzon polls await investigation. Mulling over this,

we experience no qualmish feelings about the coincidence. Their designation to the electoral tribunals deducted not a whit from their functions as members of this Supreme Court, and did not disqualify them in this litigation. Nor will their deliverances here at on a given question operate to prevent them from voting in the electoral forum on identical questions; because the Constitution, establishing no incompatibility between the two roles, naturally did not contemplate, nor want, justices opining one way here, and thereafter holding otherwise, pari materia, in the electoral tribunals, or viceversa. Anyhow, these should be no diversity of thought in a democratic country, at least, on the legal effects of the alleged rampant lawlessness, root and basis of the Pendatun Resolution. However, it must be observed and emphasized, herein is no definite pronouncement that terrorism and violenceactually prevailed in the district to such extent that the result was not the expression of the free will of the electorate. Such issue was not tendered in these proceedings. It hinges upon proof to be produced by protestants and protestees at the hearing of the respective contests. b. Doubt and presumption. After all is said or written, the most that may be conceded to the industry of petitioners' counsel is that the Senate power, or lack of power, to approve the resolution is not entirely clear. We should, therefore, indulge the presumption that official duty has been performed regularly, (Rule 123, section 69, Rule of Court), and in the right manner: It is a general principle to presume that public officers act correctly until the contrary is shown. United States vs. Weed, 5 Wall., 62. It will be presumed, unless the contrary be shown, that a public officer acted in accordance with the law and his instructions. Moral y

Gonzales vs. Ross (Gonzales vs. Ross), 120 U.S., 605; 7 Sup. Ct. Rep., 705.

Aruego,supra, and of others — have persuasive force. (Op. cit., p. 55.)

Officers charged with the performance of a public duty are presumed to perform it correctly. Quinlan vs. Greene Country, 205 U.S., 410; 27 Sup. Ct. Rep., 505. (United State Supreme Court Reports Digest, Vol. 5, p. 3188.)

But their personal opinion on the matter at issue expressed during our deliberations stand on a different footing: If based on a "fact" known to them, but not duly established or judicially cognizable, it is immaterial, and their brethren are not expected to take their word for it, to the prejudice of the party adversely affected, who had no chance of rebuttal. If on a matter of legal hermeneutics, their conclusions may not, simply on account of membership in the Convention, be a shade better, in the eyes of the law. There is the word "deference" to be sure. But deference is a compliment spontaneously to be paid — never a tribute to be demanded.

It is presumed that the legislature has acted within its constitutional powers. (See cases cited at p. 257, 16 C.J.S., note 1.) And should there be further doubt, by all the maxims of prudence, left alone comity, we should heed the off-limits sign at the Congressional Hall, and check the impulse to rush in to set matters aright — firm in the belief that if a political fraud has been accomplished, as petitioners aver, the sovereign people, ultimately the offended party, will render the fitting verdict — at the polling precints. c. Membership in the Constitutional Convention The theory has been proposed — modesty aside — that the dissenting members of this Court who were delegates to the Constitutional Convention and were "co-authors of the Constitution" "are in a better position to interpret" that same Constitution in this particular litigation.

And if we should (without intending any disparagement) compare the Constitution's enactment to a drama on the stage or in actual life, we would realize that intelligent spectators or readres often know as much, if not more, about the real meanings, effects or tendency is of the event, or incidents thereof, as some of the actors themselves, who sometimes become so absorbed in fulfilling their emotional roles that they fail to watch the other scenes or to meditate on the larger aspects of the whole performance, or what is worse, become so infatuated with their lines as to construe the entire story according to their prejudices or frustrations. Perspective and disinterestedness help certainly a lot in examining actions and occurrences.

There is no doubt that their properly recorded utterances during the debates and proceedings of the Convention deserve weight, like those of any other delegate therein. Note, however, that the proceedings of the Convention "are less conclusive of the power construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. (Willoughby on the Constitution, Vol. I, pp. 54, 55.)

Come to think of it, under the theory thus proposed, Marshall and Holmes (names venerated by those who have devoted a sizable portion of their professionals lives to analyzing or solving constitutional problems and developments) were not so authoritative after all in expounding the United States Constitution — because they were not members of the Federal Convention that framed it!

Their writings (of the delegates) commenting or explaining that instrument, published shortly thereafter, may, like those of Hamilton, Madison and Jayin The Federalist — here in the Philippines, the book of Delegate

Quoting section 12 of Commonwealth Act No. 725, counsel for petitioners assert that it was respondents' duty legally inescapable, to permit petitioners to assume office

D.—ALLEGED DUTY OF RESPONDENTS

and take part in the current regular session. The section reads partly: The candidates for Member of the House of Representatives and those for Senators who have been proclaimed elected by the respective Board of Canvassers and the Commission on Elections shall assume office and shall hold regular session for the year nineteen hundred and forty-six on May twenty-five, nineteen hundred and forty-six. (Section 12, Commonwealth Act. No. 725.) We have carefully considered the argument. We opine that, as contended by the Solicitor-General, this provision is addressed to the individual member of Congress, imposing on him the obligation to come to Manila, and join his colleagues in regular session. However, it does not imply that if, for any reason, he is disqualified, the House is powerless to postpone his admission. Suppose that after elections a member is finally convicted of treason. May not the House refuse him outright admission, pending an investigation (by it or the Electoral Tribunal as the case may be) as to his privilege to sit there? Granting the right to admission as the counterpart of the duty to assume office by virtue of said section 12; we must nevertheless allow that such rights would not be peremptory whenever it contacts other rights of equal or superior force. To illustrate: if the law provided that all children, seven years or more "shall go to school", it can not reasonably be inferred that school authorities are bound to accept every seven-year boy, even if he refuses to pay fees, or to present the certificates required by school regulations. Furthermore, it would not be erroneous to maintain that any right spelled out of section 12 must logically be limited to those candidates whose proclamation is clear, unconditional and unclouded, and that such standard is not met by the petitioners, because in the very document attesting to their election one member of the Commission on Elections demurred to the non-exclusion of the votes in Central Luzon, calling attention to the reported reign of terror and violence in that region, and virtually objecting to the certification of herein petitioners. To be sure, it was the beclouded condition of petitioner's credential (certificate of canvass) that partly prompted the Senate to enact the precautionary measure herein complained of. And finding

no phrase or sentence in the Constitution expressly or impliedly outlawing the step taken by that legislative body, we should be, and we are, reluctant to intervene. Indeed, had the Senate been officially informed that the inclusion of petitioners' name in the Commission's certificate had been made at the point of a gangster's automatic, none will deny the appositeness of the postponement of their induction, pending an inquiry by the corresponding authorities. Yet the difference between such situation and the instant litigation is one of degree, broad and wide perhaps, but not altering the dominant legal principle. In answer to the suggestions as to abuse of the power it should be stated that the mere possibility of abuse is no conclusive argument against the existence of the power, of the power, for the simple reason that every official authority is susceptible of misuse. And everybody knows that when any people will discover the methods to curb it. Perhaps it is necessary to explain that this decision goes no further than to recognize the existence of Congressional power. It is settled that the point whether such power has been wisely or correctly exercised, is usually beyond the ken of judicial determination. E.—PARLIAMENTARY PRIVILEGES One final consideration. The Constitution provides (Article VI, section 15) that "for any speech or debate" in congress, Senators and congressmen "shall not be questioned in any other place." The Supreme Court of the United States has interpreted this privilege to include the giving of a vote or the presentation of a resolution. . . . It would be a narrow view of the constitutional provision to limit it towards spoken in debate. The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, . . . (Kilbourn

vs. thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.) In the above case, Kilbourn, for refusing to answer questions put to him by the House of Representatives of the United States Congress, concerning the business of a real estate partnership, was imprisoned for contempt by resolution of the house. He sued to recover damages from the sergeant at arms and the congressional members of the committee, who had caused him to be brought before the house, where he was adjudged to be in contempt. The Supreme Court of the United States found that the resolution of the House was void for want of jurisdiction in that body, but the action was dismissed as to the members of the committee upon the strength of the herein abovementioned congressional immunity. The court cited with approval the following excerpts from an earlier decision of the Supreme Court of Massachusetts: These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. . . (103 U.S., 203.) (Emphasis ours.) Commenting on this Congressional privilege, Willoughby relates apparently as controlling, the following incident: In 1910, several Members of Congress having been served with a writ of mandamus in a civil action brought against them as members of the Joint Committee on Printing and growing out a refusal of a bid of the Valley Paper Company, for the furnishing of paper, the Senate resolved that the Justice issuing the writ had "unlawfully invaded the constitutional privileges and prerogatives of the Senate of the United States and of three Senators; and was without jurisdiction to grant the rule, and Senators are directed to make no appearance in response

thereto." (Willoughby on the Constitution of the United States, Vol. I, Second Edition, p. 616.) Respondents are, by this proceeding, called to account for their votes in approving the Pendatum Resolution. Having sworn to uphold the Constitution, we must enforce the constitutional directive. We must not question, nor permit respondents to be questioned here in connection with their votes. (Kilbourn vs. Thompson, supra.)

adopting any other ulterior procedure to execute the said resolution." 1. Has this court power to issue the writ of preliminary injunction sought by petitioners under the facts alleged in their complaint? The power of this court to issue auxiliary writs and process is defined in, and conferred by, section 19 of Act No. 136, as follows:

Case dismissed. No costs. Moran, C J., Paras, Pablo, and Padilla, JJ., concur.

Separate Opinions HILADO, J., concurring: I concur. Petitioners, alleging that they have been elected Senators in the last national elections, have filed this proceeding against respondents who, according to the complaint, have been likewise elected Senators in the same elections. In paragraph III of the complaint it is alleged that respondent Hon. Jose A. Avelino is joined in this proceeding as member and President of the Senate. Two kinds of remedies are sought by petitioners, one ancillary and the other principal. The ancillary they would have consist in a preliminary injunction addressed to "respondents, their officials, employees, agents and other persons acting under them, ordering them", until the order is remanded by the court, "to desist and to abstain from carrying out" the so-called Pendatun Resolution complained of. (Exhibit A attached to complaint.) The principal remedy, if the suit is to prosper, would be as follows: a judicial declaration that the said resolution is entirely null and void, a definite order of this court prohibiting respondents, and each of them, from preventing petitioners from "continuing in their seats in the Senate of the Philippines and freely exercising their office as Senators, and likewise prohibiting them from

Sec. 19. Power to issue all necessary auxiliary writs.—The Supreme Court shall have power to issue writs ofcertiorari and all other auxiliary writs and process necessary to the complete exercise of its original or appellate jurisdiction. Under this provision, such auxiliary writ or process as the writ of preliminary injunction prayed for by petitioners in the instant case, is only issuable by this court is engaged in the exercise of its original (or appellate) jurisdiction in a main case, and secondly, when such writ or process is necessary to a complete exercise of that jurisdiction. This principle is ingrained in and underlies the pertinent provisions of the present Rules of Court (Rule 60). Indeed, it is elementary that an independent action cannot be maintained merely to procure a preliminary injunction as its sole objective. (Panay Municipal Cadastre vs. Garduño and Soncuya, 55 Phil., 574.) Besides, there are other grounds for holding that this court lacks jurisdiction to issue the writ of preliminary injunction prayed for by petitioners. It is clear that the rights sought to be exercised or protected by petitioner through this proceeding are political rights and the questions raised are political questions, and it is well settled that the equitable remedy of injunction is not available for such a purpose. The principle has also been incorporated in the rule that a court of chancery will not entertain a suit calling for a judgement upon a political question, and of course this court has been resorted to in the instant case as a court of equity in so far as injunctive relief is being sought. In the case of Flethcer vs. Tuttle (151 Ill., 41; 25 L.R.A., 143,146), the definitions of a political right by Anderson defines a political right as a "right exercisable in the administration of government" (Anderson Law Dictionary,

905). And Bouvier says: "Political rights consist in the power to participate, directly or indirectly, in the establishment or management of the government." (2 Bouvier's Law Dictionary, 597.) xxx

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. . . The prayer of the bill is that, upon the hearing of the cause, both acts be declared unconstitutional and void, and held to be of no effect; and that a writ of injunction issue to Walter C. Tuttle, county clerk of Vermilion county, restraining him from issuing, or causing to be posted, notices of election calling an election for the house of representatives for the eighteenth senatorial district; and that such injunction be made perpetual; and that the court grant to the petitioner and to the people all such other and further relief as the case demands. xxx

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From the foregoing statement of these two bills, it seems to be perfectly plain that the entire scope and object of both is the assertion and protection of political, as contradistinguished from civil, personal or property rights. In both the complainant is a legal voter, and a candidate for a particular elective office; and by his bill he is seeking the protection and enforcement of his right to cast his own ballot in a legal and effective manner, and also his right to be such candidate, to have the election called and held under the provisions of a valid law, and to have his name printed upon the ballots to be used at such election, so that he may be voted for in a legal manner. The rights thus asserted are all purely political; nor, so far as this question is concerned, is the matter aided in the least by the attempt made by the complainant in each bill to litigate on behalf of other voters or of the people of the state generally. The claims thus attempted to be set up are all of the same nature, and are none the less political.

As defined by Anderson, a civil right is "a right accorded to every member of a district community, or nation," while a political right is a "right exercible in the administration of government." Anderson, Law Dictionary, 995. Says bouvier: "Political rights consist in the power to participate, directly or indirectly, in the establishment or management of the government. These political rights are fixed by the constitution. Every citizen has the right of voting for public officers, and of being elected. These are the political rights which the humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. They consist in the power of acquiring and enjoying property, or exercising the paternal or marital powers, and the like. It will be observed that every one, unless deprived of them by sentence of civil death, is in the enjoyment of the civil rights, which is not the case with political rights; for an alien, for example, has no political, although in full enjoyment of the civil rights." (2 Bouvier Law Dict., 597.) . . . A preliminary injunction having been awarded, it was disregarded by the city officers, who proceeded, notwithstanding, to canvass the vote and declare the result. Various of the city officers and their advisers were attached and fined for contempt, it was held that the matter presented by the bill was a matter over which a court of chancery had no jurisdiction, and that the injunction was void, so that it violation was not an act which subjected the violators to proceedings for contempt. . . . In Georgia vs. Stanton (73 U. S., 6 Wall., 50; 18 Law. ed., 721), a bill was filed by the state of Georgia against the secretary of war and other officers representing the executive authority of the United States, to restrain them in the execution of the acts of congress known as the "Reconstruction Acts," on the ground that the enforcement of those acts would annul and totally abolish the existing state government of the state, and establish another and different one in its place, and would, in effect, ovewrthrow

and destroy the corporate existence of the state, by depriving it of all means and instrumentalities whereby its existence might and otherwise would be maintained; and it was held that the bill called for a judgement upon a politicalquestion, and that it would not therefore be entertained by a court of chancery; and it was further held that the character of the bill was not changed by the fact that, in setting forth the political rights sought to be protected, it averred that the state had real and personal property, such, for example, as public buildings, etc., of the enjoyment of which, by the destruction of its corporate existence, the state would be deprived, such averment not being the substantial ground of the relief sought. (Flethcer vs. Tuttle, 151 Ill., 41; 25 L.R.A., 143, 145-147; (emphasis supplied.) Section 381. 3. Political Questions.—a. in General.—It is well-settled doctrine that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred on the courts by express constitutional or statutory provisions. It is not easy, however, to define the phrase "political question," nor to determine what matters fall within its scope of the judicial power. More properly, however, it means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. Among the questions that have been held to be political, and therefore beyond the province of the judiciary to decide, are: Questions relating to the existence orlegality of the government under which the court is acting; what persons or organizations constitute the lawful government of a state of the Union, or of a foreign country; . . . the canvass of an election. (12 C.J., 878, 879; emphasis supplied.) SECTION 20. 4. Only Civil Rights Protected.— The subject matter of equitable jurisdiction being civil property and the maintenance of civil rights, injunction will issue only in cases where

complainant's civil rights have been invaded. Injunctions do not issue to prevent acts merely because they are immoral, illegal, or criminal. Courts of equity have no jurisdiction over matters or questions of a political nature unless civil property rights are involved and will not interfere to enforce or protect purely political rights, . . . (32 C. J., 41; emphasis supplied.) But petitioners seem to proceed upon the theory that there is a main case here to which the preliminary injunction would be merely auxiliary — one of prohibition, presumably under Rule 67, sections 2, 4, and 7. Rule 67, section 2, omitting impertinent parts, says: Sec. 2. Petition for prohibition.—When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial . . . To begin with, respondents herein cannot in any rational sense be said to constitute a "tribunal, corporation, board, or person . . . exercising functions judicial or ministerial." To be sure, the functions of the Senate and of its members in the premises are not judicial. It is no less certain, in my opinion, that they are not ministerial. Indeed, they are not only legislative but discretionary in the highest sense, as more at length demonstrated hereafter. It is insisted, however, that the provisions of section 12 of Commonwealth Act No. 725 imposed upon respondents the ministerial duty of letting petitioners assume office and participate in the regular session for the year 1946 on May 25, 1946. But, as in my opinion correctly contended by the Solicitor General at the argument, this provision is addressed to the members of both Houses of Congress who are to assume office and hold regular session. Altho to this, some who opine differently from us, may counter with the question: What is the use of imposing upon said members the ministerial duty to assume office and hold the session if either House or other members thereof could prevent them from doing so? In the first place, I would not say that, considering together, as we should, the report of the Commission on Elections to the President of the Senate of May 23, 1946 (Exhibit B), and the certificate of canvass of the same date (Exhibit C), said Commission

"proclaimed elected" those candidates whose election may be adversely affected by the Commission's own express reservation as to the validity or invalidity of the votes cast in the Provinces of Pampanga, Bulacan, Tarlac, and Nueva Ecija, in the same sense that they proclaimed elected those not so affected — it would seem that the proclamation made in Exhibit C was based merely upon a numerical canvass or count of the votes cast, the Commission considering itself without authority to discount the votes cast in said four provinces, leaving that question to the Electoral Tribunal for the Senate; and it would seem further, that within the meaning and intent of section 12 of Commonwealth Act No. 725 the phrase "candidates . . . proclaimed elected," rationally construed, is exclusive of those of whose valid election the Commission is the first, in effect, to express very grave doubts. As to these, considering the Commission's report and certificate of canvass together, the Commission, in final effect, far from proclaiming them elected, confesses that it does not really know whether they have been or not. In the second place, Ido not admit that any such ministerial duty is imposed upon the members of Congress in the sense that its fulfillment may be compelled by mandamus issuing from the judiciary. In the third place, if we were to concede that the intention of the law is as petitioners contend it to be, that is, that it imposes upon both Houses of Congress and upon the members thereof who legitimately act for them, the ministerial duty of letting even those members, as to whom there exist grounds for suspension, assume office and participate in the Houses' deliberations, I am of the considered opinion that the provisions would be null and void for the simple reason that it would be destructive of, and repugnant to, the inherent power of both Houses to suspend members for reasons of self-preservation or decorum. I say null and void, because the principle underlying said inherent power is ingrained in the very genius of a republican and democratic government, such as ours, which has been patterned after that of the United States, and therefore lies at the very foundation of our constitutional system. It was admitted at the argument that when both legislative chambers were the sole judges of the election, returns and qualifications of its members, each chamber possessed such inherent power of suspension, particularly as against members whose election was the subject of contest. When the Commonwealth Constitution transferred to the Electoral Tribunal for each chamber the jurisdiction as sole judge of all contests relating to the elections, returns and qualifications of its members, without any provision as to

said power of suspension, the clear inference is that the same was left intact, to remain where it was inherent. And certainly the framers should not be presumed to have silently intended to abrogate and take away a power so vital and so essential. Coming now more fundamentally to the alleged main case presented by the complaint. As stated at the outset, the principle remedy pursued by petitioners, if this suit is to prosper, and therefore the main case which they seem to allege as justifying the ancillary remedy of preliminary injunction, would be concerned with a judicial declaration by this court that the so-called Pendatun Resolution is entirely null and void, with a definite order of this court prohibiting respondents, and each of them, from preventing petitioners "from continuing in their seats in the Senate of the Philippines and freely exercising their functions as Senators, and likewise prohibiting them form adopting any other ulterior procedure to execute the said resolution." This immediately brings to the fore the vital and serious question of whether this court has jurisdiction to grant the remedy thus prayed for by giving final judgment making the said judicial declaration of nullity and granting the writ prohibition definitely prohibiting the respondent President of the Senate and respondent senators from executing the above specified acts. Such fundamental principle as the separation of powers, as well as the exclusive jurisdiction of the Electoral Tribunal for the Senate of all contests relating to the election, returns and qualifications of its members, are involved. Our Constitution and laws will be scanned and searched in vain for the slightest hint of an intention to confer upon the courts, including the Supreme Court, the power to issue coercive process addressed to, or calculated to control the action of, either of the other two coordinate departments of the government — the legislative whose power is vested in the Congress, consisting of the Senate and the House of Representatives (Constitution, Article VII, section 1), concerning matters within the sphere of their respective functions. Besides, if we had jurisdiction to issue the writ of preliminary injunction, it must be upon the ground that prima facie the facts alleged in the complaint are sufficient to justify the writ. In that case, we must have the power to make said injunction final if upon a trial on the

merits we find those facts proven. (Rule 60, section 10.)But since such a permanent or perpetual writ would have to be premised upon the determination that petitioners have been legally and validly elected, which question is beyond our power to decide, it is clear that we lack jurisdiction to issue even the preliminary process. And be it not contended that our preliminary writ is simply to serve while the contest has not been decided by the Electoral Tribunal, because under Act No. 136, section 19, and Rule 60, sections 2 and 3, this court can issue such a process in aid only of its own jurisdiction of another tribunal — and it is unthinkable that the Supreme Court should be made to serve as a sort of auxiliary court to the Electoral tribunal. 2. Has this court jurisdiction of the subject matter of the alleged main case and, consequently, to grant the alleged principal remedy? The judicial declaration of nullity sought by petitioners, severed from the writ of prohibition prayed for by them, would become, if at all, nothing more nor less than a declaratory relief. Thus divorced from a remedy of prohibition, it will be a mere abstract pronouncement of an opinion of this court regarding the constitutionality or unconstitutionality of the Pendatun Resolution, giving rise to no substantial relief or positive remedy of any kind. It will order nothing and will prohibit nothing to be done by one party or the other. But not even as such declaratory relief can said judicial declaration be considered under Rule 66, nor its antecedents, Act No. 3736 Commonwealth Act No. 55, since the Pendatun Resolution is neither a "deed, will, contract or other written instrument . or a statue or ordinance," within the plain and natural meaning of said rule and said acts, aside from the reason that pursuant to the same acts the action for a declaratory judgment should be brought in a Court of First Instance, without any express provision conferring original jurisdiction upon this court in such cases, which provision is necessary before this court can possess such original jurisdiction (Act No. 136, section 17), and the final consideration that alike under said Act No. 3736 and Rule 66, section 6, the court has a discretion to refuse to exercise the power to construe instruments, among other cases, where the construction is not necessary and proper at the time under all circumstances. In the case of Alejandrino vs. Quezon (46 Phil., 83,95), this court, referring to a case ofmandamus, said:

. . . On the one hand, no consideration of policy or convenience should induce this court to exercise a power that does not belong to it. On the other hand, no consideration of policy or convenience should induce this court to surrender a power which it is its duty to exercise. But certainly mandamus should never issue from this court where it will not prove to be effectual and beneficial. It should not be awarded where it will create discord and confusion. It should not be awarded where mischievous consequences are likely to follow. Judgment should not be pronounced which might possibly lead to unseemly conflicts or which might be disregarded with impunity. This court offer no means by a decision for any possible collision between it as the highest court in the Philippines and the Philippine Senate as a branch of coordinate department, or between the court and the Chief Executive or the Chief Executive Legislature. (Emphasis supplied.) It is true that the Alejandrino case was one of mandamus. But under the principle of separation of powers, the rule is equally applicable to cases of injunction--in fact, to all cases where it is desired to have the judiciary directly control the action of either the executive or legislative department, or either branch of the latter, concerning matters within their respective province. Moreover, not much scrutiny is required to see that what is here pursued is, in practical effect, an order of this tribunal commanding the Senate or respondents, who represent it, to allow the petitioners to remain seated in the Senate and freely exercise their alleged functions and rights as Senators: for no other is the effect of an order prohibiting the Senate or said respondents from preventing petitioner's from remaining thus seated and exercising said functions and rights. Looking thru the form to the substance, the petition is really one of mandamus. As the writ of prohibition, the complaint asks this court, after trial on the merits, to enjoin respondents and each of them from preventing petitioners from continuing seated in the Senate and freely exercising the functions of Senators, and likewise, from adopting any other ulterior proceeding in execution of the resolution in question. The writ thus sought would, if granted, be definite and final in its effects. (Rule 67, sections 2, 8, and 9.) Such a writ of prohibition

would necessarily be perpetual or permanent in character and operation, in the same way that a final injunction under Rule 60, section 10, would permanently enjoin the act complained of and perpetually restrain the defendant from the commission or continuance of such act. It would enjoin respondents from preventing petitioners from acting as members of the Senate in exactly the same way and with exactly the same rights and privileges as the other members whose election is unchallenged and uncontested, not only temporarily but for the entire term of the office. But for this court to so order, it would necessarily have to base its judgment and decree upon the premise that petitioners have been duly and validly elected as members of the Senate. This would inevitably involve a determination of precisely the question, presently contested before the Electoral Tribunal for the Senate, as sole judge under the Constitution, of whether or not said petitioners have been duly and validly elected as Senators. This clearly would be an unconstitutional invasion of the sphere allotted by the fundamental law to said Electoral Tribunal as the sole judge of all contests relating to the election, returns and qualifications of the members of the Senate. All of which means that this court cannot constitutionally possess jurisdiction over the alleged main case of prohibition. This is another way of saying that petitioners are not entitled to the principal remedy thus sought by them from this Court. Sec. 17 (2). Prima Facie Case.—While it is not a ground for refusing a preliminary injunction that is not absolutely certain that complainant has the right to relief, yet to authorize a temporary injunction, complain must make out at least a prima facie showing the right to the final relief. (32 C. J.,38 ; emphasis supplied.) Reason for rule.—The injunction pendente lite can be justified only upon theory that it is necessary incident to the granting of such final relief as complainants appear to be entitled to. The right to such final relief must appear; if not, the allowance of an injunction is erroneous. Amelia Milling Co. vs. Tennessee Coal, etc., R. Co. (123 Fed., 811, and other cases cited.) (32 C. J., 39 under note 76 beginning on p. 38; emphasis supplied.)

Finally, we come to the great principle of separation of powers. In the case of Alejandrino vs. Quezon, supra, this court said (pp. 88, 89): There are certain basic principles which lie at the foundation of the Government of the Philippine Islands, which are familiar to students of public law. It is here only necessary to recall that under our system of government, each of the three departments is distinct and not directly subject to the control of another department. The power to control is the power to abrogate and the power to abrogate is the power to usurp. . . xxx

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. . . Mandamus will not lie against the legislative body, its members, or its officers, to compel the perfromance of duties purely legislative in their character which therefore pertain to their legislative functions And over which they have exclusive control. The courts cannot dictate action in this respect without a gross usurpation of power. So it has been held that where a member has been expelled by the legislative body, the courts have no power, irrespective of whether the expulsion was right or wrong, to issue a mandate to compel his reinstatement. If mandamus will not lie to compel the performance of purely legislative duties by the legislature, its members, or its officers, how can, under the same principle, injunction or prohibition lie to enjoin or prohibit action of the Legislature, its members, or its officers, in regard to matters pertaining to their legislative functions and over which they have exclusive control? And if the courts are powerless to compel reinstatement of an expelled member of the legislative body, it seems inconceivable that under the same system of government the courts should possess jurisdiction to prohibit the expulsion in the first instance. And if the courts cannot interfere to prevent such expulsion, a fortiori they should lack authority to intervene to prevent a mere suspension, which is a less drastic measure against the member. If the expulsion of a member of the Senate is purely a legislative question, as clearly decided in the Alejandrino case, the supension of a

member of the same body must equally be of the same nature. In the same case this court, in remarking that some of the cases cited therein related to the chief executive rather than to the legislature, said that the rules which govern the relations of the courts to the chief executive likewise govern the relations of the courts to the legislature. In Mississippi vs. Johnson and Ord (4 Wall., 475), a bill was filed praying the United States Supreme Court to enjoin Andrew Johnson, President of the United States, and E. O. C. Ord, General Commanding in the District of Mississipi and Arkansas from executing certain acts of Congress. The court, per chief Chief Justice Chase, said that the single point for consideration was: Can the President be restrained by injunction from carrying into effect an Act of Congress alleged to the be unconstitutional? It continued: The Congress is the Legislative Department of the government; the President is the Executive Department.Neither can be restrained in its action by the Judicial Department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of the Congress, is it not clear that a collision may occur between the Executive and Legislative Departments of the Government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a

court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this court to arrest proceedings in that court? These questions answer themselves. xxx

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. . . we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that such bill ought to be received by us. It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson, if relief against its execution by the President. . . In the case of Sutherland vs. Governor of Michigan (29 Mich., 320), Justice Cooley, speaking for the Supreme Court of Michigan, had the following to say: . . . Our government is one whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. xxx

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It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. . . . But in each of these cases the action of the department which controls, modifies, or in any manner influences

that of another, is had strictly within its own sphere, and for that reason gives no occassion for conflict, controversy or jealousy. The Legislative in prescribing rules for the courts, is acting within its proper province in making laws, while the courts, in declining to enforce an unconstitutional law, are in like manner acting within their proper province, because they are only applying that which is law to the controversies in which they are called upon to give judgment. It is mainly by means of these checks and balances that the officers of the several departments are kept within their jurisdiction, and if they are disregarded in any case, and power is usurped or abused, the remedy is by impeachment, and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the constitution is its equal. It has long been a maxim in this country that the Legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the Legislature could in like manner override executive action also, the government would become only a despotism under popular forms. On the other hand it would be readily conceded that no court can compel the Legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist. xxx

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It is not attempted to be disguised on the part of the relators that any other course than that which leaves the head of the executive department to act independently in the

discharge of his duties might possibly lead to unseemly conflicts, if not something worse, should the courts undertake to enforce their mandates and the executive refuse to obey. . . . And while we should concede, if jurisdiction was plainly vested in us, the inability to enforce our judgment would be no sufficient reason for failing to pronounce it, especially against an officer who would be presumed ready and anxious in all cases to render obedience to the law, yet in a case where jurisdiction is involved in doubt it is not consistent with the dignity of the court to pronounce judgments which may be disregarded with impunity, nor with that of the executive to place him in position where, in a matter within his own province, he must act contrary to his judgment, or stand convicted of a disregard of the laws. In the same case of Alejandrino vs. Quezon (supra), we find the following quotation from French vs. Senate of the State of California (146 Cal., 604): Even if we should give these allegations their fullest force in favor of the pleader, they do not make a case justifying the interposition of the court. Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. . . . From the case of Masachusetts vs. Mellon (262 U.S., 447; 67 Law. ed., 1078, 1084), we quote the following passage: . . . If an alleged attempt by congressional action to annul and abolish an existing state government, "with all its constitutional powers and privileges," presents no justifiable issue, as was ruled in Geogia vs. Stanton, supra, no reason can be suggested why it should be otherwise where the attempt goes farther, as it is here alleged, than to propose to share with the state the field of state power.

In our case the Senate action through the Pendatun Resolution and the acts alleged to have been performed thereunder, are still less transcendental in comparison to those involved in Georgia vs. Stanton (supra), and Massachusetts vs. Mellon (supra), as should be obvious to every one. In the case of Barry vs. United States ex rel. Cunningham (279 U.S., 597; 73 Law ed., 867, 872), the Federal Supreme Court was concerned with a case where the United States Senate, pending the adjudication of the validity or nullity of the election of William S. Vare as Senator, refused acceptance of his credentials consisting of the returns, upon the face of which he had been elected, and a certificate form the Governor of the State to that effect, and refused to administer the oath of office to him, and to accord the full right to participate in the business of the Senate. It was held that all this "was a matter within the discretion of the Senate." This is strikingly similar to the instant case where the Senate of the Philippines, which I maintain retained it inherent power of suspension after the transfer to the Electoral Tribunal for the Senate for its exclusive jurisdiction to judge contests relating to the election, returns and qualifications of its members, deemed it to be necessary or convenient to suspend the administration of oath to petitioners, their seating in the Senate and their participation in its deliberations, pending final decision by said Electoral Tribunal of the contest concerning their election, which matters were in my opinion within the discretion of said Senate. In the case of Masachusetts vs. Mellon (supra), the Supreme Court of the United States concluded its decision in these words: . . . Looking through forms of words to the substance of their complaint, it is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department — an authority which plainly we do not possess.

Strikingly similar, our case is one wherein the substance of the complaint is merely that respondents President and Members of the Philippine Senate have executed and will execute a resolution of the body asserted to be unconstitutional; and this we are asked to prevent, to paraphrase the Federal Supreme Court. I could not do better than make mine the conclusion of that High Tribunal that rather than a judicial controversy which we are asked to decide, it is a position of authority over the governmental acts of another and co-equal department which we are asked to assume — an authority which plainly we do not possess. In the adjudicated cases, it has often been said that in actual and appropriate controversies submitted to the courts the judiciary has the constitutional power to declare unconstitutional any legislative or executive act which violates the Constitution; thus, in the case of Angara vs. Electoral Commission (63 Phil., 139, 182), the fourth conclusion established by this court was as follows: xxx

xxx

xxx

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority. (Emphasis supplied.) But I am of the considered opinion that, aside from such writs, as that of habeas corpus, as may be guaranteed in the Constitution, all others of a purely statutory origin and coersive in their operation are not issuable by the judiciary against either of the other coordinate and co-equal departments. In the latter cases, I think the function of the judiciary, with the Supreme Court as the final arbiter, does not go beyond the declaration of constitutionality or unconstitutionality of the legislative or executive act assailed. But some would ask how such a judgment could be enforced as against the other two departments or either of them. I believe that in a democratic system of government, built as it is upon the principle of separation of powers, with the consequent freedom of each department from direct control by the others, the

effectiveness of the adjudications of the courts, in cases properly coming under their jurisdiction, has perforce to depend upon the conscience of those at the head of, or representing, the other two departments, and their loyalty to the Constitution. I for one am persuaded that when the officers in whom at the time are vested the executive and legislative power should see that the highest court of the land, at the head of the judicial power, as, in a case properly brought before it and within its legitimate jurisdiction, decided that an act of the executive or legislative department is unconstitutional, their conscience and loyalty to the Constitution can safely be relied upon to make them, with good grace, respect such final adjudication. As was said in Angara vs. Electoral Commission (supra), our Constitution is, of course, lacking perfection and perfectibility; but it has been deemed by the framers of this and similar antecedent organic laws preferable to leave the three coordinate departments without power of coercion, one against the other, with the exceptions which may have been therein established, to open the door to mutual invasion of jurisdiction, with the consequent usurpation of powers of the invaded department. And it is here where appeal will have to be made to the conscience of the department concerned. If the executive or legislative department, in such cases, should abuse its powers against good conscience, or in a manner disloyal to the Constitution, ignoring the judgment of the courts, the aggrieved party will have to seek his remedy through the ordinary processes of democracy. During our consideration of this case reference has been made to the decision of the Supreme Court of the United States in Barry vs. United States ex rel. Cunningham (279 U.S. 597; 73 Law. ed. 867). But an examination of the facts of that case will readily reveal that the question of whether or not Cunningham should have been released on habeas corpus arose from his arrest by order of the United States Senate in the course of certain proceedings before that body, sitting as a tribunal to judge of the election, returns and qualifications of William S. Vare for Senator. It was held that: In exercising the power to judge the elections, returns and qualifications of its members, the Senate acts as a judicial tribunal, and the authority to require the attendance of witnesses is a necessary incident of the power to adjudge,

in no wise inferior under like circumstances to that exercised by a court of justice. (P. 873.) In the last sentence of the same paragraph the court speaks of the power of the Senate "to compel a witness to appear to give testimony necessary to enable that body efficiently to exercise a legislative function; "and the court proceeds: "but the principle is equally, if not a fortiori applicable where the Senate is exercising a judicial function." (Emphasis supplied.)It will thus appear that the powers of the Senate there involved were not legislative but judicial in character which fact differentiates the case from those here cited, wherein purely legislative powers or functions of the Legislature or any branch thereof were in question. There is no wonder, therefore, that the Federal Supreme Court, in the Barry case, by what really amounts to an obiter, made the remark at the conclusion of its opinion that "if judicial interference can be successfully invoked it can only be upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law," the power referred to being the judicial power to which the court refers in the paragraph which I have quoted above. In such a case, the Senate being permitted by the Constitution to exercise, for a special purpose, a portion of the powers which primarily belong to the judiciary, it is but proper that any abuse of such limited and special power, constituting a denial of the due process of law, should have its redress in the judicial department, with the Supreme Court as the final arbiter; not so in cases where any branch of the legislative department is exercising powers or functions purely legislative in nature and, therefore, within its alloted province under the Constitution, as in the case at the bar. The Federal Supreme Court speaks of "judicial interference" without specifying its kind or nature. Much less does it say that such interference will necessarily be coercive in character. But even if it had in mind the writ of habeas corpus there applied for, this being a high prerogative writ (29 C. J., 6, 7) the privilege of which is guaranteed by the Bill of Rights in our Constitution (Article III, section 1, paragraph [14]), it is in a class apart from the coercive writs or process spoken of elsewhere in this opinion — it is not merely a statutory remedy, such as injunction, prohibition, etc., but a constitutional remedy which by its very nature should be binding, in proper cases, upon any department or agency of the Government to which it may be lawfully addressed.

TUASON, J., concurring and dissenting: I concur in the result. On the authority of Alejandrino vs. Quezon (46 Phil., 83), "the writ prayed for cannot issue for the whole simple reason that the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action." With regret I have to dissent from the majority opinion upholding the constitutionality of the Pendatum Resolution. That the National Assembly, now Congress, retains the power it possessed prior to the approval of the Constitution over the uncontested election, returns and qualifications of its members, cannot successfully be disputed. This power remains intact, unaffected by section 11, Article VI of the Constitution, which limits the jurisdiction of the Electoral Tribunal to election, returns and qualifications of members of Congress that are the subject of protest. But within this limited sphere of its jurisdiction, the authority of the Electoral Tribunal is supreme, absolute, exclusive. In the language of section 11, Article VI of the Constitution (supra), "the Electoral Tribunal shall be thesole judge of all contests relating to the elections, returns and qualifications of their respective members." In Angara vs. Electoral Commission (63 Phil., 139), it was held, in the light of the deliberations of the Constitutional Convention, that the purpose of the creation of the Electoral Commission "was to transfer in its totality all the power previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal," which, though constituted by majority members of the legislature, "is a body separate from and independent of the legislature." It was said that "the grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature"; that "the express lodging of that power by the National Assembly," and that "this is as effective a restriction upon the legislative power as an express prohibition in the Constitution." In other parts of the decision, this court characterized as exclusive the jurisdiction of the Electoral

Commission over protests against the election of members of the National Assembly and "determination thereof." No stronger language than this can be found to emphasize the completeness of the inhibition of the National Assembly from interference in any matter pertaining to an election protest filed with the Electoral Commission. The resolution in question destroys the exclusive character of the Electoral Tribunal's power. It encroaches upon the Electoral Tribunal's prerogative as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress. In seeking the suspension of the petitioners on the strenght of the reported election irregularities in Central Luzon, irregularities which constitute the sole basis of the main protest, to that extent the resolution passed judgment on the truth or probabilities of the charges, although the judgment may not have been intended as final. At the very least, the resolution touches directly on a matter which involves a senatorial election contest. From whatever stand pointone may look at the Pendatun Resolution, it is hard to escape the conclusion that it oversteps the bounds of the Senate's authority and trespasses on a territory entirely reserved for the Electoral Tribunal. Viewed from another angle, the legality of petitioners' suspension is open to attack. This suspension was resorted to as an auxiliary and interlocutory step subordinated to the final outcome of the election protest filed against them. Only a few will disagree with the proposition that the power of the Senate or the House of Representatives to suspend its members as a subsidiary measure for causes connected with their election, returns and qualifications, is, if such power exists, an implied power derived from the power to remove or exclude, or what is the same thing in this connection, the power to invalidate an election. It follows that where the political power has been taken away, as in the case of protested elections, the accessory power to suspend vanishes. The fact that the power to suspend may not have been transferred, as is contended, to the Electoral Commission does not argue in favor of the contention that it still resides in the Congress. PERFECTO, J., dissenting:

I.—TO MEET OR NOT TO MEET THE CHALLENGE The challenge has been flung. Shall we evade it by an unmanly and shameful retreat? By this case the highest tribunal of the land in undergoing a crucial test. Shall it do honor to its constitutional role as the last bastion of the "regime of justice" proclaimed by the Constitution in its preamble, as one of the fundamental goals of the government established?

Within the remaining span of our life, never shall we be more conscious of the great privilege of performing our duties as the ultimate guardians of the fundamental source of vitality of our nation as an organic whole, whether normality prevails or the people boil in the cauldron of ex surging partisan passions. The very essence of constitutional government is under our trust and the momentous question is whether we shall betray that trust and keep unblemished our judicial escutcheon. The blinding grandeur of the unprecedented opportunity challenging us cannot fail to move our whole being, from ender on to the inner recesses of heart and brains, in the effort to be equal to the high duty. II.—CONFLICT OF PHILOSOPHIES

The Constitution itself is on the balance. Fundamental principles of good government, basic human rights, prime rules for the existence of an orderly society have been trampled upon. The victims come to the Supreme Court where the last line of democracy lies. Shall we allow that line to give under the onslaught? Shall we betray the faith of our people? Shall we refuse to do our part, our duty, our mission, to maintain in our country a government of laws, only because we have to face a powerful group of senators? Three senators of the Philippines, duly proclaimed as elected by 1,736,407 combined votes cast by qualified Filipino electors, immediately after assuming their respective positions, were deprived of their seats in the Senate through the unscrupulous, irresponsible, and subversive action of a tyrannical and ruthless majority who would not stop even to a downright trampling of the fundamental law. The victims come to us clamoring for relief and justice. Shall we meet the clamor with deaf ears? Shall we remain aloof with callous indifference to a flagrant violation of the Constitution? Shall we leave the victims at the mercy of a despotic oligarchy and allow the latter to supplant democracy? Shall we leave them instead to pin their hopes on popular justice, if they be patient enough not to seek justice by their hands or by the people who exalted them by suffrage to be their spokesmen in the Senate and in Congress?

Under the admitted lack of perfection and perfectability of our Constitution, it being the work of men, still we can not subscribe to the nihilistic theory that there are flagrant violations of its provisions, committed in utter oppression of a minority, to whom our government is incapable of giving redress, and when a judicial controversy arising from them is submitted for our decision we must allow ourselves to be petrified in buddhistic nirvana and declare ourselves impotent, like the bystander who can not lift a finger to save people crying for help inside a burning house or a little child inclosed in a cage full of hungry tigers. Here, three senators of the Philippines are wantonly deprived of their seats in the Senate as constitutional representatives of the people. Here, chosen, spokesmen of many hundreds of thousands of qualified voters, are silenced and muzzled, and their constitutional rights trampled upon. The transgression of the fundamental law is evident. But it is alleged that the Supreme Court is powerless to protect the victims, to revindicate their constitutional rights and those of the qualified voters who elevated them to office, and to restore law. It is alleged that within our system of government there is absolutely no remedy for such an oppression. The theory is an unmistakable upshot of a philosophy of frustration, defeatism, and despair. We can not subscribe to such an effete philosophy, afflicted with moral asthenia, unable to see but an horizon of failure. We refuse to adopt the despairing and fatalistic attitude of decrepit and impotent senility. Philosophical eunuchry is incompatible with enemy. Gelded intellectual virility or a dynamic moral

effeminacy has no place within the system of Philippine constitutional democracy. The framing of our Constitution is based on a philosophy of faith and hope, the philosophy of healthy, vigorous and courageous youth, full of the zest of life, brimming with sturdy and exalted ideas, drunk with the wine of inspired ambition and filled with enthusiasm for all good and beautiful things, always dreaming of a nobler and more glorious future. Within that strenuous philosophy there is no place for the theory of impotency of our system of government in redressing constitutional transgressions and of the incapability of the courts of justice in giving protection and redress to the victims. III.—QUALITIES REQUIRED IN JUDICIAL FUNCTION We cannot accept the invitation to bury our heads in ostrich-like fashion in the sands of indifference and inaction because, in having to exercise the constitutional function of administering justice, we will be constrained to face and take action against powerful, defiant or arrogant parties. It is precisely in cases like this where we should never show the least hesitancy in the performance of our official duties and in the exercise of the loftiest function of humanity: the administration of justice. The judicial function calls for those qualities which, for lack of better words, are described as manliness, moral courage, intellectual decision, firmness of character, and steadfastness of convictions. We accepted our position in this court fully cognizant of the grave responsibilities it entails and aware that it will exact from us all the best that nature has bestowed on us. We must not give less. We must not betray popular trust. We should not disappoint the people. IV.—FACTS IN THE CASE The Commission on Elections, pursuant to the provisions of section 11 of Commonwealth Act No. 725, made the canvass of the votes cast for senators in the election held on April 23, 1946, and on May 23, 1946, proclaimed petitioners as elected. (See accompanying Appendix A.)

Of the 16 senators proclaimed elected, 9 belong to the Liberal Party, respondents Jose A. Avelino, Vicente Francisco, Vicente Sotto, Melecio Arranz, Ramon Torres, Mariano J. Cuenco, Olegario Clarin, Enrique Magalona, and Salipada Pendatun; and 7 to the Nacionalista Party, the 3 petitioners and Tomas Confesor, Carlos P. Garcia, Tomas Cabili, and Alejo Mabanag. Of the senators elected in 1941, 8 remain in office, 4 belonging to the Liberal Party, Domingo Imperial, Proceso Sebastian, Sa Ramain Alonto, and Emiliano Tria Tirona; and 4 to the Nacionalista Party, Eulogio Rodriguez, Nicolas Buendia, Pedro Hernaez, and Vicente Rama. The Senate therefore, is actually composed of 13 Liberals, with a precarious majority of 2, and a minority of 11 Nacionalistas. On May 25, 1946, in accordance with the Commonwealth Act No. 725, the Senate convened to inaugurate the regular legislative session for this year. The session, with all senators present, except Senators Sa Ramain Alonto and Vicente Rama, began by the reading of the proclamation made by the Commission on Elections, as copied in the accompanying Appendix A. No objection having been raised against the proclamation, there being no question as to its legality and regularity, with all the 22 members present, including petitioners, recognized and accepted as full-fledged senators of the Philippines, the Senate proceeded to elect its President, a vacant position previously held by President Manuel A. Roxas. The result was: 3 absent; 2 abstained; for respondent Senator Jose A. Avelino, 10 votes, including his own; for petitioner Senator Jose O. Vera, 8 votes; and for Senator Carlos P. Garcia, 1 vote. After respondent Senator Avelino assumed his office as President of the Senate, it was moved that he receive the collective oath of office of the newly elected senators, and, at that juncture, Senator Salipada Pendatun proposed the adoption of a resolution herein attached as Appendix B, as a historical exhibit of the scurviest dealing a minority has ever endured, the dispositive part of which reads as follows:

NOW, THEREFORE, be it resolved by the Senate of the Philippines, in session assembled, as it hereby resolves, to defer the administration of oath and the sitting of JOSE O. VERA, RAMON DIOKNO, and JOSE ROMERO, pending the hearing and decision on the protests lodged against their elections, wherein the terrorism averred in the report of the Commission on Elections and in the report of the Provost Marshall constitute the ground of said protests and will therefore be the subject of investigation and determination. Debate began upon the adoption of the proposed resolution. Afterwards it was unanimously agreed upon to postpone further debate on the question for Monday, May 27, 1946. The Senate proceeded thereafter to consider another matter during which, in protest against the action taken by the majority on the said matter, all the minority senators walked out from the session hall, leaving therein only 12 majority senators, including the President of the Senate. Taking advantage of the absence of all the minority senators, the 12 majority senators remaining in the session hall approved and adopted the Pendatun Resolution, notwithstanding the fact that the Senate had already postponed the further consideration of said resolution to May 27, 1946, and the 12 majority senators, for lack of quorum, could not, under the Constitution, proceed with the business of the same and, therefore, had not the authority either to reconsider the resolution taken by the Senate, postponing the continuation of the debate on the Pendatun Resolution to May 27, 1946, or to consider and approve said resolution. At the time the petition has been filed, May 27, 1946, respondent Senator Jose Avelino, President of the Senate, had already begun to put into effect the Pendatun Resolution by ordering the Secretary of the Senate to erase from the roll of the same the names of the three petitioners. Among the three petitioners who are complaining of being deprived of their constitutional and legal right to continue sitting in the Senate of the Philippines is the minority Floor

Leader Jose O. Vera, who lost the election for President of the Senate by the bare difference of two votes. All the three petitioners, by the high positions they formerly occupied in the Government of which we may take judicial notice, are recognized as political leaders of national stature, whose presence will do honor to any legislative chamber of any country in the world.

The Chief Justice and Associate Justices Paras, Hilado and Bengzon voted to dissolve the preliminary injunction in the meantime. Upon the adoption of the above resolution, the undersigned instructed the Clerk to proceed with the service of the writ of preliminary injunction, which was immediately served to respondents.

V.—PRELIMINARY INJUNCTION Upon the facts above related and the allegations made in the petition under oath, including the one to the effect that the respondents of the majority party are determined to put into effect immediately the Pendatun resolution, to deprive the petitioners of their right to sit in the Senate, the "sinister purpose" of which was the approval, without the intervention and participation of petitioners, of important measures, including an alleged terroristic one for judicial reorganization and the highly controversial Bell Bill, as soon as the petition was submitted in the night of May 27, 1946, the undersigned issued the preliminary injunction prayed for in the petition upon petitioners' filing a cash bond in the amount of P1,000. (Copy of the order is attached as Appendix D.) On May 29, 1946, the Supreme Court in banc was specially called to session with the specific purpose of considering the issuance of a writ of preliminary injunction. As the court functioning is a special division of six, and the Supreme Court in banc was then in vacation, the session had to be called upon the initiative of the Chief Justice. In the meantime, the service of the writ was suspended. The Supreme Court in banc adopted then the following resolution:

On June 3, 1946, a majority adopted the following resolution, dissolving the writ of preliminary injunction: Considering that the preliminary injunction was issued in the case of Jose O. Vera, petitioners, vs. Jose A. Avelino, respondents, G.R. No. L-543, to preserve the status quo and thus prevent the execution of the acts alleged under oath in the last part of paragraph X of the petition, without the intervention of the petitioners; and taking into consideration that this court, after hearing both parties, at any rate believes and trusts that the respondents will not carry out said acts during the pendency of this proceeding, this court, without deciding whether or not the said injunction was justified, hereby resolves to dissolve it in the meantime, without prejudice to whatever action or decision this court may take or render on the question involved in this case including that of jurisdiction. Justice Paras concurs in the result. Justice Jaranilla absent. Justice Perfecto dissents as follows:

The court in banc, having been informed that a writ of preliminary injunction has been issued in G.R. No. L-543, Jose O. Vera vs. Jose Avelino by Justice Perfecto under sections 2 and 5 of Rule 60, Resolved to set for hearing the petition for preliminary injunction on Saturday, June 1st, 1946, at 10 o'clock a.m., for the purpose of determining whether or not the issuance of said writ was justified. Let notice be given to all the parties.

The facts alleged in the petition show that petitioners' fundamental rights have been trampled upon in open defiance of the law and the Constitution; that respondents, in adopting the Pendatun Resolution and trying to enforce it, usurped constitutional functions exclusively entrusted by the people to the Electoral Tribunal of the Senate, as an independent and separate department of the government; that the people

at large, who voted for and of whom petitioners are legal representatives, are intended to be deprived of their voice and vote on matters of transcendental importance to the welfare and future of this nation, that are and to be under consideration of the Senate. Respondents did not deny these facts. They reduced themselves to impugn the inherent and undisputable jurisdiction of this Supreme Court to pass upon the above mentioned flagrant violations of the Constitution and to afford coercive relief to the victims thereof. We cannot agree with an action which history may give a damaging interpretation. We must have proper respect to the judgement of posterity. We have a plain duty to uphold the Constitution. We must not shirk that sacred duty. We are called upon to protect the constitutional prerogatives of the representatives of the people. Our loyalty to the people does not permit any alternative action to that of extending the cloak of our authority so that the representatives of the people may continue performing unhampered their fundamental prerogatives and functions. We cannot agree with any suspension of their exercise in utter violation of the fundamental law of land. The sovereignty of the people itself is involved in this case. We cannot suffer the idea that in one of the crucial moments in the performance of our functions and in the compliance of our duty as is pointed out by our conscience, we have faltered. The preliminary injunction must not be dissolved. Although the belief expressed in the majority resolution is, in effect, a moral injunction, addressed solely to the sense of responsibility, fairness, decency, and patriotism of respondents, without any enforceable legal sanction, the majority being sure that respondents will not betray the trust reposed on them, yet we felt it our duty to dissent because in questions so important as those raised in this case we do not agree with indirect and diplomatic procedures, with wavering, innocious and hesitating action, with laodicean measures and resolutions, with equivocal, furtive, and not forth putting attitude. In judicial matters, the best policy is forthrightness, not ambiguity. The way of Themis is always rectilinear. Her path is never tortuous, labyrinthine, or misleading.

Without any attempt at prophecy, not long after the resolution dissolving the writ of preliminary injunction, events have shown the moral, indirect, or admonitory injunctions by courts of justice are mere sounds transcribed on scraps of paper, not worthier than the sheets on which they are written. Hocking at the credulity, ingenuousness, and compliance of the majority of this court, with the exclusion of petitioners, respondents proceeded to carryout the acts alleged in the last part of paragraph X of the petition, such as the approval of the Bell bill, the revamping of the judiciary system of the Philippines, including the unconstitutional reduction of the membership of the Supreme Court from the eleven to seven, and the measure which would wipe out the timehonored principle of stability in the Philippine civil service system, by placing many thousands of public officers and employees in iniquitous insecurity in the positions in which they have invested the be stenergies in years of public service. For the nonce, it will be hard to gauge and appraise the full consequences of the resolution of June 5, 1946, dissolving the writ of preliminary injunction based on the majority's belief and trust that events have shown to be completely hazy and groundless. It is only our fervent hope that the consequences, whatever they may be, may not dampen the enthusiasm of those who have reposed so much faith in the success of our sovereign Republic as the pursuivant heralding a new era to all subjected peoples. On June 8, 1946, petitioners filed a motion praying that the above majority's resolution of June 3, 1946, be reconsidered and that the writ of preliminary injunction be restored. It remained deplorably unacted upon for weeks until respondents were able to consummate the acts above mentioned. That action continues now to be pending before us for decision, the same as respondents' motion to dismiss. VI.—UNCONSTITUTIONAL USURPATION Section 11 of Article VI of the Constitution reads as follows:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman. The constitution of the Electoral Tribunals is provided in section 13 of Article VI of the Constitution, wherein it is required that they shall be constituted "within thirty days after the Senate and the House of Representatives shall have been organized with the election of their President and Speaker, respectively." From the foregoing, it is evident that the power to judge "all contests relating to the election, returns and qualifications" of senators and representatives, is exclusively lodged in the respective Electoral Tribunal, the exclusivity being emphasized by the use of the word "sole" by the drafters of the Constitution.

reasons behind the adoption of the Pendatun Resolution, we read: The Senate considers it against its dignity and inimical to its welfare and integrity to allow petitioners to sit as members pending the final determination of the question whether or not they were duly elected . . . it was an expression of the legislative (?) policy, a desire on the part of the Senate to recognize only members whom it believes were legally elected. (Emphasis supplied.) The respondents do not constitute the Senate Electoral Tribunal which has the exclusive jurisdiction to exercise said power. The fact that latter three among the respondent Senators were chosen to be members of said Tribunal does not change the situation, nor cures the constitution inroad. They, therefore, in adopting the Pendatun Resolution, usurped a power, a jurisdiction, and an authority exclusively belonging to the Senate Electoral Tribunal. The usurpation has been perpetrated in flagrant violation of the Constitution. The Pendatun Resolution, being unconstitutional, is null and void per se.

By the Pedatun Resolution, respondents exercised, in effect, the power to judge "the election, returns, and qualifications" of petitioners as senators of the Philippines, duly proclaimed as elected on April 23, 1946.

Among the Justices who voted to declare it invalid, because it wimbles the fundamental law, are two former members of the constitutional convention and of its committee on style, who took active part in the creation of the Electoral Commission, and a former member of the Second National Assembly which, by constitutional amendment, created the present Senate and the two Electoral Tribunals. Justice Hontiveros, one of the present three Justices who took part in the framing of the original Constitution, did not participate in the voting.

From the very words of respondents themselves there can be no possible mistakes as to the fact that, in adopting the Pendatun Resolution, they exercised the judicial power to judge a controversy concerning the election of petitioners as senators of the Philippines.

We have to bring out these facts because it is only logical that the co-authors of the Constitution and of its amendments must be in a better position to interpret their own will, intention, and purposes as they expressed them in their own words in the fundamental law.

From their motion to dismiss dated June 6, 1946, through Solicitor General Lorenzo Tañada and Atty. Vicente J. Francisco, himself one of the Senate, referring to the

VI.-A.—THE INTENT OF THE PEOPLE IN THE CONSTITUTION IS IDENTICAL WITH THE INTENT OF THEIR DELEGATES

Even the majority themselves admit that, in construing the Constitution of the United States, the writings in "The Federalist" of the delegates of the constitutional convention, such as Hamilton, Madison, and Jay, have persuasive force, the same as the book of Delegate Aruego and of other members of our own constitutional convention concerning the Constitution of the Philippines. It is only logical that the authors themselves should be in the advantageous situation of construing more exactly the product of their own minds. But, as if repenting for making the admission, foreseeing the damaging consequences thereof for the majority's position, they tried to neutralize it or subtract its validity by seconding the sophistic distinction made by Willoughby as to the conclusiveness of the parliamentary proceedings as means by proper construction of the Constitution, on one side, and of the statutes, on the other, since in the legislative proceedings "it is the intent of the legislature we seek, " while in the preceedings of the constitution convention "we are endeavoring to arrive at the intent of the people through the discussions and the liberations of their representative." The distinction is absolutely groundless. In either the constitutional convention are in the legislature, it is the people who speak through their delegates and representatives, and the intent of the people may only be gathered from the utterances of said delegates and representatives. The "intent of the legislature" in ordinary laws is the "intent of the people," both and being undistinguishable for all practical purposes. And the "intent of the people" in a constitutional convention is identified with the "intent" of their delegates thereof. It is absurd, in practical, and against the realities of all experience to mention "intent of the people" as something different from and in opposition to the intent of their own representatives. The delegates and representatives are the mouthpiece of the people. In the system of the representative democracy prevailing in the United States of America and in the Philippines, the people never speak by themselves, but by their chosen mouthpieces — the voters in the matter of selection of government officers, and the officers in the matter of expressing the people's will in government or state matters. There is no essential difference between the parliamentary role of the delegates to a constitutional convention and that of the members of a legislature. The fact that the former are charged with the drafting of the fundamental

law and the latter with the enactment of ordinary laws does not change their common character as representatives and mouthpieces of the people. In either the Constitution or in the ordinary statutes, it is the thought and the will of the people which are expressed. What that thought and that will are can only be gathered from the way they are expressed by the representatives. The thought and the will of the people are interpreted and expressed by the representatives and crystallized in the words uttered and written by them. No one may pretend to know the meaning of the expressions uttered of the provisions written better than the very persons who poured on them their own thoughts and decisions. The thought and the will of the people remain in the abstract, are incapable of caption, are more ideological entities, and do not form and cannot be pointed out or determined until and unless their representatives in the constitutional convention are in the legislature express them in concrete and specific words of their own. The collective entity of the people is, by its very in being, inarticulate. It becomes articulate only through its chosen representatives. Its will is an aphlogistic amber that becomes aflame only in the parliamentary actuations of its delegates. And if we are not dreaming, we must accept the fact that what the representatives of the people stereotype either in a constitution or in ordinary laws are their own personal opinions and convictions, their own individual and personal thoughts and wills, although in doing so they act in their representative capacity. We, the members of the Supreme Court, are also representatives of the people and are performing our official functions in are presentative capacity, but the opinions we express and write flow, not from any extrinsic or indwelling reservoir of justice, reserved to us by the sovereign people, but from the spiritual fountain of our own personal consciousness. We will not dare to dispute any one's claim to wield, in interpreting the fundamental law, the same authority of such judicial giants as Marshall and Holmes, but we consider it completely out of place to conclude that, because in the present constitutional controversy we maintain that the co-authors of our fundamental law are in better position to construe the very document in which they have infused the ideas which boiled in their minds, and gave a definite form to their own convictions and decisions, said great justices shall not be so authoritative in expounding the United States Constitution, because

they were not members of the federal convention that framed it, eventhough, it should be recalled, Chief Justice Marshall was one of the outstanding figures in the Virginia convention that ratified said Constitution. The mention is out of place, because it has not been, and can not be, shown that the constitutional opinions of Marshall and Holmes, for which they were hailed as authorities, are in conflict with what Madison, Hamilton, Jay, and other delegates to the federal convention had said or written as to the intent expressed in said fundamental law; while in the present controversy, there is an actual conflict of interpretation between former delegates and those who never have been, and it happens that the former members of the constitutional convention taking part in the disposal of this case, are unanimous in construing the document in the drafting of which they took personal and active part. Of course, in our atmosphere of freedom of opinion, outsiders may perfectly claim and pretend to know what the delegates to our constitutional convention intended to express in the Constitution better than the delegates themselves, as it is possible for some anthropologists to claim that they are in a position to recognize the children of some parents better than the parents themselves. But everybody must also agree that such feats of clairvoyance are not within the range of normal experience and, therefore, must not ordinarily be accepted at their face value. VII.—UNCONSTITUTIONAL PROCEDURE The Pendatun Resolution has been adopted when there was no quorum in the Senate. Those present were only 12, all respondent senators. When respondents adopted the resolution, they purportedly adopted it as a resolution of the Senate. Section 10 (2) of Article VI of the Constitution provides that "a majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as such House may provide."

It is evident, therefore, that, to do business, the Senate, being composed of 24 members, needs the presence of at least 13 senators. "A smaller number may adjourn from day to day and may compel the attendance of absent members," but not in exercising any other power, such as the adoption of the Pendatun Resolution. The procedure used by respondents in adopting the Pendatun Resolution is, therefore, conclusively unconstitutional. VIII.—CRIMINAL OFFENSES Petitioners are among the senators who, having been proclaimed elected by the Commission on Elections, are duty bound to assume office from May 23, 1946, under the following mandatory provision of section 12 of Commonwealth Act No. 725: SEC. 12. The candidates for member of the House of Representatives and those for Senator who have been proclaimed elected by the respective Board of Canvassers and the Commission on Elections shall assume office and shall hold regular session for the year nineteen hundred and forty-six on May twentyfive, nineteen hundred and forty-six. Within thirty-five days after the election has been held, both Houses of Congress shall meet in session and shall publicly count the votes cast for the offices of President and Vice-President, in accordance with Article VII, section two of the Constitution. The persons respectively having the largest number of votes for President and Vice-President shall be declared elected; but in case two or more candidates shall have an equal and largest number of votes for either office, one of them shall be chosen President or Vice-President, as the case may be, by a majority vote of the members of Congress in joint session assembled. If petitioners should fail to discharge the duties of their respective offices, they will incur criminal responsibility and may be punished, according to the Penal Code, with

arresto mayor or a fine not exceeding 1,000 pesos, or both. Art. 234. Refusal to discharge elective office.— The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office. No one may prevent them from performing the duties of their office, such as attending the meetings of the Senate or of any of its committees or subcommittees, or from expressing their opinions or casting their votes, without being criminally guilty of a violation of parliamentary immunity, a criminal offense punished by the Penal Code withprision mayor. ART. 145. Violation of parliamentary immunity.— The penalty of prision mayor shall be imposed upon any person who shall use force, intimidation, threats, or fraud to prevent any member of the National Assembly (Congress)from attending the meetings of the Assembly (Congress) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, from expressing his opinions or casting his vote; and the penalty of prision correccional shall be imposed upon any public officer or employee who shall, while the Assembly (Congress) is in regular or special session, arrest or search any member thereof, except this Code by a penalty higher than prision mayor. (Words in parenthesis supplied.) From the foregoing, it is evident that respondents have the inexcusable duty of recognizing petitioners as legal members of the Senate, otherwise they may be liable to criminal prosecution for an offense defined and punished by the Penal Code with imprisonment ranging from 6 years to 12 years. IX.—PETITIONERS' CREDENTIALS CONCLUSIVE AS TO THEIR RIGHT TO THEIR SEATS IN THE SENATE

It is a duty from which respondents can not legally escape. Otherwise they will invite the sword of Damocles of criminal prosecution to be hanging on their heads. As the Supreme Court of Kansas said in Re Gunn. 19 L.R.A., 519: But, again we have what is known as a "standard work" on parliamentary or legislative practice. It is found in almost every public library, is examined and referred to by every legislative assembly and every congressional body, and its title is "Cushing's Law and Practice of Legislative Assemblies." . . . In section 240 it is said: "the principle of parliamentary law applicable to the question are perfectly simple and plain, founded in the very nature of things, established by the uniform practice and authority of parliament, confirmed by reason and analogy. These principles are as follows: First, that every person duly returned is a member, whether legally elected or not, until his election is set aside; second, that no person who is not duly returned, is a member, although legally elected, until his election is established; third, that conflicting claimants, both in form legally returned (that would be where two persons had certificates), are neither of them entitled to be considered as members until the question between them has been settled; fourth, that those members who are duly returned, and they alone — the members whose rights are to determined being excluded — constitute the judicial tribunal for the decision of all questions of this nature." Upon this question of certificates, we also cite the contest in the United States Senate from Montana, which is the latest utterance of the highest legislative body in this land. In the report of the majority of the committee it is said: "The majority of the committee are of the opinion that, if this body of persons had lawful and constitutional certificates of their election, that title is a good title against all the world, governing their associates in that body, governing the senate, governing everybody who had a lawful duty to determine who are lawfully elected representatives, until there can be an adjudication by the House itself to the contrary; and that nobody can be heard to say, and that

no authority can be permitted to inquire into or determine, the actual facts of the election as against the title." (51st Congress, 1st Session [21 Cong. Record, pt. 3, pp. 2906-2810], p. 521.) The court also quoted from the American and English Encyclopedia, saying: The American and English Encyclopedia summarizes the law of the worth of a certificate of election as follows: "It is settled that when it is made the duty of certain officers to canvass the votes, and issue a certificate of election in favor of the successful candidate, a certificate of such officers, regular upon its face, is sufficient to entitle the person holding it to the possession of the office during an action to contest the right." Volume 6, p. 373; 33 Law. ed., 948; State vs. Buckland (23 Kan., 369). The court might well have added that Ruling Case Law wholly confirms its stand: . . . The certificate entitles the recipient to exercise the office until the regular constitutional authority shall determine who is legally elected officer, and it is duty of the incumbent of an office at the expiration of his term to surrender it to one who has received a certificate of election and has qualified thereunder. If it is desired to contest the election or qualification of such person, this may be done in the manner prescribed by law for determining claims to an office. Disbursing officers, charges with the payment of salaries, have a right to rely on the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right. While a certificate of election may be superseded by a decree in proceedings to contest the election, it cannot be subjected to attack in a collateral proceeding in which the title may be in question; and if the time should pass within which such proceeding may be instituted the title may become absolute and indefeasible in default of any contest. Hence it has been said that the

holder of a certificate of election who has duly qualified is prima facie entitled to the office when his term begins, as against everyone except a de facto officer in possession under color of authority. He is entitled to retain possession and to perform the duties of the office without interference until such certificate is set aside by some appropriate proceeding." (22 R. C. L., 436, 437.) This Supreme Court laid down the same doctrine by stating the following: . . . As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the National Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935) Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331, 332; vol. 21, pp. 694, 695;U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted election is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alteration or amendment of the return (Cushing,

Law and Practice of Legislative Assemblies, 9th ed., sec. 166). (Angara vs. Electoral Commission, 63 Phil., 139, 180, 181.) As a matter of fact, in the Gunn case, the Supreme Court of Kansas had occasion to comment on the exclusion of ten duly proclaimed members from the roll of the House, and unhesitatingly condemned it in these words: It seems that while 10 contestants are marked in the Dunsmore Journal as present, but not voting, 10 names on the certified roll are wholly omitted. Any rightful reason for such omission does not appear. We cannot perceive any valid reason for such omission, even if 10 certified members had their seats contested. Every person duly returned too a house of representatives, and having a certificate, is a member thereof, whether elected or not, whether eligible or not, until his election is set aside. And this must be set aside by the House, not by the individual members before organization, not by anyone member, not by any contestant, not by any mob. Before organization, a few members properly elected, meeting in causus or otherwise, cannot pass upon the "elections, returns, and qualification of a members of the House to be thereafter organized." If one member, before organization can object to any other member duly returned and having a certificate, then all members can be objected to, and there could be no one left to organize any house. In McCraryon Election (2d ed., s. 204) the practice is thus stated; "Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, it is often necessary to determine which of the claimants shall be permitted to qualify and to exercise the functions of the office pending such investigation. If the office were to remain vacant pending the contest, it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of a public officer. Besides, if the mere institution of a contest were deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that every great and

serious injustice might be done. If this were the rule, it would only be necessary for an evildisposed person to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term; and this might be done by a contest having little or no merit on his side for it would be impossible to discover in advance of an investigation the absence of merit. And, again, if the party holding the ordinary credentials to an office could be kept out of the office by the mere institution of a contest, the organization of a legislative bodysuch, for example, as the House of Representatives of the United States-might be altogether prevented by instituting contest against a majority of the members; or what is more to be apprehended, the relative strength of political parties against members of one or the other of such parties. These considerations have made it necessary to adopt and to adhere to the rule that the person holding the ordinary credential shall be qualified and allowed to act pending a contest and until a decision can be had on the merits. Now, why should not this principle be followed? Why should not this rule, which is universal throughout the states of this Union, and which is accepted and adopted by Congress, be followed in the state of Kansas? It has history to sustain it. It has reason to sustain it. And let us here remark that in every state of this Union where, through political excitement or personal contests, a different rule has been adopted, disturbance, violence, and almost bloodshed have always occurred. (Pp. 522-523.) X.—ELECTORAL CONTESTS ON LEGISLATIVE POSITIONS Much reliance has been placed by respondents on the Rafols case in support of their authority to suspend the seatings of petitioners through the Pendatun Resolution.

We agree that not enough emphasis may be placed on said case, although not as an isolated one but as the initial link of a chain of historical events handing with the leading and epoch-making, although not enough of the publicized case of Angara vs. Electoral Commission, decided on July 15, 1936, which reversed the pusillanimous, vacillating, and self-contradictory majority position taken in Alejandrino vs. Quezon, decided on September 11, 1924.

Although the Pro delegates of the convention were only about one-fifth of all the members, some of them were elected to preside over important committees--Rafael Palma, on principles; Jose P. Laurel, on the bill of rights; Manuel C. Briones, on legislative power; and ourselves on citizenship. By his leading and influential role in the drafting of the Constitution, Manuel A. Roxas was pointed out as the Hamilton of our convention.

A little piece of history will be helping.

With such men and with their background, the convention introduced the innovation of creating the Electoral Commission of the National Assembly, to which the power to judge upon the election, returns, and qualifications of legislators, formerly exercised by legislative bodies, was transferred. The innovation was introduced precisely with the purpose of avoiding the repetition of such abuses and injustices as those committed against Rafols, by lodging the judicial power of deciding electoral contests for legislative positions to where it should logically belong--to a judicial body, which is expected to do justice and not to serve partisan political interests without compunctions and scruples.

In 1925, Nicolas A. Rafols was reelected as representative from one district of Cebu. The House of Representatives of the 7th Philippine Legislature suspended his seating. The resolution for suspension was passed after a bitter parliamentary debate between members of the majority belonging to the Nacionalista Party and the members of the minority belonging to the Democrata Party. The House was then presided over by Speaker Manuel A. Roxas, now President of the Philippines, and among those who with us opposed the resolution for suspension were Representative Jose Avelino from Samar, now President of the Senate, and the minority floor leader, Claro M. Recto, who later became President of the House of Representatives. The arbitrariness and injustice committed against Representative Rafols were bitterly resented and rankled deep in the hearts of the minority who felt they were despotically trampled upon by a bulldozing majority. The Pro-Anti political struggle in 1934 resulted in new alignments. Former Democratas Avelino and Recto happened to align with the Anti majority, the same as Justice Hontiveros, who also became a Delegate to the constitutional convention; and former Nacionalistas Manuel A. Roxas and Manuel C. Briones happened to align with the Pro minority. In 1934, the constitutional convention was presided over by Claro M. Recto, as President, Ruperto Montinola, as First Vice President, and Teodoro Sandico, as Second Vice President. All of them belonged to the Democrata Party when in 1925 injustice was committed against Representative Rafols. Recto and Sandico were aligned with the Anti majority and Montinola with the Pro minority.

Although the initiative came from the minority, Pros, it was whole heartedly supported by the majority Anti leaders. The members of the constitutional convention, with the most prominent leaders thereof, were fully aware of how changeable the political fortunes of men are, and it was in the interest of everybody that the rights of the minority be equally protected as those of the majority. Through Justice Laurel, a former member of the constitutional convention, this Supreme Court said: The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When, therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns, and qualifications of the members of the National Assembly, they must have done so not only in

the light of their own experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Nothwithstanding the vigorous opposition of some members of the convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the Constitution, the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people." (Abraham Lincoln, First Inaugural Address, March 4, 1861.) From the deliberations of our constitutional convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matter pertaining to contested elections of its members, to an indefendent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court. The Electoral commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained

originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S. D., 260; L. R. A., 1917B, 1). (Angara vs. Electoral commission, 63 Phil., 139, 174-176.) XI.—SEPARATION OF POWERS There is much misunderstanding as to the real import meaning, and scope of the much vaunted principle of separation of power due to the confusion in many minds between two conceptions: one, naive and vulgar; and the other, constitutional and strictly juridical. The trouble lies in the fact that, for lack of more appropriate term, the word separation has been used to convey a group of concepts and ideas, when the word only expresses just one of partial aspect of one of said concepts and ideas. Thus a misconception results by confounding a part with the whole or the whole with the part. The vulgar notion of separation of powers appears to be simple, rudimentary, and clear-cut. As a consequence, the principle of separation of powers creates in the mind of the ignorant or uninitiated the images of the different departments of government as individual units, each one existing independently, all alone by itself, completely disconnected from the remaining all others. The picture in their mental panorama offers, in effect, the appearance of each department as a complete government by itself. Each governmental department appears to be a veritable state in the general set up of the Philippine state, like the autonomous kingdoms and princedoms of them a harajahs of India. Such undiscerning and rudimentary notion can not fit in the pattern framed by the Filipino people through their representatives in the constitutional convention. The true concept of the principle of separation of powers may not be obtained but in conjunction with the political structure set up by the Constitution and only in accordance with the specific provisions thereof.

The drafters of the constitution were fully acquainted with the then prevailing confusions and misconceptions as to the meaning of the principle of separation of powers. One outstanding instance is shown in the self-contradicting, courageless decision in Alejandrino vs. Quezon (46 Phil., 83), where the majority deflected from the natural and logical consequences of the premises unanimously agreed upon by all the members of the court using as a subterfuge an erroneous, disrupting, and subversive interpretation and application of the principle of separation of powers, becoming since a fetish of a class of unanalytical constitutional doctrinaires, distressingly unmindful of its dangerous implications, eager to emulate, in proclaiming it as a legal dogma, the plangent exertions of housetop bawlers preaching the virtues of a new panacea. Fully knowing the prevailing misconceptions regarding said principle, although there was an implicit agreement that it is one of those underlying principles of government ordered by the Constitution to be established, the delegates to the constitutional convention purposely avoided its inclusion in the Declaration of Principles inserted as Article II of the fundamental law. They even went to the extent of avoiding to mention it by the phrase it is designated. XII.—CONSTITUTIONAL CONCEPTION—THE ONLY ONE ACCEPTABLE The only acceptable conception of the principle of separation of powers within our democracy in the constitutional one. We must reject any idea of it as something existing by itself, independent of the Constitution and, as some misguided jurist would have it, even superior to the fundamental law of the land. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. . . . The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.

For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or threefourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointment of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. (Angara vs. Electoral Commission, 63 Phil., 139, 156, 157.) The framers of the Constitution had never intended to create or allow the existence of governmental departments as autonomous states within the republican state of the Philippines. The three departments mentioned in the Constitution were created, not as complete independent units, but as limbs and organs of the organic unit of the department is independent and separate from the others in the sense that it is an organ specifically entrusted with the performance of specific functions, not only for the sake of efficiency resulting from division of labor, but to avoid tyranny, despotism, and dictatorship which, as experience and history have taught, result from the concentration of government powers in one person or in an oligarchical group. XIII.—FUNDAMENTAL IDEA OF UNITY

The idea of unity is fundamental in our Constitution. The Filipino people ordained and promulgated the Constitution "in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy" (Preamble of the Constitution). "The Philippines is a republic state. Sovereignty resides in the people and all government authority emanates from them" (section 1, Article 11, Constitution). Under this principle we must view the whole government as a unit, and all departments and other government organs, agencies and instrumentalities as parts of that unit in the same was as the head, the hands, and the heart are parts of a human body. By examining the provisions of the Constitution, the vulgar notion of the principle of separation of powers can be shown to be wrong, as there is neither an office nor a department, created or allowed to be created under the Constitution, that may be considered as effectively separate from the others, as the misinformed people would have it. As a matter of fact, there is no government power vested exclusively in any authority, office, or government agency. Section 1 of Article VI vests the legislative power in a Congress of the Philippines, but this provision does not preclude the President of the Philippines and the Supreme Court from partaking in the exercise of legislative power. The President has the initiative in the making of appropriations which may not be increased by Congress except those pertaining to Congress itself and the judicial department, and the President may veto any bill enacted by Congress (sections 19 and 20, Article VI, of the Constitution). The Supreme Court may declare unconstitutional and, therefore, nullify a law enacted by Congress and approved by the President of the Philippines (sections 2 and 10, Article VIII, of the Constitution). The Supreme Court exercises, besides, legislative power in promulgating rules concerning pleading, practice, and procedure in all courts (section 13, Article VIII, of the Constitution) The executive power is vested in a President of the Philippines (section 1, Article VII, Constitution of the Philippines), but the Senate and House of

Representatives, through the Commission on Appointments, take part in the exercise of the executive power of appointment (section 12, Article VI, and section 10 [3], Article VII, of the Constitution), and in the granting of amnesty and in making treaties (section 10 [6] and 10 [7], Article VII, of theConstitution). The Supreme Court exercises executive power regarding the transfer of judges from their districts to another. (Section 7, Article VIII, of the Constitution.) Tribunals' power to order the execution of their decisions and mandates is of executive character. The judicial power is vested in one Supreme Court and in such inferior court as may be established by law (section 1, Article VIII, of the Constitution).But there are many instances wherein the President of the Philippines must administer justice, so it is required from him by the Constitution to swear to "do justice to every man" (section 7, Article VII, of the Constitution). And by impeachment proceedings, the House of Representatives and the Senate exercise judicial function (Article IX, of the Constitution). Their power to construe and apply their own rules and their disciplinary power to punish their own members for disorderly conduct are of judicial nature. Furthermore, there are specific functions of government entrusted to agencies other than the three great departments of government, the legislative, the executive, and the judicial. The judicial function of judging contests as to election, returns, and qualifications of senators in entrusted to the Electoral Tribunal of the Senate; and that of judging contests as to election, returns, and qualifications of representatives, to the Electoral Tribunal of the House of Representatives (section 11, Article VI, of the Constitution).The executive function of auditing the government accounts is entrusted to a constitutional officer, the Auditor General (Article XI, of the Constitution), and the administrative function of supervising elections is entrusted to the Commission on Elections (Article X, of the Constitution). To understand well the true meaning of the principle of separation of powers, it is necessary to remember and pay special attention to the fact that the idea of separation refers, not to departments, organs, or other government agencies, but to powers exercised. The things separated are not the subject of the powers, but the functions to be performed. It means division of functions, but not of

officials or organs which will perform them. It is analogous to the economic principle of division of labor practiced in a factory where multiple manufacturing processes are performed to produce a finished article. XIV.—APPLICATION OF THE PRINCIPLE OF SEPARATION OF POWERS In the discussion of the question how the principle of separation of powers must be applied, misunderstood ideas have been asserted as springboard to jump to rash and unfounded conclusions. Among such assertions is the one which would have three great departments of government, not only co-equal in dignity, but, notwithstanding their admitted coordination, as actual sovereigns — as if within the sphere of the sovereigns can be admitted — each one with full powers to destroy and trample upon the Constitution, with the victims absolutely incapable and powerless to obtain redress against the offense. Such an assertion would make of said departments as states within a state. The fundamental error of the assertion lies in the failure to consider the following principle of the Constitution: Sovereignty resides in the people and all government authority emanates from them. (Section 1, Article II.) Each department of government is nothing but a mere agency by which the people exercise its supreme sovereignty. Within the framework of the Constitution, our government may be compared to a human being: the legislative department is the brain that formulates policies and rule through the laws it enacts; the executive department is the hand that executes such policies and rules; the judicial department is the conscience that declares what is wrong and what is right, and determines what acts are in consonance with or inimical to the constitutional unity as the very condition of life and survival. The brain that defines policies and the hand that executes them may go astray and disregard, by their physical power, the infallible pronouncements and admonitions of conscience; but nothing can and should stop conscience in its great ethical mission as a condition indespensable to

existence itself. By the same token, nothing can and should silence tribunals as the organs, in the government set up by the Constitution, of the collective conscience of the people. In the long trip of destiny, that collective conscience shall ever be the guiding star, unerring even in the gloomiest confusions. Applying to the case at bar the principle of separation of powers in its true meaning, the logical result will be precisely the opposite of the position taken by respondents who, unwittingly, are insistently invoking it to challenge the power, authority, and jurisdiction of this Supreme Court to entertain the petition and to grant petitioners coercive relief. From the facts of the case, it is evident that respondents encroached upon, invaded, and usurped the ancillary powers to suspend petitioners in relation to the power to judge electoral contests concerning senators, a power which the Constitution specifically assigns to the Senate Electoral Tribunal, exclusive of all other departments, agencies or organs of government. That power of suspension is accessory, adjective, complementary, and ancillary to the substantial power to judge said electoral contests. The accessory must follow the principal; the adjective, the substantive; the complementary, the complemented. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eighth ed., vol. I, pp. 138, 139). (Angara vs. Electoral Commission, 63 Phil., 139, 177.) That power of suspension may, in the interest of reason and justice, be exercised by the Senate Electoral Tribunal in relation too an electoral contest, among other possible cases that can be surmissed, where two or more allegedly elected senators are in possession of apparently valid credentials of having been proclaimed as duly elected. In such a case, as the Constitution does not allow more than twenty-four senators to sit in the Senate and there is, in the meantime, no possibility of determining who among the

contestants have been duly elected — all the claimants being in possession of incompatible, self-denying and selfdestroying credentials — reason counsels that all of them be suspended by the Electoral Tribunal pending the presentation of the necessary evidence to allow one of them to take his seat in the Senate until the contest is finally decided. The usurpation perpetrated by respondents is a flagrant violation of the principle of separation of powers, they having invaded a ground belonging exclusively to the Senate Electoral Tribunal. XV.—THE SENATE WITHOUT POWER TO SUSPEND ITS MEMBERS Respondents lack the power of suspension, not only as ancillary remedy in senatorial election contests, but even in the exercise of the Senate judicial power to punish its members for disorderly conduct. The majority and the minority of the Supreme Court in the case of Alejandrino vs. Quezon (46 Phil., 83), agreed unanimously with respect to said Senate Malcolm, speaking for the Court in said case, stated: As to whether the power to "suspend" is included in the power to "punish," a power granted to the Houses of the Legislature by the Constitution, or in the power to "remove" a power granted to the Governor-General by the Constitution, it would appear that neither is the correct hypothesis. The Constitution has purposely withheld from the two Houses of the Legislature and the Governor-General alike the power to suspend an appointive member of the Legislature. It is noteworthy that the Congress of the United States has not in all its long history suspended a member. And the reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House without depriving the construency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but

suspension deprives the electoral district of representation without the district being afforded any means by which to fill the vacancy. By suspension, the seat remains filled but the occupant is silenced. Suspension for one year is equivalent to qualified expulsion or removal. (P. 96.) And Justice Johnson, who dissented on another ground, explained the ruling in greater detail as follows: The power to punish for misbehavior was intended purely as a disciplinary measure. When a member of the Legislature is removed either by the Governor-General or by the Legislature, a vacancy exists, and the law gives the GovernorGeneral the right to appoint, and the people of the district the right to fill the vacancy by election, so that the people may again, under either case, be represented. A "suspension" of a member, however, does not create a vacancy, and the people of the district are without a representative and the Governor-General cannot appoint one and the people cannot elect one during the period of suspension. They are without representation during that period. They are, for the period of suspension, taxed without representation. If a member, under the power to punish, can be suspended for ten or more years, thus depriving the Governor-General of his right under the law, and the people of the district, of a representative, and without a remedy in the premises. If the power "to punish for disorderly behavior" includes the power to suspend or to deprive a member of all his rights, and if the suspension is in effect a removal, then an appointed member many be removed, under the power to punish, by a mere majority, while the law requires a twothirds majority to remove an elective member. In other words, if under the power to "punish," any member of the legislature, including an appointive member, may be in effect removed, then an elective member may be removed by a majority vote only, thus encroaching upon the power of the executive department of the

government, as well as violating the powers conferred upon the Legislature, because the Legislature cannot remove an elective member except by two-thirds majority. It is strenuously argued by the respondents that the resolution depriving the petitioner "of all his prerogatives, privileges, and emoluments for the period of one year" is not a removal from his office but a mere suspension. The resolution does not use the word "suspend" but does not use the word "deprive." It provides that the petitioner is "deprived" of all his prerogatives, etc., for a period of one year. If that word means anything it means that all of the prerogatives, privileges, and emoluments of the petitioner and the citizens whom he represents have been taken from him and them. His prerogatives, privileges, and emoluments constitute his right to represent the people of his district, and his right to exercise all the duties and to assume all the responsibilities pertaining to his office. His emoluments constitute his right to receive his salary and the benefits pertaining to his office as a senator. If a value can be placed upon his prerogatives, privileges and emoluments, and if he has been deprived of them, then it must follow that they have been removed from him, or that he has been removed from them. At any rate, the resolution has separated the petitioner and the people whom he represents and deprived them of all of one year; and, for all intents and purposes, he and the people whom he represents, have been deprived of their prerogatives, privileges, and emoluments, and in effect, has been removed from any participation in the legislative affairs of the government. A great many cases have been studied on the question of removal and suspension, and we are confindent in the assertion that the power to punish does not include the power to remove or suspend. A suspension from an office or a deprivation of the rights of an officer of all his prerogatives, privileges, and emoluments, is in effect a deprivation or a removal from office for the time mentioned in the order of suspension. It has been held that a suspension from office for

an indefinite time and lasting for a period of six months, lost its temporary character, ceased to be a suspension, and in effect became a removal from such office. It was held, in the case of the State vs. Chamber of Commerce, that the suspension of a member was a qualified expulsion, and that whether it was called a suspension or expulsion or removal, it in effect disfrachised the person suspended. In the case of Metsker vs. Nelly, it was held that a suspension or a deprivation for either a definite period is in effect a removal. In the case of Gregory vs. New York, it was held that the power to remove an officer or punish him does not include the power to suspend him temporarily from his office. A mere suspension would not create a vacancy, and the anomalous and unfortunate condition would exist of an office, — an officer, — but no vacancy, and of no one whose right and duty it was to execute the office. (Pp. 100-102.) XVI.—POWER OF JUDICIAL NATURE The principle of separation of powers can not be invoked to deny the Supreme Court jurisdiction in this case, because to decide the question of validity or nullity of the Pendatun Resolution, of whether petitioners are illegally deprived of their constitutional rights and privileges as senators of the Philippines, of whether respondents must or must not be enjoined by injunction or prohibition from illegally and unconstitutionally trampling upon the constitutional and legal rights of petitioners, is a function judicial in nature and, not having been assigned by the Constitutional to other department of government, is logically within the province of courts of justice, including the Supreme Court. The power, authority, and jurisdiction to decide any question as to the allocation of powers by the Constitution are of judicial nature and belong to court of justice. In denying that power to the Supreme Court, respondents only add insult to injury by maintaining that there is no remedy for any usurpation being committed in adopting the Pendatun Resolution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of power between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescense for a

period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even this, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon the questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Angara vs. Election Commission, 63 Phil., 139, 157-159.) XVII.—SENATORIAL TERRORISM

There is much loose talk as to the inherent power of the Senate to adopt the unsconstitutional Pendatun Resolution for the self-preservation of the Senate, for its dignity and decorum. We are afraid that, by the facts publicly known to everybody, such talks serve only to reveal sheer hypocrisy. There is absolutely no showing that they are guilty of any disorderly conduct or of any action by which they may be subject to criminal prosecution, or that by their conduct they have become unworthy to have a seat in Congress. On the other hand, there are three senators who are under indictment for the heinous crime of treason before the People's Court, not for acts committed before their election, but for acts committed while they were already holding office as such senators. Respondents have not taken any action looking toward the suspension of said three senators. Although we do not propose to criticize respondents for this inaction, as the three senators undicted for treason must be presumed innocent unless and until they are finally convicted by the proper court, such inaction serves to emphasize the iniquitous discrimination committed against petitioners, who have not even been indicted before any court of justice for the slightest violation of law. The Pendatun Resolution invokes the report of the Commission on Elections as to alleged electoral irregularities in four Central Luzon provinces; but there is absolutely nothing in the resolution to show that petitioners had anything to do with said irregularities, and respondents themselves, in the canvass of votes for President and Vice President, had counted as valid all the votes cast in said Central Luzon provinces and had accepted as good ones the votes they themselves obtained therein. In fact, one of them occupied the first place in one of said provinces. This self-contradicting attitude has absolutely no defense in the judgement of any decent person. To this we must add that the Pendatun Resolution, in fact, misquotes the report of the Commission on elections in the sense that it tries to convey an impression contrary to said report by quoting parts thereof based on unverified and uncorroborated hearsay evidence, and ignoring its main conclusion in which it is stated that the alleged irregularities did not affect the orderly election in said provinces. There is much talk as to the alleged terrorism prevailing in the provinces in question during election, but there is absolutely no reliable evidence as to such terrorism that

can be found either in the report of the Commission on Elections or in the Pendatun Resolution. Even in the case that such terrorism really happened, there is no reason to make any pronouncement based on it without proper investigation by proper authorities, and in the present case the proper authority that must determine, if such terrorism did really take place and affect the election on April 23, 1946, concerning senators, is the Senate Electoral Tribunal. And until then there is no reason why respondents must themselves resort to senatorial terrorism in order to oppress, muzzle, and crush minority senators, such as petitioners. Congressional terrorism is no better than lawless terrorism. Because it is practised by despotice government officials does not make it holy and sacrosanct. XVIII.—NOBODY IS ABOVE THE LAW There are assertions to the effect that we may exercise jurisdiction against individual officers of the Senate, but not against the Senate or against respondents. We do not agree with such an unmanly attitude. We do not agree with the theory that the Supreme Court must exercise its judicial power to give redress to the victims of a usurpation only when its decision is addressed to minor officers of government, but not when it is addressed to minor officers of government, but not when it is addressed to powerful ones. We will incur a grave dereliction of duty if we should refuse to grant the redress that justice demands only and because we have to reverse an illegal and unconstitutional act committed by a legislative chamber, or a group of its members, specially if the group forms the majority, or by Congress itself. To show that under the Constitution nobody is above the law, we have only to refer to its provision which recognizes in the Supreme Court the power to nullify the declare unconstitutional an act enacted by Congress and approved by the President of the Philippines. A law passed by Congress is enacted with the direct participation of the two great departments of our government, the legislative and the executive. Nevertheless, if the law enacted is unconstitutional, the Supreme Court has the power to declare it so and deny effect to the same. The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States;

but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if act prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary

means, or it is On a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. xxx

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It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not

such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be given to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. Manbury vs. Madison (1 Cr., 137; 2 Law. ed., pp. 60, 73, 74) But we have found no better expression of the true principle on this subject than the language of Justice Hoar, in the Supreme Court of Massachusetts reported in 14 Gray, 226, in the case of Burnham vs. Morrissey. That was a case in which the plaintiff was imprisoned under an order of the House of Representatives of the Massachusetts Legislature for refusing to answer certain questions as a witness and to produce certain books and papers. The opinion, or statement rather, was concurred in by all the court, including the venerable Chief Justice Shaw; "The House of Representatives (says the court) is not the final judge of its own power and privileges in cases in which the rights and liberties of the subject are concerned, but the legality of its action may be examined and determined by this court. That House is not the Legislature, but only a part of it, and is therefore

subject in its action to the law in common with all other bodies, officers and tribunals within the Commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the Constitution and laws, because living under a written Constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the Legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not, to treat their acts as null and void. . . ." In this statement of the law, and in the principles there laid down, we fully concur. (Kilbourn vs. Thompson, 26 Law. ed., 377, 390.) Professor Edward S. Corwin, in this book "The Twilight of the Supreme Court," says: The pivotal proposition was set up that between the making of law and its construction was an intrinsic difference of the most vital nature; and that since the latter function was demonstrably a daily concern of courts, it followed necessarily that the legislature might not perform it in a way to produce finally binding results. Applied to the Constitution, this reasoning automatically produces judicial review. As Marshall insists inMarbury vs. Madison, the Constitution, a solemn act of the people themselves, was made to be preserved, and no organ of government may alter its terms. But interpretation, which belongs to the courts exclusively and is "their peculiar and proper province," does not change the law, it conserves it. By the same token, judicial interpretation of the Constitution is vested with the authority of the Constitution itself. (P. 110.) A passage in Cicero's De Legibus, the substance of which was later recalled by Coke,

describes the law as "the silent magistrate" and the magistrate as "the law speaking." Despite the apparent implication of these words, the Roman Law would seem to have regarded interpretation as primarily an extension and condition of the process of law making, as the maxim "curius est cendere est interpretari" appears to bear witness. Reciprocally, the official attitude of the common law has not always escaped skeptical comment. A yearbook of the fourteenth century records a dispute among the judges over whether they were enforcing reason or only their own will, and two hundred years later we find an Elizabethan bishop asserting flatly: "Whoever that an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them." Suppose the good bishop had known of the Constitution of the United States, a law first spoken in 1789 and subject 150 years later to the "absolute authority" of the Supreme Court to interpret it! (Pp. 112-113.) What gives the coup de grace to the idea that — in the words of Chief Justice Marshall — "courts are the mere instruments of the law and can will nothing," is the simple fact that most so-called "doubtful cases" could very evidently have been decided just the opposite way to which they were decided without the least infraction of the rules of logical discourse or the least attenuation of the principle of stare decisis. (P. 114.) In short, decision is choice; the very circumstance which produces doubtful cases guarantees the Court what Justice Holmes has termed "the sovereign prerogative of choice" in deciding them. This circumstance may be described as a factual situation which forthwith divides, as it were, the acknowleged body of established law as far as it bears upon the said facts into two opposed — two antinomous — camps. (P. 115.)

Should the Constitution be construed "strictly" or "liberally"? That depends logically on whether it came from the people at large or from state sovereignties. Then there is the antimony of "inclusive" versus "exclusive" construction — in Marbury vs. Madison Chief Justice Marshall invoked the latter principle, in McCulloch vs. Maryland he invoked the former. Again there is the issue whether the Court's mandate to interpret the Constitution embraces the power and duty of adopting it to change circumstances. Marshall thought that it did, while Taney repudiated any such mission for the Court; and in the recent Minnesota Moratorium Case the Chief Justice takes as his point of departure Marshall's doctrine, while Justice Sutherland, dissenting, builds upon Taney's doctrine. Furthermore, there are those diverse attitudes of a shifting majority of the Bench which, though they may never have found clear-cut expression in antithetical principles of constitutional construction, have given rise none the less to conflicting courses of decision, the potential bases of future opposed arguments which either counsel or the Court may adopt without incurring professional reproach. In brief, alternative principles of construction and alternative lines of precedent constantly vest the Court with a freedom virtually legislative in scope in choosing the values which it shall promote through its reading of the Constitution. (P. 117.)

by human reason, and that of a body of ordinances assertive of human will and owing its binding force thereto. The idea of a "government of laws and not of men" originally predicated the sway of the former kind of law and a "legislative power" which was merely a power to declare such law, and hence was indistinguishable in principle from "judicial power." But as we saw in the previous chapter, the very essence of the American conception of the separation of power is its insistence upon the inherent distinction between law-making and law-interpreting, and its assignment of the latter to the judiciary, a notion which, when brought to bear upon the constitution, yields judicial review. For all that, the idea that legislative power embraces an element of law-declaring power has never been entirely expelled from our inherited legal traditions, while, conversely, modern analysis of the interpretative function exercised by courts plainly discloses that it involves unavoidably an exercise of choice substantially legislative in character; and especially is this so as the Supreme Court's interpretations of the national Constitution, on account of the wealth of alternative doctrines from which the Court may at any time approach its task of interpretation. In short, the meaning of "a government of laws" in our constitutional law and theory is government subject to judicial disallowance. (Pp. 146, 147.) XIX.—PARALLELISM WITH THE ANGARA CASE

The concept of a "government of laws" simmers down, therefore, under the Constitution to a power in the Supreme Court which is without statable limits to set the metes and bounds of political authority in both the nation and the states. But the dominating characteristic of judicial review, wide-ranging though it be, is that it is ordinarily or negative power only — a power of refusal. The Court can forbid somebody else to act but cannot, usually, act itself; in the words of Professor Powell, it "can unmake the laws of Congress, but cannot fill the gap." (P.122.) To summarize: From legal history emerge two conceptions of law — that of a code of intrinsic justice, not of human creation but discoverable

No better precedent may be invoked to decide several important questions raised in this case than the decision rendered by this very Supreme Court in Angara vs. Electoral Commission, supra, which may be considered as an outstanding milestone in Philippine jurisprudence. The facts and legal issues in said case are in exact parallel with the ones in the present controversy. Then, there was a conflict between two independent departments or organs of government, the National Assembly and the Electoral Tribunal. Now the conflict is between two equally independent departments or organs of government, the Senate and the Senate Electoral Tribunal. The differences between the contending parties consist in: (a) that while

the former National Assembly constituted the whole legislative department, the present Senate is but a part of the legislative department; (b) that the National Assembly that adopted the resolution then in question and, finally, declared by this Supreme Court as unconstitutional, null, and void, acted as a body, with undisputable quorum and regularity; while the Pendatun Resolution was adopted by but 12 senators or the majority Liberal Party, when there was no quorum present in the Senate. There is also an accidental difference in the fact that, in the Angara case, the Electoral Commission was the respondent and the National Assembly was not a party, although 6 members thereof were also parties in the case, they constituting a majority of two-thirds of the Electoral Commission membership; while the present case, the Senate Electoral Tribunal is not a party, and the respondents are the majority members of the Senate, which is but a branch of Congress. In both cases the legislative department upon which the legislative power was vested by the Constitution — the National Assembly in 1936 or Congress in 1946 — is definitely not a party. Another difference between the two cases is the fact that in the Angara case, petitioner sought to nullify a resolution of the Electoral commission because it was in conflict with one previously adopted by the National Assembly. The Supreme Court, is denying the petition, nullified instead the resolution of the National Assembly as adopted without the powers vested in it by the Constituiton. In the present case, petitioners pray for the annulment of the Pendatun Resolution which the respondents or the Senate could not and cannot adopt without transgressing the Constitution. Many of the conclusions and pronouncements of the Supreme Court in the Angara case may appear as if written expressly to decide several of the very legal issues raised in the present case. This will readily appear if we should read "Senate" and "Senate Electoral Tribunal," respectively, in lieu of "National Assembly" and "Electoral Commission," in the following summarized conclusion in said case: (a) That the government established by the Constitution follows fundamentally the theory of separation of powers into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted.

clear and complete, and carried with it ex necessitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests.

(c) That in case of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority. (e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any other two departments of the government. (f) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly. (g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the election, returns, and qualifications of their elective members. (h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the election, returns and qualifications of its members, to the Electoral Commission. (i) That such transfer of power from the legislature to the Electoral Commission was full,

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest. (l) That confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. (m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed. (Angara vs. Electoral Commission, supra.)

Without the slightest ambiguity, in perspicuous and clearcut language, the Supreme Court stated the real conflict, grave and transcendental, in said case as follows: Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. (Angara vs. Electoral Commission, supra.) The Supreme Court then, in the full consciousness of the far-reaching importance of the pronouncement it had to make, with manly courage stated: From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. . . . Conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary injusticiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our Constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. . . . The nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the

Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." (Angara vs. Electoral Commission, supra.) Where the Supreme Court wrote "Electoral Commission" in the last preceding lines, we may also write as well "Senate," "House of Representatives," "Congress," "Senate Electoral Tribunal," "House Electoral Tribunal," or any other constitutional body. The above pronouncements of the Supreme Court made in the ringing words penned by Justice Jose P. Laurel who, with President Roxas, Justice Briones, Justice Hontiveros, former Justices Romualdez and Recto, and several others, was among the leaders and most prominent figures in the constitutional convention, we believe will sound through the ages as the expression of permanent truth and undisputable wisdom. Since the words have been written, the question as to the Supreme Court's jurisdiction to take cognizance and decide controversies such as the present one and to grant redress for or against parties like those included in this litigation, has been unmistakably definitely and definitely settled in this jurisdiction. XX.—THREE DIFFERENT EDITIONS OF A SENTENCE Regret can not be repressed when, upon reading the majority opinion, one notices that, in the very first paragraph heading it, truth is unwittingly immolated by, as a counterpart of the Pendatun Resolution and without the benefit of any ritual, attributing to the Commission on Elections an assertion which in fact it did not make. The Commission is represented to have fathered the statement that in the Provinces of Pampanga, Nueva Ecija, Bulacan and Tarlac, voting "did not reflect the true and free expression of the popular will." This assertion is the third revised edition of a 3-line sentence appearing in the report of the Commission on

Elections. For clearness, we will reproduce the three editions, the original one and the amended two:. First edition.—In the report of the Commission on Elections, the sentence reads as follows: It is believed that the election in the provinces aforesaid did not reflect the true and free expression of the popular will. Second edition—The drafter of the Pendatun Resolution, who appears to be ready to sacrifice truth if it is necessary to serve or bolster his interests and purposes, in reproducing said statement, without any compunction or scruple, changed the words "it is believed" to the words "This Commission believes" as follows: This commission believes that the election in the provinces aforesaid did not reflect the true and free expression of the popular will. Third edition.—In the majority opinion the idea of belief by third persons, contained in the report of the Commission, and the idea of belief by the Commission, attributed in the Pendatun Resolution are eliminated and substituted by a positive statement by the Commission on Elections of a categorical and conclusive nature as follows: The Commission on Elections . . . stated that . . . the voting in said region did not reflect the true and free expression of the popular will. The discrepancy is emphasized by reading the following paragraph of the report of the report of the Commission on Elections: Except for alleged suppression of the popular will in the Provinces of Pampanga, Tarlac, Bulacan and certain municipalities of Nueva Ecija wherein the voters were allegedly intimidated or coerced by the Hukbalahaps and other lawless elements to such an extent that the election in said provinces is considered a farce, not being the free

expression of the popular will, the elections throughout the country were carried on peacefully, honestly and in an orderly manner, as a result of which the respective representatives-elect for all the provinces throughout the country have been duly proclaimed by the various boards of provincial canvassers, and the Commission on Elections on May 23, 1946, also proclaimed those elected senators in accordance with section 11 of Commonwealth Act No. 725. (Emphasis supplied.) From the foregoing, it is evident: (1) that the alleged suppression of the popular will in Pampanga, Tarlac, Bulacan, and certain municipalities of Nueva Ecija is mentioned by the Commission only as a hearsay information that the Commission itself, contrary to the idea which the Pendatun Resolution or the majority opinion conveys, does not accept; (2) that to emphasize the Commission's refusal to accept the unverified information, it explicitly and conclusively manifested that "the elections throughout the country were carried on peacefully, honestly and in an orderly manner, as a result of which the respective representatives-elect for all the provinces throughout the country have been duly proclaimed elected by the various boards of provincial canvassers, and the Commission on Elections on May 23, 1946, also proclaimed those elected senators in accordance with section 11 of Commonwealth Act No. 725." An abiding respect for truth compels us to point out the above glaring error of fact, which is just a fitting prelude and milieu to a long chain of errors of law spread over the opinion of the majority, resulting in conclusions that we are sure will fail to withstand the test of posterity. XX-A.—UNJUSTIFIED AND RECKLESS PRONOUNCEMENTS The error of reading the report of the Commission on Elections assertions contrary to the ones appearing therein, induces the majority to make pronouncements which are necessarily groundless and unjustified, because premised on assertions not borne out by the truth.

Thus, in justifying the adoption of the Pendatun Resolution, the majority assert that "there are reasons to believe it was prompted by the dictates of ordinary caution, or of public policy" for "if, as reported by the corresponding constitutional agency" (the Commission on Elections), the elections held in the provinces of Pampanga, Bulacan, Tarlac, and Nueva Ecija" were so tainted with acts of violence and intimidation, that the result was not the legitimate expression of the voters' choice, the Senate made no grievous mistake in foreseeing the probability that, upon proof of such widespread lawlessness, the Electoral Tribunal would annul the returns in that region (seeGardiner vs. Romulo, 26 Phil., 521; Laurel, Elections[2d Ed.], p. 448 et seq.), and declare herein petitioners not entitled to seats in the Senate." Taking as point or departure the false assumption, that of attributing to the Commission on Elections a statement that, upon the very face of its report, is contrary to what it made, the majority, not only attribute to the respondent majority of the Senate preternatural prophetic foresight, taking for granted what the Senate Electoral Tribunal will do, but by making the pronouncement pretend to assume an improper role, the one by which, in effect, they pretend to direct and dictate to the Senate Electoral Tribunal what it should do in the pending electoral protests against petitioners, thus recklessly prejudicing the decision and disposal of a litigation pending in an independent tribunal with exclusive and final constitution jurisdiction over said litigation. On second thought, it seems that the majority try, with an apologetic attitude, to recede from the bold position of practically announcing what the Senate Electoral Tribunal, three members of which are Justices of the Supreme Court, will do, by beginning to state that "there should be no diversity of thought in a democratic country, at least, on the legal effects of the alleged rampant lawlessness, root and basis of the Pendatun Resolution," and ending with the following paragraph: However, it must be observed and emphasized, herein is no definte pronouncement that terrorism and violence actually prevailed in a district to such extent that the result was not the expression of the free will of theelectorate. Such issue was not tendered in these proceedings. It

hinges upon proof to be produced by protestants and protestees at the hearing of the respective contests. We can not but regret that the endeavor is futile, because it can not subtract a scintilla from the boldness of the pronouncement emphasized with the following reiteration: "True, they may have no direct connection with the acts of intimidation; yet the votes may be annulled just the same, and if that happens, petitioners would not be among the sixteen senators elected." Furthermore, the recession seems only to be apparent, used as a breathing respite, preparatory to another onslaught, on less unjustified, reckless, and out of reason. Commenting on section 12 of Commonwealth Act no. 725, the majority restrict the provision to those candidates whose proclamation "is clear, unconditional, unclouded," adding — and here comes the aggressive thrust, prejudging petitioners on the basis of an unfounded surmise — "that such standard is not only met by the petitioners, because is the very document attesting to their election one member of the Commission on Elections demurred to the non-exclusion of the votes in Central Luzon, calling attention to the reported reign of terror and violence in that region, and virtually objecting to the certification of herein petitioners. To be sure, it was the be clouded condition of petitioners' credential (certificate of canvass) that partly prompted the Senate to enact the precautionary measure herein complained of." The attack does not stop here. It goes even further when, adducing as argument by analogy, an uncharitable example is used by comparing the situation imagined without any evidentiary foundation on fact by the dissenting minority of one in the Commission on Elections with the case if "the inclusion of petitioners" name in the Commission's certificate had been made at the point of a gangster's automatic," although adding that " the difference between such situation and the instant litigation is one of degree, broad and wide perhaps, . . . . XXI.—FUTILE EFFORT TO NEUTRALIZE THE SWEEPING EFFECT OF DECISION IN ANGARA CASE

In a futile effort to neutralize the sweeping effect of the decision of this court in the Angara case, the majority assume unfoundedly that in said case "no legislative body or person was a litigant before the court," and that "no directive was issued against a branch of the Legislature or any member there of" the statements being premised on the error of fact and law that two-thirds of the members of the Electoral Commission were assemblymen. The fact that this court, in the Angara case, made declarations nullifying a resolution of the National Assembly is, according to the majority, "not decisive," when a better precedent can hardly be cited to show the practical exercise by the Supreme Court of its power to declare null and void any legislative resolution violative of the fundamental law. The majority recognize the power of this court to annul any unconstitutional legislative enactment, citing as authorities the epoch-making decision of Chief Justice Marshall in Marburry vs. Madison, and the following pronouncement of Justice Sutherland in the Minimum Wage Case (261 U. S., 544): . . . The Constitution, by its own terms, is the supreme law of the land, emanating from the people, the repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand, is the act of an agency of this sovereign authority, and if it conflicts with theConstitution, must fall; for that which is not supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the judicial power — that power vested in courts to enable them to administer justice according to law. From the authority to ascertain and determine the law in a given case there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect, and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.

If the above reasoning is accepted by the majority with respect to a law enacted by two Houses of Congress and approved by the Chief Executive, there is absolutely no logic in denying its applicability to mere resolutions adopted by just a legislative branch, by the Senate alone, or by a group of senators acting collectively when the Senate is without quorum. The Supreme Court has the power to declare null and void such resolutions when they are in conflict with the Constitution, the same as the acts of the President as, according to the decision rendered by this court in Planas vs. Gil (67 Phil., 62, 73, 74), cited with approval by the majority, the Supreme Court has the power of "making an inquiry into the validity or constitutionality of his(the Chief Executive's) acts when these are properly challenged in an appropriate legal proceeding." The majority, accepting the pronouncement in the Angara case that this court could not decline to take cognizance of the controversy to determine the "character, scope and extent" of the respective constitutional spheres of action of the National Assembly and the Electoral Commission, maintain that in the present case, there is actually no antagonism between the Electoral Tribunal of the Senate and the Senate itself, "for it is not suggested that the former has adopted a rule contradicting the Pendatun Resolution." This assertion is based on the wrong idea that in order that antagonism may exist between two independent bodies, the attacks should be reciprocal and bilateral, and it is not enough that one should rashly invade the province of the other. The theory is parallel with the Japanese insistence in calling what they term "China Incident" because China was not able to invade in her turn the Japanese mainland of Honshu. XXII.—FALLACIOUS ARGUMENT It is argued by the majority that conceding that petitioners' suspension is beyond the power of the respondents, the petition should be denied, because for this court to order the reinstatement of petitioners "would be to establish judicial predominance, and to upset the classic pattern of checks and balances wisely woven into our constitutional setup." The argument is utterly fallacious. There can be no more judicial predominance because the Supreme Court, without shirking its responsibility, should order that petitioners be reinstated in the full exercise of their

constitutional rights, functions and prerogatives, of which they were deprived, in flagrant violation of the fundamental law, than there will be legislative predominance because Congress should refuse to be cowed into prevarication in the exercise of its legislative powers, or executive predominance because the President would not allow denial of his executive functions. And the pattern of checks and balances is not disrupted because the Supreme Court should proceed to perform its judicial duty by granting petitioners the legal redress to which they are entitled. The indictment of volubility flung by Lord Bryce against the Supreme Court of the United States, resulting from "the political proclivities of the man who composed it," is quoted by the majority in order to support the rule of conduct that "adherence to established principle should generally be our guiding criterion." We underline generallybecause we prefer it to the word invariably, as, otherwise, we will expose ourselves to the English author's indictment, and with more reason if we should reverse the doctrines and principles enunciated in the Angara case in order not to displease a controlling majority in the Senate.

imagine that the independence and equal importance of legislative bodies, under the Constitution, should be precariously built upon the unstable and shifting quagmire of immoral immunity to punishment for contempt, an offense punishable under all modern systems of criminal law. Dogmatizing ex cathedra, the majority preached that we must "disabuse our minds from the notion that the judiciary is the repository of remedies for all political and social ills." Shooting in the dark of fantastic hobglobins, insufflated with extraterrestrial life by supercreative imagination, might be an amusing sport, but is misleading in juridical controversy. No one has ever entertained the false and laughable notion that the judiciary may afford remedies "for all political and social ills." No one, unless he be a paranoiac mogalomaniac, may pretend to be the happy possessor of any political or social panacea. The argument is irrelevant because, in the case, we are dealing with a constitutional wrong which, under the fundamental law, can and must be redressed by the judiciary. XXV.—FLAGRANT INCONSISTENCY

XXIII.—NOT DEMIGODS OUTSIDE THE REACH OF LAW Should respondents disobey any order we may issue in this case, the majority ask, can we punish them for contempt? Of course. They are not demigods, duces, fuehrers, or nippon emperor divinities, who are outside the reach of law. They do not pretend that they are like the king of France who said L'etat c'est moi. But, why should we render respondents the disservice of entertaining the false hypothesis that they may disobey any order we may legally issue? Our people were not crazy enough to elect anarchists to our Senate.

A citizen, deprived of liberty by a resolution to incarcerate him for years, illegally and unconstitutionally adopted by a legislative chamber, according to the majority, may not be denied relief by the courts and "may successfully apply for habeas corpus, alleging the nullity of the resolution and claiming for release," invoking as authorities Lopez vs. De los Reyes (55 Phil., 170) Kilbourn vs. Thompson (103 U. S., 168; 26 Law ed., 377). The reason is because the resolution is beyond the bounds of the legislative power, is a usurpation of functions belonging to courts, is an infringement of the Constitution, which is precisely the case of the Pendatun Resolution. But the majority would then have only as defendant the officer or person holding the victimized citizen in custody, which officer or person might be a senator or a group of senators.

XXIV.—BUILT ON PRECARIOUS FOUNDATION The majority's inconsistency can not be hidden. The majority insist, notwithstanding, in arguing that if we should punish respondents for contempt because they should have disobeyed an order of ours, we would be destroying the independence and equal importance of legislative bodies, under the Constitution. We would never

XXVI.—ELECTION CONTESTS—WRONG DEFINITION

The majority maintain that not all the powers of the House or Senate as "the sole judge of the election, returns and qualifications of the members" thereof were transferred to the Electoral Commission, but only "all contests" relating to said election, returns and qualifications. But the use of the words "all contests" in the Constitution does not affect or limit the transfer of all powers as "the sole judge of the election, returns and qualifications" of the legislative members, because these all powers have always been, from the very beginning, circumscribed by the word "contests." The very words "the sole judge" imply necessarily contests, because if there is no contest, there is nothing to be judged. The majority adhere to the following quotation: "As used in the constitutional provisions, `election contest' relates only to statutory contests in which the contestants seek not only to oust the intruder, but also to have himself inducted into office." (Laurel on Elections, 2d ed., p. 250; 20 C. J.,58.)The assertion is wrong because there are election contests in which the contestants do not seek to be inducted into office, as when the contestants do not pretend to have won in the election and, admitting that the protestee obtained the majority votes, should, however, be ousted because he is unqualified. The example of a man, disqualified for having served a long term of imprisonment, elected to either House of Congress, is a good one not in support of the majority's theory that the House may, upon its authority, investigate and exclude the disqualified person, but to show that the election may be contested before the corresponding Electoral Tribunal in a proper contest, without the protestant seeking to be himself seated. XXVII.—UNCONSTITUTIONAL THEORY The majority's theory that an election contest does not ensue when a member of the House raises a question as to the qualification of another because the former does not seek to be substituted for the latter, is based on the wrong definition of an election contest, the one limiting it to cases wherein protestants seek also to have themselves inducted into the contested office. Having for its basis a wrong premise, the theory can not be correct. The election contests mentioned in section 11 of Article VI of the

Constitution include contests "relating to qualifications" of the respective members of the Senate and of the House of Representatives. To maintain that either House may investigate and thereafter exclude a disqualified member, is to maintain a constitutional heresy. An insistent effort to justify and approve an action that violates elemental standards of law and justice, such as the Pendatun Resolution, may often lead one to advancing unwittingly the most expected theories. Invoking as authority the erroneous statement made by one of the attorneys for petitioners during the oral argument to the effect that the power to defer the oath taking until the contest is adjudicated does not belong to the corresponding Electoral Tribunals, the majority gleefully jumps to the conclusion that "then it must be held that the House or Senate still retains such authority, whether we believe that such power (to delay induction) stemmed from the privilege of either House to be the judge of the election, returns, and qualifications of the members thereof, or whether we hold it to be inherent to every legislative body as a measure of self-preservation. Thus we see that the majority seem reluctant to accept the new constitutional setup by the creation of the Electoral Commission, later substituted by the Electoral Tribunals. They would rather stick to the old order of things when the majority of the Senate and the House of Representatives before the Commonwealth were the absolute dictators of the election, returns and qualifications of the members of the respective legislative chambers, when they boldly assert that either House has "the privilege to be the judge of the election, returns and qualifications of the members thereof." XXVIII—THE CHARACTER AND PHYSIOGNOMY OF THE CONSTITUTION The discussions as to the character of the legislative power vested in Congress gives way to a confusion of ideas due mainly to lack of discrimination between preconceived constitutional ideas, ingrained in the mind during university training, and the actual provisions of the Constitution of the Philippines, which enjoy outstanding and substantial advantages over older ones, because the delegates to our constitutional convention embodied in it

new precepts and principles based on the lessons of one century and a half experience of American and European countries in constitutional government and four decades of Philippine constitutional history and last juridical and idealogical discoveries. Whether the Constitution of the United States is only a grant or delegation of legislative powers to the federal government and the American state constitutions are mere limitations of plenary powers of legislation, having nothing to do with the true character and physiognomy of our own Constitution which we must examine, not on the mirror of other constitutions, but on the face of its own concepts, precepts and provisions, and there we will see at once that our Constitution is both a grant and a limitation of powers of government decreed by our people, on whom sovereignty resides and from whom all government authority emanates. (Section 1, Article II of the Constitution.) The sovereign people is the repository of all powers of government, in fact, also political and social powers. From them emanate, not only all government authority, but the plenary and unlimited power of society which is the foundation of government. Social order is established and maintained by the will of the people. The people is the absolute master of his own destiny. The people is the holder of the universality and residuum of all human powers. This being a natural conviction of humanity since time immemorial although not always articulate and vocal, to justify the absolutism of kings and emperors, it had been necessary to create the fiction of the divine genesis of their authority, imposed on the ignorance and religious credulity of superstitious masses, so much so that in certain epochs of history the position of high priest and king were merged in the same individual. And those who would attach to a high officers of government, no matter in what department, any kind of monarchial or oligarchical absolutism, unlimited because placed above the law and not controllable by the provisions of the Constitution or any agency existing under its authority, are only trying to perpetuate the worn-out tradition of the divine origin of the despotic rulers of the past. To our mind, no power of government may be exercised by any branch, agency or officer thereof unless expressly or implicitly granted by the people through the Constitution. Subject to the limitations provided therein and in accordance with express provisions, the residuum of legislative, executive and judicial powers, respectively, are

vested in Congress, the President, and the Supreme Court. It is wrong to maintain that any legislative power is vested exclusively in the Senate. The legislative power is vested in Congress, composed of the Senate and the House for Representatives, and not in any of its branches alone.

"Sufferance is not always a virtue; it is a crime when it encourages tyrannies." Let us not disguise such kind of resignation under the inoffensive name of judicial prudence. Burke said: "There is also a false, reptile prudence, the result not of caution, but of fear." Fear, as favor, should not have place in judicial vocabulary.

XXIX.—RIZALIAN ADMONITION ON TOLERANCE

XXX.—CONSTITUTIONALISM

Although there is absolutely nothing in the report of the Commission on Elections or in the Pendatun Resolution itself which imputes upon petitioners any act of disorderly behavior, it not appearing that they have anything todo with alleged irregularities and terrorism in the four provinces of Central Luzon, yet had the Senate elected to deprive petitioners of their seat in the Senate under the power to punish and expel a member for disorderly behaviour provided in section 10 (3) of Article VI of the Constitution, and the Senate adopted the Pendatun Resolution in pursuance thereof, the majority of this court would still dismiss the petition. It appearing that not twothirds of all members of the Senate concurred or could concur in the adoption of the Pendatun Resolution and, therefore, under the constitutional provision invoked, the deprivation of petitioners of their seat in the Senate would appear as a flagrant transgression of the fundamental law, the majority of this court would still shield respondents with the palladium of judicial noli me tangere. Respondents must be very extraordinary beings to enjoy such an immunity from even the most shocking and tyranical violation of theConstitution.

The present nuclear physics of a far cry from the more than twenty-five centuries old theory enunciated by Democritus in the following words: "By convention sweet is sweet, by convention bitter is bitter, by convention hot is hot, by convention cold is cold, by convention color is color. But in reality there are atoms and the void. That is, the objects of sense are supposed to be real and it is customary to regard them as such, but in truth they are not. Only the atoms and the void are real."

The majority would counsel prudence and comity and admonish to heed the off-limits sign at the Congressional hall, firm in the belief that "if apolitical fraud has been accomplished, as petitioners aver, the sovereign people, ultimately the offended party, will render the fitting verdict — at the polling precint." We are reluctant to wash our hands so easily. We can not remain comfortably seated in the highest tribunal of the land nor reconcile with our conscience by abstaining to give the relief we are duty bound to give the victims of a political fraud which constitutes a wanton trampling down of the rights and privileges guaranteed by the Constitution. Let us not so easily forget the Rizalian admonition:

The heated controversy between Ptolemy and Copernicus, the discoveries of Galileo and Newton, are just small incidents in the perennial struggle in which man is engaged to be, through science, fully acquainted with the truth about our universe. It takes 1,600 years for one-half of a gram of radium to disintegrate, and it takes one second for light to travel 186,300 miles; formerly matter and energy were essentially different things, but now solid matter is but concentrated energy, and energy has weight; it is not yet answered whether light is wave of a shower of photons, but it is known that it can be weighed. The theory of relativity, opened new vistas in the panorama of science, but new riddles meet man in the great adventure to the unknown. Albert Einstein said: Yet new, still more difficult problems arise which have not been definitely settled as yet. We shall mention only some of these unsolved problems. Science is not and will never be a closed book. Every important advance brings new questions. Every development reveals, in the long run, new and deeper difficulties." (The Evolution of Physics, p. 308.) All theories which, in their day, served useful scientific purposes, had to give way to others giving better explanations of physical phenomena. The prevailing

theories may not resist the onslaught of new intellectual discoveries, but because they may eventually be discarded themselves is no reason to dispense with them when, in the meantime, they are only ones that can satisfy reason. Otherwise, science will be crippled. Paralysis will keep her from new advances. By the same token, in the history of law, man had to stick in each epoch to the known as the best of legal institutions. In the millenia of human life no more wonderful legal institution was devised by man than constitutionalism, the evolution of which is one of the most inspiring chapters of history. A mere religious concept, giving voice to moral law, in Israel, a philosophical concept, merely normative, in Greece, it was in republican Rome where it took a definite legal and political force as the basis of jurisdiction as distinguished fromgobernaculum, the reason of the law as opposed to the power of government. In England for the common law to prevail over the prerogative of the crown it took several hundred years of bitter struggle. But fate had it that in America is where the evolution of constitutionalism had to reach its highest accomplishment. It became the basis of the government of the United States from its very inception. Now constitutionalism for the world is envisaged as the only hope of humanity to attain the goal that will insure juridical order for the world, so that men's inventions, including those ominous on nuclear energy, may be placed under adequate social control. The hope of the Republic of the Philippines lies also on constitutionalism. Not the one that would merely offer lip service to the Constitution, but that would make of that document as one of the living tissues of our body politic, absolutely indispensable to its own existence. XXXI.—THE MOST VITAL ISSUE The validity of the Constitution of the most vital issue involved in this case. If no one must be allowed to be above the law, with greater reason no one should be allowed to ignore or to trample upon the provisions and mandates sacred by all persons living under the pale of the Republic of the Philippines, and not rocked of as an insignificant pushpin to toy with.

Burning with the thirst of immortality, shepherd Erostratus burned the temple of Ephesus to gain a berth in history. Let us not make of the Constitution of the Philippines another temple of Ephesus. It is much better to be buried in the dust of eternal oblivion than to permanently live in the memory of future generations as guilty of arson, as rivals of the barbaric hordes who destroyed the great works of art of Greece and Rome, or the contemporary vandals who destroyed without any compunction churches and schools, treasures of noble human institutions, or other works wherein the loftiest ideals and aspirations of man have blossomed with imperishable grandeur and beauty. Letus spare the Constitution from the deleterious effects of our prejudices and from the ravages of blind passions. Let us keep it as an underlying beacon of hope, the indestructible foundation of our national existence, the inexpugnable citadel of the rights and liberties of our people, the eternal rock upon which the Republic of the Philippines shall forever subsist with dignity. The pamphlet in which it is printed may wizen and shrivel, its paper rived into shreds, the shreds pulverized into dust and ashes, and these reduced into infinitesimal atoms which will finally scatter in the wide universe, to form new substances. But the juridical sense of our people, crystallized in that pamphlet and permeating that paper, embodied in the great document, like the mythological phoenix of Arabia, undergoing the five hundred years cycle of resurrection, shall again and again rise in youthful freshness from the scattered ashes and atoms, the undying symbol of the spirit of law, the flaming banner of justice, the magnificent expression of the undaunted willpower to live.

Camara de Representantes inauguraron se periodo de sesiones reuniendose por primera vez el 25 mayo. Uno de los primeros documentos que seleyeron en el Senado fue la roclama expedida por la Comision sobre Eleccionescuyo texto integro se transcribe a continuacion: CERTIFICATE OF CANVASS BY THE COMMISSION ON ELECTIONS OF RETURNS OF VOTES FOR THE OFFICE OF SENATOR AND PROCLAMATION OF THE CANDIDATES ELECTED IN THE ELECTIONS HELD ON APRIL 23, 1946. We, the undersigned, constituting the Commission on Elections, do hereby certify that, pursuant to the provisions of section 11 of Commonwealth Act No. 725, we have made the canvass of the votes cast in the Philippines for the office of Senator in accordance with the statements submitted by the Provincial Board of Canvassers of the different provinces and the City Board of Canvassers of Manila, and that the result thereof shows the following sixteen (16) registered candidates to have received the highest number of votes:

Name of candidates

1. Vicente J. Francisco

3. Jose Avelino 4. Melencio Arranz 5. Ramon Torres 6. Tomas Confessor

BRIONES, M., disidente: 7. Mariano Jesus Cuenco Despues de las elecciones generales de 23 abril, 1946, en que fueron elegidos el Presidente y Vice Presidente de Filipinas y los miembros del Congreso, el senado y la

10. Alejo Mabanag 11. Enrique B. Magalona

2. Vicente Sotto The petition must be granted, and the preliminary injunction of May 29, 1946, must be reissued and made perpetual.

9. Olegario Clarin

8. Carlos P. Garcia

12. Tomas Cabili 13. Jose O. Vera 14. Ramon Diokno 15. Jose O. Vera 16. Salipada E. Romero

In view of the above result, we hereby proclaim that the above-named sixteen(16) registered candidates are the duly elected Senators in the election held on April 23, 1946. We further certify that Vicente J. Francisco, Vicente Sotto, Jose Avelino, Melecio Arranz, Ramon Torres, Tomas, Confesor, Mariano Jesus Cuenco and Carlos P. Garcia received the Votes first eight (8) highest number of votes, and that Olegario Clarin, Alejo Mabanag, received Enrique B. Magalona, Tomas Cabili, Jose O. Vera, Ramon Diokno, Jose E. Romero and Salipada Pendatun 735,671 received the next eight (8) highest number of votes. 717,225 708,420 We further certify that the attached statement of votes shows the number of votes polled by each candidate for the Office of Senator 666,700 in the Philippines by provinces. 640,477 In witness whereof, we have signed these presents in the City of Manila, this627,354 23rd day of May, 1946. 623,650 (Sgd.) JOSE LOPEZ VITO

617,542

Chairman (Sgd.) FRANCISCO ENAGE Member

I concur in toto, except as regards the proclamation of the 16 Senators-elect, on the basis of the canvassing of all the votes cast in their favor, without excluding those of Central Luzon. (Separate opinion prepared.)

(Sgd.) VICENTE DE VERA Member

Acto seguido procediose a la eleccion del Presidente del Senado saliendo elegido como tal el candidato de la mayoria Hon. Jose A. Avelino que obtuvo 10 votos contra el candidato del partido de la minoria Hon. Jose O. Vera que obtuvo 8. Tanto el Sr. Vera como sus correcurrentes Sres. Diokno y Romero tomaron parte en la votacion. Elegido el Presidente se iba a proceder a la toma del juramento colectivo de los Senadores electos, pero en esto el Senador Hon. Salipada Pendatun presento para su aprobacion un proyecto de resolucion cuyo texto tambien se transcribe integro a continuacion: Whereas, the Commission on Elections, charged under the Constitution with the duty of insuring free, orderly, and honest elections, in the Philippines, reported to the President of the Philippines on May 23, 1946, that "On election day, altho no acts of violence were officially reported to this Commission in connection with the elections, we were advised by our representative in Nueva Ecija that ballot boxes were stolen by armed bands in the barrios of the municipalities of Bongabon, Gapan, Sta. Rosa and Guimba. These incidents are still under investigation

by the Military Police Command. After the election we cannot fail to notice the reports published in the newspapers on the attacks that have been made by armed bands upon persons or group of persons who were known to have voted for candidates other than the candidates of those armed elements. Even the report submitted to this Commission by the Provost Marshal General on May 20, 1946, . . . contains a recital of incidents of terrorism that occured in the four provinces of Central Luzon herein above mentioned which disturbed or affected the national election in an undesirable manner. Reports also reached this Commission to the effect that in the provinces of Bulacan, Pampanga, Tarlac and Nueva Ecija, the secrecy of the ballot was actually violated; that armed bands saw to it that their candidates were voted for; and that the great majority of the voters, thus coerced or intimidated, suffered from a paralysis of judgment in the matter of exercising the right of suffrage. Considering all those facts of terrorism, violence and intimidation in connection with elections which are more or less general in the provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, this Commission believes that the election in the provinces aforesaid did not reflect the true and free expression of the popular will. It should be stated, however, that the Commission is without jurisdiction, to determine whether or not the votes cast in the said provinces which, according to these reports have been cast under the influence of threats or violence, are valid or invalid. Suffice to state that in accordance with the provision of Article 1, section 2, of the Constitution, "The Commission on Elections shall have exclusive charge of the enforcement and administration

of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide — save those involving the right to vote — all administrative questions, affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials . . ." and that the question of whether or not a vote has been cast legally or illegally is not for this Commission to determine. The matter is therefore being brought to the attention of the President and Congress of the Philippines for such action as may be deemed proper pursuant to the requirements of the Constitution that this Commission submit after every election a report to the said offices on the manner the election was conducted." WHEREAS, the minority report of the Hon. Vicente de Vera, member of the Commission on Elections, says among other things, that "we know that as result of this chaotic condition, many residents of the four provinces have voluntarily banished themselves from their home towns in order not to be subjected to the prevailing oppression and to avoid being victimized or losing their lives;" and that after the election dead bodies had been found with notes attached to their necks, reading: "Bumoto kami kay Roxas" (We voted for Roxas); WHEREAS, the same Judge De Vera says in his minority report that in the four provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, the worst terrorism reigned during and after the election, and that if the elections held in the aforesaid provinces were annulled as demanded by circumstances mentioned in the report of the Commission, Jose O. Vera, Ramon Diokno, and Jose Romero, would not and could not have been declared elected;

WHEREAS, in his report to the Provost Marshal, col. Amando Dumlao, Assistant Chief of Staff, G2, attached to the report of the Commission on Elections, states among other things, that "all the members of the Church of Christ(Iglesia ni Cristo) were intimidated and coerced, some kidnapped and murdered" by the HUKBALAHAPS "because they had expressed their opinion that they were going to vote for President-elect Manuel A. Roxas"; that because of terrorism and coercion "a great many barrio people have evacuated their respective places and signified their attention not to vote"; and that ballot boxes were taken away from barrios San Miguel, Pasong Isip, Pakap, Guimba and Galvan, and that in some instances election inspectors were kidnapped; WHEREAS, the terrorism resorted to by the lawless elements in the four provinces mentioned above in order to insure the election of the candidates of the Conservative Wing of the Nacionalista Party is of public knowledge and that such terrorism continues to this day; that before the elections Jose O. Vera himself declared as campaign manager of the Osmeña faction that he was sorry if Presidential Candidate Manuel A. Roxas could not campaign in Huk provinces because his life would be in endangered; and that because of the constant murders of his candidates and leaders, Presidential Candidate Roxas found it necessary to appeal to American High Commissioner Paul V. Mcnutt for protection, which appeal American High Commissioner personally referred to President Sergio Osmeña for appropriate action, and the President in turn ordered the Secretary of the Interior to afford the necessary protection, thus impliedly admitting the existence and reign of such terrorism; WHEREAS, the Philippines, a Republic state, embracing the principles of democracy, must condemn all acts that seek to defeat the popular will;

WHEREAS, it is essential in order to maintain alive the respect for democratic institutions among our people, that no man or group of men be permitted to profit from the results of election held under coercion, in violation of law, and contrary to the principle of freedom of choice which should underlie all elections under the Constitution; WHEREAS, protest against the election of Jose O. Vera, Ramon Diokno and Jose Romero, have been filed with the Electoral Tribunal of the Senate of the Philippines on the basis of the findings of the Commission on Elections above quoted; NOW THEREFORE, be it resolved by the Senate of the Philippines in session assembled, as it hereby resolves, to defer the administration of oath and the sitting of Jose O. Vera, Ramon Diokno and Jose Romero, pending the hearing and decision of reports lodged against their elections, wherein the terrorism averred in the report of the Commission on Elections and in the report of the Provost Marshal constitute the ground of said protests and will therefore be the subject of investigation and determination. Parece que cuando se puso a debate la resolucion arriba transcrita, el Senado acordo unanimemente transferir la discusion para la sesion del lunes siguiente, 27 de mayo. Ya se estaba discutiendo otro asunto cuando surgio unacalorado incidente en virtud del cual los Senadores de la minoria salierontodos del salon de sesiones, quedandose alli solamente el Presidente Avelinocon sus once (11) compañeros de la mayoria. Se alega en esta ocasion, ausenteslos Senadores minoritarios y sin el necesario quorum legal para poder seguir despachando asuntos, los Senadores de la mayoria, revocando el acuerdo anterior de transferencia, decidieron considerar y aprobar la resolucion sinmas debate. Tales son, a grandes rasgos, los hechos que han dado lugar a la demanda quedirecta y originariamente plantean ante este Tribunal Supremo los recurrentes Jose O. Vera,

Ramon diokno y Jose Romero, y cuya parte petitoria es como sigue: POR LO TANTO, los recurrentes respetuosamente piden a este Honorable Tribunal y a cualquier Magistrado del mismo, tenga a bien expedir un interdicto prohibitorio preliminar dirigido a los recurridos, sus funcionarios, empleados, agentes y demas personas que obran en su ayuda, ordenandoles que hasta nueva orden del Tribunal, desistan y se abstengan de poner en ejecucion la resolucion arriba mencionada, y impedir a los recurrentes continuen en sus asientos en el Senado y ejerzan libremente sus funciones y derechos como senadores de Filipinas, deshaciendo todo lo hecho en contrario hasta esta fecha; que acorte los terminos de contestacion; que una vez contestada esta demanda, designe un Comisionado para recibir las pruebas, con instrucciones de que la haga sin dilaciones, y que, previa la vista correspondiente, dicte sentencia declarando enteramente nula y de ningun valor la citada resolucion, y prohibiendo consecuentemente a los recurridos y a cada uno de ellos a impedir a los recurrentes a continuar en sus cargos como senadores, y prohibiendoles igualmente a realizar cualquier otro procediemiento ulterior para ejecutar la resolucion citada, con las costas. Los recurrentes piden tambien cualquier otro remedio justo y equitativo. El magistrado Perfecto concedio el interdicto preliminar pedido principalmenteen virtud de la alegacion expuesta en el parrafo 10 de la demanda, en el sentido de que la resolucion cuestionada tenia por objecto, entre otras cosas, "la realizacion de fines siniestros, tales como la aprobacion, sin la fiscalizacion e intervencion de los recurrentes, del Bill Bell, de una medidade reorganizacion judicial terrorista para el personal de la judicatura y deotras semejantes, y para doblegar a los recurrentes, por tal hitlerico procedimiento a los manejos de tal mayoria." Sometido el interdicto preliminar a la corte en pleno, esta lo aprobo en una votacion de seis (6) contra cuatro (4), y al propio tiempo lo señalo a vista para la determinacion de la cuestion de si su expedicion estaba o no justificada. En dicha vista que duro 6 horas seguidas, desde la mañana

hasta la tarde (una de las mas largas si no la mas larga que se haya celebrado jamas en los anales de esta Corte), arguyeron extensamente tanto la representacion de los recurrentes como la de los recurridos. El Procurador General Tañada comparecio y arguyo en nombre de estos ultimos, pero limitandose en su informe a cuestionar e impugnar la jurisdiccion de este Supremo Tribunal para conocer y enjuiciar el asunto bajo el principio de la separacion de poderes que informa nuestra Constitucion. Puede decirse sin exageracion que el tema se agoto discutiendose con minuciosidad los puntos constitucionales y juridicos planteados en el asunto. Despues de la vista esta Corte en pleno, con la solañausencia del Magistrado Jaranilla, y con la disidencia del Magistrado Perfecto, acordo disolver el interdicto prohibitorio preliminar mediante lasiguente orden: Considering that the preliminary injunction was issued in the case of Jose O. Vera et al., petitioners, vs. Jose Avelino, respondents, ( G. R. No. L-543), to preserve the status quo and thus prevent the execution of the acts alleged under oath in the last part of paragraph X of the petition, without the intervention of the petitioners; and taking into consideration that this court, after hearing both parties, at any rate believes and trusts that the respondents will not carry out said acts during the pendency of this proceeding, this court, without deciding whether or not the said injunction was justified, hereby resolves to dissolve it in the meantime, without prejudice to whatever action or decision this court may take or render on the questions involved in this case including that of jurisdiction. Resulta evidente de autos que las cuestiones que tenemos que considerar yresolver son las siguientes: (1) a la luz de nuestra Constitucion y de nuestras ¿es legal y sostenible la resolucion objecto de controversia, en cuanto por ella se priva a los recurrentes de sus asientos en el Senado de Filipinas, y de los derechos, privilegios y prerrogativas anejos a dichos asientos?; (2) a la luz de nuestra constitucion y de nuestrs leyes ¿tiene este Tribunal Supremo jurisdiccion y competencia para conocer, enjuiciar y decidir el asunto?

Primera cuestion.—A la luz de nuestre Constitucion y de nuestre leyes ¿eslegal sostenible la resolucion objecto de controversia, en cuanto por ella sepriva a los recurrentes de sus asientos en el Senado de Filipinas, y de losderechos, privilegios y prerrogativas anejos a dichos asientos? Antes de la aprobacion de la primera Constitucion del Commonwealth de Filipinas (1935), la Legistura era el juez de las elecciones, actas y condiciones de sus propios miembros. La disposicion original relativa a esta materia era la contenida en la Ley Congreso de los Estados Unidos de 1.º de julio de 1902 (Ley Organica, articulo 7, parrafo 5), la cual preceptuaba que "La Asamblea (Filipina) decidira de las elecciones, su resultado y las calificaciones de los representantes. . . ." Cuando se aprobo la Ley del Congreso de 1916 (Ley Jones, de amplia automania, seccion 18, parrafo 1), la citada disposicion se reincorporo, con una modificacion que la hacia mas enfatica insertandose la palabra "unicos," a saber: "Que el Senado y la Camara de Representantes, respectivamente, seran los unicos jueces de las elecciones, del resultado, escrutinio y condiciones de sus miembros electivos. . . ." Esta disposicion no era de ningun modo original: no hacia mas que transplantar a este pais la tradicion y el sistema americano provisto en la clausula 1.ª de la seccion 5 del Articulo I de la constitucion de los Estados Unidos, que dispone que "cada Camara sera juez de las Elecciones, Actas y Condicciones de sus propios miembros. . ." La Asamblea Constituyente convocada en 1934 para redactar la Constitucionde nuestro Commonwealth pudo haber seguido sobre esta materia diferents cursos de accion: reafirmar la tradicion americana vigente en este pais desde1902; o seguir el ejemplo de algunos paises — verbigracia, Canada, Australia,Hungria y Polonia — que habian transladado esta facultad de las Camaras Legislativas al departamento judicial, hablando mas concretamente, al TribunalSupremo; o bien instituir un sistema mixto, creando un cuerpo constitucional separado e independiente, con jurisdiccion exclusiva sobre la materia. La Asemblea Constituyente opto por este ultimo creando "una Comision Electoralque se compondra de tres Magistrados del Tribunal Supremo que seran designadospor su Presidente, y de seis diputados escogidos por la Asamblea Nacional, tres de los cuales el

mayor numero de votos, y tres por el partido que lesiga en el mayor numero de votos. Esta Commision Electoral sera presidida porel Magistrado mas antiguo y conocera exclusivamente de todas las controversiasrelativas al resultado de la eleccion y a las calificaciones de los miembrosde la Asamblea Nacional" (Articulo IV, Constitucion de Filipinas, 1935). Cuando la Constitucion se reformo en 1940 restaurandose le legislatura bicameral, la filosofia de la comision electoral se respecto y conservo en la Constitucion reformada y en lugar de una comision se crearon dos, una para cada camara, y ya no se llamaba Comision electoral sino Tribunal Electoral, como para recalcar y subrayar el caracter judicial del nuevo organismo. El precepto constitucional pertinente es como sigue: Sec. 11. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns,and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine members, three of whom shall be Justice of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The senior Justice in each Electral Tribunal shall be its Chairman. De lo expuesto resulta evidente que una importante fa cultad judicial que tenian las camaras legislativas anteriormente — la facultad de actuar como jueces sobre las elecciones, actas y calificaciones de sus miembros — ha quedado eliminada completamente bajo la actual Constitucion y traspasada tambien completa y plenamente al nuevo organismo constitucional — el Tribunal Electoral. La pregunta ahora en orden es si la resolucion cuestionada que para mayor claridad llamaremos Resolucion Pendatun representa o constituye,por parte de los Senadores recurridos, el ejercicio de una facultad constitucional que no les pertenece sino al Tribunal Electoral, y nuestra contestacion es decididamente afirmativa. Con esa resolucion en la mano es como si los

recurridos hubieran dicho a los recurrentes lo siguiete:"Señores, aqui tenemos un informe de la Comision sobre Elecciones en donde se dice que en cuatro provincias del centro de Luzon no ha habido sufragio libre, sincero y or denado, por los actos de intimadacion y violencia de vuestros partidarios. Sin los votos de esas provincias, vosotros no hubierais triunfado. Por tanto, hasta que se decida en vuestro favor las protestas formuladas contra vuestras actas ante el Tribunal Electoral, os negamos el derecho de jurar, de sentarse en estos escaños, de participar en las deliberaciones del Senado y de gozar de los derechos, prerrogativas y privilegios anejos al cargo de Senador." ¿Que es esto sino una innegabale susurpacion de la facultad exclusiva que tiene el Tribunal Electoral de ser el unico juez de las controversias relativas a la eleccion, actas y calificaciones de los miembros de la camara a qu corresponde dicho tribunal? Se arguye que independientemente de la cuestion electoral cada camara, para proteger su existencia, su buen nombre y su decoro, tiene el poder inherente de suspender a cualquier miembro suyo; que la Resolucion Pendatun se inspiro en estos motivos; que la suspension de los recurrentes es un acto politico que nada tiene que ever con la determinacion de sus actas por el Tribunal Electoral y no se halla sujeto a revision de parte del departamento judicial por cuestionable que fuera el mismo desde el punto de vista del derecho o de la moral publica; y que, por tanto, no hay tal usurpacion de poderes constitucionales, no habiendose los recurridos entrometido en la esfera de accion del Tribunal Electoral. Sin embargo, no hay mas que leer la resolucion en cuestion para convencerse de que su entera motivacion se deriva de las elecciones de 23 de April, dandose en ella por establecido, en virtud del informe de la Comision sobre Elecciones, que el triunfo de los recurrentes se debio a un estado de terror y violencia en las Provincias de Pampanga, Tarlac, Nueva Ecija y Bulacan. Los "por cuantos" de la resolucion hacen referencia a las supuestas anomalias e irregularidades que viciaron el sufragio en dichas provincias; hacen ciertas afirmaciones de caracter general como la de que Filipinas, a fuer de nacion y estado democratico, debe condenar todo acto tendente a derrotar la voluntad popular, y la de que "para mantener vivo entre nosotros el respeto a las instituciones democraticas, a ningun hombre o grupo de hombres se debe permitir que reporten beneficio de los resultados de

una eleccion llev ada a cabo bajo coercion"; y al final se dice "por cuanto, sobre la base de los informes arriba citados de la Comision sobre Elecciones se han formulado protestas ante el Tribunal Electoral de Senado contra la eleccion de Jose O. Vera, Ramon Diokno y Jose E. Romero"; y luego la parte dispositiva en virtud de la cual se priva a los recurrentes del juramento y de sus asientos en el Senado entre tanto no se resuelvan las protestas formuladas contra sus actos, interregno que puede durar meses y hasta años. De todo esto resulta bien claro que los considerandos de la resolucion versan precisamente sobre los mismos hechos electorales cuya determinacion incumbe exclusivamente al Tribunal Electoral, y que la interdiccion, o mejor dicho, la suspension de los derechos, prerrogativas y privilegios de los recurrentes se basa indudablemente en tales considerandos. No hay en la resolucion ni la mas minima insinuacion de que se haya aprobado por altos motivos de dignidad y decoro senatorial — eso que algun tratadista lllama graficamente medida de profilaxis — como para evitar el roce deshonroso con miembros que fuerean algo aso com de la casta despreciable de lost intocables, aquejados de lepra moral en sus personas. No hay ni el menor cargo de torpeza moral contra los recurrentes, ni siquiera se insinua que estos fuereon directa o indirectamente responsables del alegado estado de terror y violencia. La conclusion indeclinable, pues, es que la Resolucion Pendatun enjuicia y resuelve cuestiones o "issues" puramente electorales, aceptando prima facie un informe incompetente sobre terrorismo, violencias y fraudes, y como tal constituye una intromision en la facultad que bajo la Constitucion tiene el Tribunal Electoral del Senado de ser el unico juez de las controversias relativas a la eleccion, actas y calificaciones de los miembros de dicho alto cuerpo colegislador. Pero admitamos por un momento que la Resolucion Pendatun tiene ese caracter profilactico que le atribuyen a ultima hora; que, contra lo que es evidente y claro con claridad meridiana, esa resolucion nada tiene que ver con la determinacion judicial de las actas de los recurrentes por el Tribunal electoral. La pregunta otra vez en orden s la siguiente: sometida la Resolucion Pendatum a la piedra de toque de nuestra Constitucion ¿puede resistir con exito la prueba? Nuestra contestacion es terminantemente negativa. La Constitucion filipina es el producto de la sabiduria, experiencia y genio politico de nuestro pueblo. No es un documento enteramente original: en ciencia politica las concepciones originales no abundan. Hemos

volcado en ella no solo el resultado de nuestra experiencia necessariamentelimitada, sino lo que hemos aprendido de la sabiduria y experiencia de otros pueblos mas avanzados que nosotros, particularmente del pueblo Americano, con el cual nos ha ligado una convivencia de cerca de medio sigolo. Despues de largas y laboriosas deliberaciones nuestra Asamablea Constituyente, elegida por el pueblo (1934-1935), adopto el sistema presidencial de gobierno dividido en tres altospoderes, independendientes entre si pero coordinandos en un mecanismo cuidadosamente elaborado de frenos y contrapesos. Esos poderes son: legislativo, ejecutivo y judicial.Sus altas facultades y funciones se hallan especificadas en la Constitucion, en capitulos separados. En el uso del lenguaje se ha evitado la municiosidad, el pormenorismo caractereistico de las leyesordinarias, a fin de hacer del instrumento suficientemente amplio y flexible para acomodarse y para subvenir a las necesidades y condiciones cambiantes de los tiempos; pero, con todo, los trazos, los lineamientos son suficientemente claros, firmes y seguros, y creemos puededecirse sin inmodestia que en concision, en claridad y en buen ordenamiento nuestra Constitucion no cede a ninguna de las constituciones escritas que se conocen. Examinemos ahora el departamento o poder legislative que es lo que nos concierne e interesa en el presente asunto. Es un principio constitucional bien establecido que el poder de legislar es ilimitado en tanto en cuanto no pugna con la Constitucion, la cual opera como una limitacion. Todos los demas poderes y facultades que no tengan caracter legislativo deben ser conferidos expresa o implicitamente. Nuestro Congreso, actuando concurrentemente por medio de sus dos camaras, tiene el poder de legislar. "El poder legislativo queda investido en un Congreso de Filipinas, compuesto de un Senado y de una Camara de Representates (Articulo VI, seccion 1, Constitucion de Filipinas, 1940). Pero ademas de este poder de conjunto, cada camara tiene ciertas facultades, entre ellas algunas de caracter disciplinario, a saber: (a) la de compeler la asistencia de miembros ausentes en la forma y bajo las penas que dicha camara prescriba; (b) la de castigar a sus miembros por conducta desordenada, y, con la concurrencia de dos terceras partes de sus miembros, expulsar a un miembro por tal motivo (Articulo VI, seccion 10, ap. 2 y 3). Fuera de estas facultades no hay en nuestra Constitucion ninguna otra que autorice la imposicion de un castigo o pena, o envuelva una privacion

de derechos, prerrogativas y privilegios, siguiera sea temporal, tal como la que se provee en la Resolucion Pendatun. ¿Encaja esta resolucion en cualquiera de las facultades arriba enumeradas? Evidentemente que no. No encaja en el inciso (a)—la facultad de compeler disciplinariamente la asistencia de miembros ausentes — porque es superfluo decir que no se trata ni remotamente de tal caso. Tampoco encaja en el inciso "b" porque se ha admitido desde el comienzo que el caso que nos ocupa no es el de conducta desordenada de un miembro. Tampoco encaja en la facultad de determinar y resolver la legalidad y solvencia de las actas y credenciales de los recurrentes porque ya hemos demostrado hasta la saciedad que habiendose retirado totalmente de las camaras la substancia, laesencia de esa facultad trasladandola al Tribunal Electoral, quedo tambien ipso facto retirada y eliminada la facultad de suspender que es nada mas que un incidente un aledaño de la substancia. Pero se dice: el Tribunal Electoral no tiene la facultad de suspender, esto se halla admitido por todo el mundo; luego esa facultad ha quedado, por lo menos, en las camaras como residuo no afectado por el traspaso de jurisdiccionsobre las credenciales y actas electorales. Sin embargo,esto no es mass que una habil sustileza. En la Constitucion no hay mas que dos categorias de poderes: el expreso o el implicito (either by express grant or byfair implication from what is granted). Como quiera que esa reserva, ese residuo (la facultad de suspender) no esta conferido expresamente en la Constitucion, luego hay que suponerlo implicito. Pero ¿implicito de que? Tiene que ser de algo de un poder mas general y mas amplio expresamente conferido (parte de un todo) que en este caseo tendria que ser el poder de conocer y resolver las controversias electorales sobre las actas de los miembros del Congreso. Es asi que este poder ya no lo tienen las camaras bajo la Constitucion; luego tampoco queda nada implicito en elias, so pena de sostener que lo implicito, que es nada mas que un incidente, puede subsistir por si solo sin la substancia — el vaso esencial que lo envuelve y entraña. El corolario forzoso de todo esto es que los redactores de la Constitucion filipina eliminaron por completo la facultad de suspender no solo del Congreso sino del Tribunal Electroral; que la voluntad soberana del pueblo expresada en el codigo fundamental, es que ningun protestado seria privado de sus asiento ni por un solo minuto; que ninguna presuncion se estableceria en contra de la legitimidad y solvencia de su

acta; que solamente una sentencia final podira cerrarle las puertas del Congreso. No tenemos porque averiguar si con esta decision la Asamblea Constituyente quiso erigir un firme valladar a los excesos y demasias de la pasion politica creando un clima propicio para el desarrollo de las minorias en un pais en que, como el nuestro, ciertas causas y circunstancias han retardado el turno periodico y saludable de los partidos; todo lo que nos incumbe hacer es señalar y destacar el hecho inexorable, la volicion constitucional. Se han citado dos casos de nuestra jurisprudencia parlamentaria para justificar la Resolucion Pendatun: el caso de Jose Fuentebella en el Senado de Filipinas, en 1916, y el caso de Nicolas Rafols en la Camara de Representantes, en 1925. Bajo la alegacion de haberse cometido graves irregularidades y fraudes en las primeras elecciones senatoriales celebradas en el 6. o distrito (provincias bicolanas)al candidato electo Jose Fuentebella se le nego prima facie el juramento y el asiento pendiente la resolucion de la protesta formulada contra su acta. Lo mismo se hizo en el caso de Nicolas Rafols, por alegados fraudes electorales cometidos en el 6.º distrito diputacional de Cebu. Pero la endeblez e inaplicabilidad de estos precedentes salta inmediatamente a la vista si se tiene en cuenta que cuando se establecieron las camaras legislativas eran constitucionalmente los unicos jueces de la eleccion, actas y calificaciones de sus miembros; asi que la suspension prima facie del juramento y del asiento no fue mas que un incidente en el ejercicio de esa facultad; y, prescindiendo de si esto era justo o injusto, prudente o arbitrario, parecia incuestionable que estaba dentro los poderes y facultades de las camaras el hacerlo. Pero, en realidad, los casos de Fuentebella y Rafols pueden citarse para un efecto completamente opuesto al perseguido por los abogados dee los recurridos cuando se analizan y discuten amplia y objetivamente los motivos, circunstancias y designios que indujeron a nuestra Asamblea Constituyente a abandonar la bien arraigada tradicion americana de hacer de las camaras legislativas los unicos jueces de la eleccion, actas y calificaciones de sus miembros, trasladanddo la jurisdiccion a un organismo constitucional completamente separado e independiente. Un analisis de este genero viene a ser altamente revelador y expresivo. Lo primero que embarga la atencion del observador es que cuando se adopto esta reforma fundamental y original por la Asamblea

Constituyente dominaba en Filipinas un partido politico fuerte, denso, acaudillado por una personalidad genial, brillante, dinamica y poderosa. Ese partido acababa de ganar en unas elecciones apasionadisimas y muy reidas una victoria espectacular, abrumadora, que le daba el dominio y control de todos los resortes de la vida politica no solo en la nacion sino hasta en las provincias y municipios.Ese partido dominaba naturalmente tambien la Convencion Constitucional, la Asamblea Constituyente. ¿Que hizo ese partido en medio de su omnipotencia? ¿Le emborracho ese peligroso licor de los dioses — el licor de la victoria, el licor del poder? No. Ese partido, sus caudillos, resolvieron ser generosos, ser justos, ser prudentes, ser democraticos, y lo fueron; determinaron pensar en terminos de humanidad, en terminos de nacion, en terminos de justica pero justicia de verad, en terminos de libertad y democracia, y lo hicieron tal como lo pensaron. Podian haber escrito una constitucion a su talante — una constitucion que sirviese sus propios fines, que asegurase su perpetuidad en el poder. No lo hicieron. Y no solamente no lo hicieron, sino que hicieronalgo mas; algo extraordinario, inconcebible, juzgado a la luz y segun la norma usual del egoismo de los partidos. Teniendo en sus manos un poder enorme, formidable, sumamente tentador, el poder de resolver las controversias electorales sobre las actas de los miembros de la Legislatura, renunciaron a ese poder para alojarlo en un cuerpo constitucional separado e independiente, el cual es practicamente un tribunal de justicia: la Comision Electoral, hoy Tribunal Electoral. La determinacion de hacer este cuerpo lo mas apolitico posible se denota en el hecho de que sus miembros legislativos estan distribuidos en igual numero, 3-3, de suerte que los 3 Magistrados componen el factor decisivo. ¿Por que los redactores de la Constitucion, y, sobre todo, por que el partido politico mayoritario pudo hacer estarenuncia de la que pocos ejemplos hay en la historia politica del mundo? No parece dificil imaginarse los motivos, las causas, sobre todo para uno que como el autor de esta opinion tuvo algo que ver, siguera muy modestamente, con las tareas de la Asamblea Constituyente. El pueblo filipino estab empeñado en una suprema, altisima tarea — la de estructurar el Estado, la de escribir el codigo fundamental de la nacion no solo para los 10 años del Commonwealth sino para la Republica que se proclamaria despues de dicho periodo de tiempo. Todo el mundo sabia que la suerte de la

democracia en filipinas dependia principalmente de la Constitucion que se escribiera, no solo en su letra sino en su espiritu, y, sobre todo, de la forma y manera como ella moldearia, penetraria e influiria en la vida cotidiana del pueblo y del individuo. Desde luego no eramos unos ilusos, utopistas, perfeccionistas; no aspirabamos ni mucho menos a crear un trasunto de la republica ideal de Platon; pero deseabamos hacer lo mejor posible dadas nuestras circunstancias y limitaciones, dada nuestra historia y tradiciones, y dado el temperamento y genio politico y social de nuestro pueblo. Se habia acuñado y popularizado por aquel tiempo la frase "justicia politica" para denotar la clase de justicia convencional que cabia esperar en relacion con las protestas electorales planteadas ante las camaras legislativas. No solo se aceleraba o demoraba el despacho de las mismas a ritmo con los dictados de ciertas conveniencias de taifa o grupo, sino que no pocas veces el complejo politico o personal era el factor determinante en las resoluciones y decisiones que se tomaban. Todo esto lo sabian los delegados a la asamblea constituyente, lo sabian los liders de los partidos, lo sabian los escritores y pensadores dedicados al estudio de las ciencias politicas y sociales. En la Convencion habi delegados que eran miembros actuales y pasados de la Legislatura, hombres que sabian por propia experiencia como se resolvian las protestas electorales en las camaras legislativas y que, ademas, sabian por sus lecturas lo que sobre el particular ocurria en otros paises. Alli estaba, como delegado, Nicolas Rafols — actor del drama politico que determino uno de los procedentes parlamentarios que se citan — acaso rumiando todavia en su fuero interno el agravio contra lo que reputara arbitrariedad cometida por la mayoria en su caso. ¿Que de extraño habia que en medio de tal "background", en medio de tal ambiente ideologico se formara una fuerte opinionen favor de un cambio de sistema, en favor de unarbitrio constitucional que sustituyera la llamada "justicia politica" con una justicia de verdad, una "justicia judicial?"Asi se creo la Comision Electoral. Nada mejor que las siguientes palabras del malogrado Magistrado Abad Santos en su luminosa opinion concurrente en el celebrado asunto de Angara contra Comision Electoral, para definir el caracter del sistema: "El objeto que se trataba de obtener con la creacion del a Comision Electoral no era crear un cuerpo que estuviera por encima de la ley, sino el elevar las elecciones legislativas de la categoria de cuestiones

politicas a la de justiciables." (Angara contra Comision Electoral, 63 Jur. Fil., 151, 200.) Y el ponente en dicho asunto el Magistrado Laurel se explaya mas todavia con los siguientes pronunciamientos que no tienen desperdicio: Los miembros de la Convencion Constitucional que planearon nuestra ley fundamental eran, en su mayor parte, hombres de edad madura y de experiencia. A buen seguro muchos de ellos estaban familiarizados con la historia y desarrollo politico de otros paises del mundo. Por tanto, cuando creyeron conveniente crear una Comision Electoral como un organismo constitucional y lo invistieron con la exclusiva funcion de conocer y fallar las controversias electorales, actas y condiciones de los miembros de la Asamblea Nacional,debieronde haberlo hecho asi, no solamente a la luz de su propia experiencia, sino tambien teniendo en cuente la experiencia de otros pueblos ilustrados del mundo. La creacion de la Comision Electoral fue planeada para remediar ciertos males que conocian los autores de nuestra Constitucion. No obstante la tenaz oposicion de algunos miembros de la Convencion a su creacion, el proyecto como antes se ha dicho, fue aprobado por ese cuerpo mediante una votacion de 98 contra 58. Todo cuanto se puede decir ahora sobre la aprobacion de la Constitucion, la creacion de la Comision Electoral es la expresion de la sabiduria y "la justicia esencial al pueblo". (Abraham Lincoln, First Inaugural Address, marzo 4, 1861.) De las deliberaciones de nuestra Convencion Constitucional resulta evidente que el objeto era traspasar en su totalidad toda la facultad previamente ejercitada por la Legislatura en asuntos pertenecientes a protestas electorales de sus miembros, a un tribunal independiente e imparcial. Sin embargo, no fue tanto el conocimientoy apreciacion de precedentes constitucionales contemporaneos comola ha tiempo sentida necesidad de fallar protestas legislativas, libres de prejuicios partidistas lo que impulso al pueblo, obrando por medio de sus

delegados a la Convencion, a establecer este Cuerpo que se conoce por Comision Electoral. Con estas miras, se creo un cuerpo en el que tanto el partido de la mayoria como el de la minoria estanigualmente representados para contrarrestar la influencia partidista en sus deliberaciones, y dotado, ademas, de caracter judicial mediantela inclusion entre sus miembros de tres magistrados del Tribunal Supremo. La Comision Electoral es una creacion constitucional, investida de las facultades necesarias para el cumplimiento y ejecucion de las funciones limitadas y especificas que la ha asignado la Comision. Aunque no es un Poder en nuestro Gobierno tripartito, es, para todos los fines, cuando obra dentro de los limites de su autoridad, un organismo independiente. Se aproxima mas, ciertamente, al Departamento Legislativo que a cualquiera otro. El lugar que ocupa la disposicion legal (articulo 4) que crea la Comision Electoral en el Titulo VI, titulado "Departamento Legislativo" de nuestra Constitucion,es muy significativo. Su composicion es tambien significativa por cuanto etsa constituida por una mayoria de miembros de la Legislatura. Pero es un cuerpo separado e independiente de la Legislatura. La concesion de facultades a la Comision Electoral para conocer de todas las controversias relativas a las elecciones, actas y condiciones de los miembros de la Asamblea Nacional, tiene por objeto hacer que esas facultades sean tan completas y queden tan incolumes como si hubieran continuado originalmente en la Legislatura. El haber expresamente investido de esas facultades a la Comision Electoral, es una negativa tacita del ejercicio de esas facultades por la Asamblea Nacional. Y esto es una restriccion tan eficaz a las facultades legislativas como una prohibicion expresa contenida en la Constitucion (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman,36 S.D., 260; L.R.A., 1917B, 1). . . ." (Angara contra Comision Electoral, 63 Jur. Fil., 151-, 188-190.)

Acaso se pueda decir algo mas todavia acerca de los motivos que indujeron la creacion de la Comision Electoral; acaso se pueda aventurar la afirmacion de que con este cuerpo los redactores de la Constitucion, los caudillos de los partidos se propusieron asegurar por todos los medios y garantias la vida y crecimiento de la democracia en Filipinas. Democracia es esencialmente libre discusion de los asuntos publicos, de los problemas de la comunidad; libreexpresion del pensamiento y de la opinion. De esto se sigue necesariamente un regimen basado en la existencia de una mayoria que gobierna y de una minoria que aspira a gobernar entretanto que vigila los actos del gobierno en su doble papel de censor y de aspirante al poder. La mejor piedra de toque para apreciar y juzgar la calidad de un regimen politico es la manera y forma como trata a las minorias y oposiciones. Un gobierno totalitario, despotico, las liquida, las ahoga; un gobierno democratico no solo las respeta, sino que crea para ellas un clima vital propicio. Mirado en esta sentido el Tribunal electoral es un instrumento de minorias por antonomasia: la idea basica de su creacion es el desposeer a las mayhorias del poder de destruir, de aniquilar a las minorias mediante lo que cinicamente se ha denominado "justicia politica," e impartir a las minorias las maximas garantias de una justicia de verdad — una "justicia judicial" de la mayoria en el Senado, pronunciando su discurso a favor de la reforma en la Asamblea Constituyente, dijo entre otros conceptos las siguientes significativas palabras: "Many have criticized, many have complained against the tyranny of the majority in electoral cases. . . ." (Aruego, The Framing of the Philippine Constitution,Tomo I, pag. 263). Por eso es un absurdo sostener que la facultad de suspender utilizada mediante la Resolucion Pendatun haya quedado en el Congreso como residuo, independientemente de la jurisdiccion exclusiva del Tribunal Electoral para resolver protestas electorales legislativas. Ello equivaldria a sostener que los redactores de la Constitucion pusieron un remedio paraderrotarlo al propio tiempo mediante una puerta reservada y trasera por la que podria escurrirse el pequeño monstruo de la "justicia politica". Este juego infantil no podian haberlo hecho los redactores de la Constitucion, los liders de los partidos que tuvieron alguna responsabilidad en la redaccion de dicho documento. ¿Que mas? Esa facultada para suspender equivale practicamentea una carta blanca para intervenir y estorbar las actuaciones y procedimientos del Tribunal Electoral, provocando suspicacias, creando anticipadamente prejuicios no solo en la mente del publico sino de los

miembros mismos, empequeñeciendo, en una palabra, el prestigio del tribunal. ¿Como se puede pensar que la Asamblea Constituyente permitiera y posibitara ese resultado antijudicial, reservandoalgo al Congreso en un traspaso de facultades que se consideraba total, absoluto e incondicional? Los tribunalesordinarios de justicia estan por ley protegidos contra todo estorbo y obstruccion a sus funciones. El Tribunal Electoral — criatura de la misma Constitucion — tiene, por lo menos, iguales si no mejores titulos a esa impermeabilidad, mejor todavia, a esa inmunidad contra toda obstruccion y entorpecimiento. El hecho de que la intromision venga del Congreso o de una de sus camaras no puede ser una justificacion. Las deliberaciones de la Asamblea Constituyente arrojan buena luz sobre el espiritu del precepto que nos ocupa. Queel traspaso de facultades fue total, absoluto; que al Congreso no se reservo ninguna facultad, mucho menos la de suspender, en toda cuestion relativa a la eleccion de sus miembros, lo denotan bien claro ciertas observaciones, que a estas alturas resultan profeticas, del Delegado ManuelRoxas, uno de los liders mas autorizados de la Asamblea Constituyente, hoy primer Magistrado de la nacion. El Sr. Roxas estaba contestando varias interpelaciones sobre el alcance del nuevo sistema propuesto. Replicando al Delegado Ventura no parece sino que el Sr. Roxas presintiera la Resolucion Pendatun o actos semejantes a ella cuando dijo lo siguiente: ". . . Ademas, si la Asamblea desea anular el poder de la Comision (Electoral), puede hacerlo asi mediante ciertasmaniobras en su primera sesion cuando se someten las actas a la Asamblea. El objeto es dar a la Comision Electoral todo el poder ejercitado por la Asamblea referente a las elecciones, actas y condiciones de sus miembros" (vease Angara contra Comision Electoral, supra, pag. 179). Ese todo de que habla el Sr. Roxas excluye la idea de cualquier reserva o residuo dejado a las camaras del Congreso. Se dice, sin embargo, en la opinion de la mayoria que los debates en la Asamblea Constituyente sobre el precepto constitucional de que se trata demuestran que la intencion de los redactores de la Constitucion no fue el entregar todo a la Comision Electoral (ahora Tribunal Electoral), sino que se le confirio solamente la facultad de ser "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly."Es decir — se arguye — que cuando no hay

"contest" o contencion las camaras tienen la facultad de entender y juzgar de "la eleccion, actas y cualificaciones de sus miembros".Esto se desprende, segun la ponencia, del hecho de que mientras el "draft" o proyecto original decia lo siguiente: The elections, returns and qualifications of the members of the National Assembly and all cases contesting the election of any of its members shall be judged by an Electoral Commission. la redaccion final del proyecto quedo como sigue: xxx

xxx

xxx

The Electoral Commission shall be the sole judge of all contests relating to the election, returns, and qualifications of the members of the National Assembly. Se asevera enfaticamente en la opinion de la mayoria que la supresion de la primera parte de la clausula es harto significativa. Ello demuestra, se dice, que la clausula tenia dos partes con significados distintos: la primera parte, relativa a casos no contenciosos, y la segunda referente a casos contenciosos. La eliminacion de la primera parte venia a reducir consiguientemente la jurisdiccion de la ComisionElectoral a los casos contenciosos, reservandose los no contenciosos a las camaras. Y para probar esta tesis a primera vista deslumbrante se transcribe en la ponencia una larga tirada del diario de sesiones de la Asamblea Constituyente — tirada que, en verdad, ofrece ciertos equivocos y ambiguedades. Pero esto no es mas que un aspecto del cuadro. Estos nos obliga a revisar y examinar toda la parte del diario de sesiones que abarca los debates sobre el particular.Afortunadamente, las discusiones fueron amplias, plenas de informacion y detalle, y sobre todo llevadas muyinteligentemente. El Delegado Manuel Roxas, ahora Presidente de Filipinas, era quien sostenia el lado afirmativo, esto es, el precepto original tal como lo habia sometido el llamando Comite de Siete y tal como queda transcritoen el parrafo anterior. Un grupo de Delegados, encabezado por el Hon. Alejo Labrador, de

Zambales, estaba fundamental y decididamente opuesto a la formula. Estos Delegados no aceptaban la reforma propuesta, querian que se conservase el antiguo sistema por virtud del cual las camaras eran los jueces exclusivos de la elecccion, actas ycualificaciones de sus miembros. Acaso sea pertinente consignar el hecho de que si bien es verdad que los partidos (anti y pro) habian declarado una tregua patriotica y saludable en sus luchas dentro de la Convencion, el Sr. Roxas pertenecia al partido minoritario — el de los pros — mientras que el Sr. Labrador era de la mayoria, el partido fuerte y poderoso de los antis cuyo indiscutible lider era el entonces Presidente del Senado Sr. Quezon. La oposicion del Sr. Labrador y compa_¤_eros se fundaba principalmente en la teoria de la separacion de poderes: ellos creian que la reforma era demasiado radical, que la misma venia a mermar grandemente el poder y prestigio del departamento legislativo,reduciendolo a un estado de inferioridad y vasallaje, particularmente al poder judicial, en virtud de la intervencion de miembros de la Corte Suprema en la composicion de la Comision o Tribunal Electoral. Acaso sea pertinente decir tambien que entre los ardientes patrocinadores de la reforma figuraban distinguidos Delegados de la mayoria entre ellos el Hon. Vicente J. Francisco, de Cavite, en la actualidad Senador de Filipinas. Veamos ahora el proceso de como se enmendo el "draft"original del precepto. Las siguientes interpelaciones arrojan copiosa luz sobre la cuestion. Delegate VENTURA. We have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft reading: "The elections, returns and qualifications of the members of the National Assembly and all cases contesting the election of anyof its members shall be judged by an electoral Commission ."I should like to ask from the gentleman from Capiz whether the election and qualification of the members whose election is not contested shall also be judged by the Electoral Commission. Delegate ROXAS. If there is no question about the election of the member, there is nothing to be judged; that is why the word "judge"is used to

indicate a controversy. If there is no qustion about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined.

de proclamacion expedido por la Comision sobre Elecciones), ello era bastante, a menos que su eleccion fuese cuestionada, ycuestionada legalmente, esto es, protestada debidamente ante el Tribunal Electoral.

Delegate VENTURA. But that does carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested?

El pensamiento del Delegado Roxas se aclaro mas contestado otras interpelaciones. El dijo positiva y terminantemente, replicando al DelegadoCinco, que no habia ninguna diferencia entre la primera y segunda parte de laclausula; que, en realidad, los casos de elections, returns and qualifications," y que la frase "and contested elections" se inserto meramente para los efectos de mayor claridad.

Delegate ROXAS. There is no need of confirmation. As the gentleman knows, theaction of the House of Representatives in confirming the election of its members is just a matter of the rules of the Assembly. It is not constitutional. It is not necessary. After a man (adviertase bien esto) fileshis credentials that he has been elected, that is sufficient, unless the election is contested." (Arruego, The Framing of the Philippine Constitution,pp. 267, 268.) Como se ve, lo que preocupada al Delegado Ventura era que con la fraseologiaindicada la Comision Electoral tuviera jurisdiccion y competencia hasta sobrelas credenciales no protestadas; parece que se temia esta ambiguedad. Peroni el Delegado Ventura ni nadie en la Convencion tuvo jamas en la mente la idea de que la fraseologia envolvia una dual jurisdiccion: una, de parte de la Asamblea Nacional, sobre las credenciales no protestadas; y otra, de parte de la Comision Electoral, sobre las credenciales protestadas. Y elDelegado Roxas, con su contestaciones, establecio bien claramente que se empleaba la palabra "judge"; y el "contest," el litigio tenia que ser enjuiciado naturalmente por la Comision Electoral. De la ultima contestacion del Delegado Roxas transcrita arriba se deduceincuestionablemente que el no admitia la posibilidad de que la Asemblea Nacional rehusase su confirmacion a una credencial no protestada o contendida. El sostenia que esta confirmacion no era constitucional, no era necesaria. Poreso el dijo categoricamente: "After a man files his credential, that issufficient, unless the election is contested." Aplicado este criterio al casoque nos ocupa, equivale a lo siguiente: Despues de haberse presentado alSenado las credenciales de los recurrentes Sres. Vera, Diokno y Romero (a ello monta el certificado

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Delegate CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte (Mr. Ventura) when I arose a while ago.However, I want to ask more questions from the Delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election asseparated from the first part of the section which refers to elections, returns and qualifications. Delegate ROXAS. That is merely for the sake of clarity. In fact the cases ofcontested elections are alreadyincluded in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity. Delegate CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the election of the members? Delegate ROXAS. I do not think so unless there is a protest. (Arruego, id.,p. 269.) Pero hay todavia cosa mas importante. En realidad, esta misma custion que nos ocupa ya se planteo en aquellos debates y la solucion que entonces se le diocuadra perfectamente con el criterio que sostenemos en esta disidencia. ElDelegado Labrador, lider, como ya se ha

dicho, de los opositores a la reforma,hizo al Delegado Roxas algunas interpelaciones que parecian hechas enanticipacion a los presentes acontecimientos. He aqui el dialogo Roxas-Labrador: Delegate LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the Assembly, the Assembly on its own motion does nothave the right to contest the election and qualification of its members? Delegate ROXAS. I have no doubt that the gentleman is right. If this draft is retained, as it is, even if two-thirds of the Assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason. Delegate LABRADOR. So that the right to remove shall only be retained by the Electoral Commission. Delegate ROXAS. By the Assembly for misconduct. Delegate LABRADOR. I mean with the respect to the qualifications of the members. Delegate ROXAS. Yes, by the Electoral Commission. Delegate LABRADOR. So that under this draft, no member of the Assembly has the right to question the eligibility of its members? Delegate ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question heard before the Electoral Commission. Delegate LABRADOR. So that the Electoral Commission shall decide whether the election is not contested.

Delegate ROXAS. Yes sir; that is the purpose. (Aruego, idem, pp. 269, 270.) Este dialogo Roxas-Labrador nos da la mejor clave para interpretar el perfecto. Labrador pregunto si bajo el mismo la Asamblea tenia derecho acuestionar, de su propia iniciativa (on its motion). la eleccion y cualificacion de sus miembros; Roxas contesto que NO, que "aunque dos terceras partes de la Asamblea creyeran que un miembro no tenia las cualificaciones provistas por la ley, ellos no podrian removerle por tal razon". Labrador volvio a preguntar inquiriendo sobre quien tenia el derecho de remover. Roxas contesto: la Asamblea Nacional por mala conducta (for misconduct); y la Comision Electoral, con respeto a las cualificaciones de losmiembros de la Asamblea. Y cuando Labrador volvio a remachar preguntando si un miembro de la AsambleaNacional podria, bajo el precepto que se discutia, cuestionar la elegibilidadde sus miembros, Roxas contesto categoricamente que "antes de que un miembro pudiera cuestionar la eligibilidad (de otro) debia ir a la Comision Electoral y hacer que la cuestion se oyera ante la Comision Electoral." Es decir que,aplicado este criterio al caso nos ocupa, ni el Senador Pendatun, ni ningun otro Senador, ni nadie tenia derecho a cuestionar la elegibilidad de los recurrentes Sres. Vera, Diokno y Romero ante el Senado, sino que el asunto debia llevarse directamente al Tribunal Electoral y hacer que este lo enjuiciara. Pero se preguntara: ¿entonces por que se reformo el "draft" o proyecto original eliminando la primera clausula y dejando solo la segunda, o sea la frase "all cases contesting the elections, returns and qualifications," etc. etc? Es verdad, se hizo la enmienda, pero la misma no es sustancial,no afecta al fondo del precepto, no involucra el espiritu del sistema tal como lo definio y explico el Delegado Roxas en sus luminosas respuestas a las diversas interpelaciones, particularmente las dadas al Delegado Labrador. Se acepto la enmienda mas bien por razones puramente psicologicas, esas que conoce bien todo aquel que este familiarzado con la mecanica de los parlamentos y asambleas deliberativas.Por un lado, el Delegado Roxas veia que habia ciertas dudascon

respecto al alcance del proyecto tal como estaba fraseado;pero, por otro lado, el decia que esas dudas carecian de fundamento, que las dos clausulas del precepto tenian un mismo significado, que la segunda ya estaba contenida en la primera y se insertaba tan solo para fines de claridad.Asi que, habil estrategia parlamentario, creyo que podia aceptar perfectamente la enmienda, entre cuyos proponentes (esto es muy significativo, como se vera mas adelante) figuraba por cierto el Delegado Rafols, pues con ello no perdia nada, no comprometia ni un apice de su posicion, y en cambio ganaba mucho, atraia el apoyo de los indecisos,aseguraba la aprobacion del precepto en la votacion final, derrotando a los que estaban fundamentalmente opuestos al mismo como, en efecto, los derroto por 98 votos contra 56. Que la enmienda no era sustancial y de ningun modoafectaba al sistema, asi lo declaro categoricamente el Sr. Roxas cuando, defiriendo a una sugestion del Presidente Recto de la Convencion, definio el alcance del cambio diciendo que era "tan solo para obviar la objecion apuntadapor varios delegados en el sentido de que la primera clausula del 'draft' que dice 'The election, returns and qualifications of the members of the National Assembly' parece dar a la Comision Electoral el poder de determinar hasta la eleccion de los miembros que no han sido protestados."Es decir, que o unico que se quiso aclarar y establecer fuera de toda duda con la enmienda es que el poder de la Comision Electoral no podia extenderse a las credenciales no protestadas, pero jamas se penso que el efecto de la enmienda era el desgajar este poder de la Comision Electoral para dejarlo como un residuo en la Legislatura; en otros terminos, jamas se imagino que con la enmienda la Asamblea Nacional todavia podria ser juez de las credenciales no protestadas de sus miembros. He aqui las palabras textuales del Sr. Roxas: The difference, Mr. President, consists only in obviating the objection pointed out by various delegates to the effect that the first clause which states "The election, returns and qualifications of the members of the National Assembly" seems to give to the Electoral Commission the power to determine also the election of the members who have not been elected. And in order to obviate, we believe that the amendment is right in that sense . that is, if we amend the draft so that it should read as follows: "All cases contesting the

election, etc.," so that the judges of the Electoral Commission will limit themselves only to cases in which there has been a protest against the returns. No pudo haberse concebido jamas la peregrina, fantastica idea de que el "draft" enmendado dejaba a la Asamblea Nacional la facultad de enjuiciar la "eleccion, actas y cualificaciones de los miembros" contra los cuales no existiera ninguna protesta ante la Comision Electoral, por al sencilla razon de que ello engendraria las siguientes anomalias: (a) la creacion de dos jueces: uno, para credenciales no protestadas — la Asamblea Nacional o Congreso; y otro, para credenciales protestadas — la Comision o Tribunal Electoral; (b) en un momento dado, una mayoria sin escrupulos,viendo peligrar el poder en sus manos despues de unas elecciones reñidisimas, podria dar un golpe de mano mediante la estratagema de hacer que sus candidatos derrotados se inhiban de protestar ante el Tribunal Elctoral a fin de dar lugar a que el Congreso actue directamente sobre el caso, con la mira de ajusticiar a los candidatos minoritarios triunfantes bajo la guillotina de lo que el cinismo de los descreidos ha llamado justicia politica de las mayorias; (c) occurriria la paradoja de que las credenciales no protestadas estarian en peor situacion que las protestada, porque mientras estas ultimas tendrian el beneficio de una justicia de verdad, la justicia judicial del Tribunal Electoral, aquellas caerian bajo la justicia politica de las mayorias, sedientas de sangre adversaria. Es indudable que, como hemos dicho en otra parte de esta disidencia, la Asamblea Constituyente no podia ser parte en un juego infantil como este; y el Delgado Roxas, con su seriedad, con su bien conocida madurezpolitica, con su devocion a la causa de la libertad y democracia, de ningun modo podia ser corresponsable de un precepto constitucional que pudiera dar lugar a tan tremendas anomalias. Y ¿que decir del Delgado Rafols? ¿Como se puede concebir que, con sus tristes reminiscencias de lajusticia politica de las mayorias, diera su patrocinio a una enmienda que pudiera producir tales consecuencias? Para remachar la tesis de que cada camara de nuestro Congreso todavia retiene la facultad de determinar "la eleccion, las actas y las cualificaciones de sus miembros" en casos en que no hay protesta, la mayoria propone en su opinion el siguiente ejemplo: "Es elegido por un distrito congresil un hombre que habia servido previamente 10

años en las Prisiones de Bilibid, por estafa. Como no tuvo contrincante(¡este hombre debia de ser muy popular!), ninguna protesta se formula contra su eleccion. Y naturalmente el Tribunal Electoral no adquiere jurisdiccion sobre el caso, pues no hay 'contest' o controversia. Una vez informada del hecho ¡no puede la Camara, motu propio, suspender la toma de su juramento? ¿No puede la Camara investigarle y despues exclurle? Se observara que cuando un miembro de la Camara suscita una cuestion respecto a las cualificaciones de otro, de ello no se sigue un pleito electoral, pues ninguno pretende sustituir a este ultimo." Pareceria que estabamos excusados de replicar a este argumento por dos razones: primera, porque evidentemente el ejemplo propone un caso que es completamente distintodel que nos ocupa, pues los recurrentes no estan acusados de estafa ni de nada que afecta a su caracter, y su caso,como ya hemos dicho, es de motivacion enteramente electoral, es decir, relacionada con la forma como fueron elegidos que se dice viciada por actos de violencia y terrorismo de sus partidarios; y segunda, porque si bien es verdad que el ejemplo es meramente hipotetico, plantea, sin embargo, un caso que puede perfectamente occurrir y pareceria que ni esta Corte ni ningun miembro suyo deberia adelantar su opinion sobre semejante hipotesis susceptible de realizarse. Pero como del ejemplo se pretende hacer argumento aquiles, no tenemos mas remedio que comentarlo y discutirlo. Ante todo se deben deslindar bien los conceptos. El derecho o facultad de expulsar a un miembro de una camara legislativa (Articulo VI, seccion 10, ap. 3, Constitucion de Filipinas) es una cosa bien diferente del derecho derehusar la admision de uno para ser miembro de dicha camara. En esto ultimo las cuestiones envueltas se refieren principalmente, tal vez exclusivamente, a las cualificaciones constitucionales de aquiellos que se presentan para ser admitidos como miembros, o bien a la regularidad y legalidad de las elecciones en que fueron elegidos; mientras que en lo primero, esto es, en lo que toca a la expulsion, lo que de lugar a la accion es el caracter personal o conducta de la parte afectada (Willoughby, On the Constitution of the United States, tomo 1.º, pag. 611).

En el ejemplo que propone la mayoria, la condena por estafa no es cosa que guarda relacion con lascualificaciones constitucionales del congresista o Representante electo ni con la regularidad y legalidad de las elecciones en que salio victorioso, por cierto sin ningun contrincante. Es cosa que afecta a su caracter personal o conducta. Por tanto, no cabe discutir su derecho a ser admitido como miembro de la camara; el reune las cualificaciones constitucionales (ciudadania, edad, etc.) para ser Representante y la limpieza de su eleccion esta admitida. Asi que, parafraseando al Delegado Roxas, la "presentacion de su credencial de que ha sido eligido, es bastante para que sea admitido como miembro." Pero ¿la condena por estafa? ¿No puede la camara por este motivo investigarle y excluirle como elemento no deseable? — pregunta la mayoria. Esta es otra cuestion. Ya hemos visto que el derecho de admision es una cosa, y el derecho de expulsion, otra. El derecho de expulsion, por mala conducta, lo tienen las camaras independientemente del Tribunal Electroral. Ya lo dijo el Delegado Roxas, contestando al Delegado Labrador: la facultad de remover, en tratandose de la "eleccion, actas y cualificaciones de los miembros," la tiene la Comision o Tribunal Electoral, previa protesta; la facultad de remover, por mala conducta, la tiene la Asamblea (Congreso) Pero examinemos el ejemplo de la estafa que plantea la mayoria hast sus ultimas consecuencias. Willoughby dice que sobre este respecto el punto principal de controversia es si los actos de mala conducta objeto de queja debenser solo los subsiguientes a la eleccion y que afecten a la dignidad del Congreso y al debido desempeño de sus funciones, o deben ser tambien los anteriores. "Respecto de los actos de los miembros electos cometidos con anterioridad a su eleccion se ha argumentado fuertemente que las Camaras no deben tenerlos cuenta, pues se debe conceder que los electores tienen el derecho de elegir a quienes quieran para representarles en el Congreso, y se debe presumir que han tenido en cuenta el caracter y la conducta de aquellos a quienes elegen." A disregard of the foregoing doctrine, it has been urged, operates as a denial to the States of a right or privilege constitutionally provided for them. Thus, we find James M. Beck, former Solicitor General of the United States, declaring : "It seems too clear for argument, that each States has the right to select from its people any

representative in the Senate (or the House) that it sees fit, irrespective of his intellectual or moral qualifications (provided he possesses the qualifications specified in the Constitution), . . ." A state may have selected a member of the Senate or secured his nomination by unworthy means. He may be intelectually unfitted for the high office, and his moral character may, in other respects, leave much to be desired. The People of the United States may justifiably think that the States has sent to Congress an unfit man, who could add nothing to its deliberations, and whose influence might well be pernicious. None the less, the States has the right to send him. It is its sole concern, and to nullify its choice is to destroy the basic right of a sovereign State, and amounts to a revolution" (Willoughby, idem, pp. 611, 612). El primer precedente — añade el autor citado — de que, como base para expulsion, los actos cometidos antes de la eleccion no deben ser considerados, fue en el caso del Senador Humphrey Marshall, en 1796, quien fue acusado de que habia cometido perjurio. El Senado en este caso se nego a tomar jurisdiccion para determinar si, de hecho, Marshall habia sido reo de un delito, a pesar del hecho de que el pidio que el Senato investigase y determinase el caso" (supra, p. 612). Parece que en estos casos el criteriogeneral y predominante es que el sufragio popular es como un especie de Jordan que lava con sus aguas purificadoras todos los pecados cometidos antes de la eleccion. Es como si al pueblo se le supusiera investido de la facultad suprema de indultar totalmente a sus favoritos por medio de la balota electoral. Se insinua que los recurridos tenian la facultad de adoptar la Resolucion Pendum en virtud del principio de que todo cuerpolegislativo tiene el poder inherente de adoptar reglas para su organizacion, funcionamiento y preservacion. Se cita la practica legislativa de que al inaugurarse un cuerpo deliberativo se forma un comite de credienciales que examia los certificados o titulos que presentan los miembros para su admision. Dicho comite rinde su informe recomendando la aprobacion o desaprobacion de las credenciales. No puede sostenerse una tesis mas peligrosa que esta. Las camaras legislativas son mas, muchisimo mas que una camara de comercio, por ejemplo. Los legisladores son funcionarios

constitucionales. Sus cualificaciones, la invenstidura y el ejercicio de su cargo, el termino del mismo,estan definidos y amparados por la Constitucion mediante preceptos y disposiciones que operan como limitaciones constitucionales sobre el poder legislativo en general. Esos preceptos y disposiciones no se pueden enmendar o derogar mediante una ley ordinaria, mucho menos mediante una resolucion simple como la del Senador Pendatun: para enmendarlos o derogarlos hace falta que se reforme la Constitucion por los procesos que ella preceptua. Hacer depender la admision del legislador o la tenencia de sus cargo de una resolucion o acuerdo reglamentario es de los mas subversivo, pues le reduciria a un a situacion tan precaria y tan endeble que un mero empleado del servicio civil tendria mas prestancia y mas seguridad que el. Se nos cita, sin embargo, el caso de Barry vs. United States ex rel. Cunningham (279 U.S., 867, 874; 73 Law, ed. 597), para demostrar que la Resolucion Pendatun es valida y legal por entrar y recaer dentro del poder inherente del Senado para suspender a cualquier miembro, independientemente de la cuestion electoral. Hemos revisado cuidadosamente la sentencia citada y la hemos hallado inaplicable el presente caso. Es verdad que ella tiene cierta relacion con el caso de Vare, candidatoa Senador en Pennsylvania en las elecciones de 1926, a quien se lenegro prima facie el asiento mientras se efectuaba una investigacion dealegadas irregularidades y practicas corruptas cometidas para promover sunominacion y su eleccion, entre ellas el haber hecho promesas impropiase ilegales, etc. Pero, aparte de que la suspension del juramento y asientode Vare caia del Senado American como "unico juez de la eleccion, actas y calificaciones de sus miembros," solo muy incidental y colateralmentese habla de esto en el caso de Barry. La unica y verdadera cuestion planteadaen esta caso era la de si a un tal Cunningham se le podia arrestrar, mediante orden del Senado, y traerle a la barra para contestar a ciertas preguntassobre la procedencia de ciertos fondos gastados en la nominacion y eleccionde Vare. La Corte Suprema Federal dijo que si, que esto caia dentro de los poderes judiciales del Senado. "Generally" — dice la Corte — "the Senate is alegislative body, exercising in connection with the House only the power to make laws. But it has had conferred upon it by the Constitution certain powers which are not legislative but judicial in character. Among these is the power to judge of the elections, returns

and qualifications of its members. That power carries with it authority to take such steps as may beappropriate and necessary to secure information upon which to decide concerning elections" (Barry, supra, 871). Y al final de la sentencia la Corte sienta la siguiente afirmacion que es muysignificativa para el presente caso: "Here the question under consideration concerns the exercise by the Senate of an indubitable power; and if judicial interference can be successfullyinvoked it can only be upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of the due process of law. That condition we are unable to find in the present case" (Barry, supra, 874). De suerte que, bien mirado, el asunto de Barry hasta es un argumento en favor de la jurisdiccion de esta Corte Suprema para conocer y enjuiciar la Resolucion Pendatun,para determinar si con ella se ha infringido o no la Constitucion. Se arguye que los recurridos no hicieron mas que actuar sobre un informe rendido por la Comisioon sobre Elecciones en obediencia a un mandato constitucional. En el informe se recitaban ciertos hechos y se sentaban conclusiones sobre alegados actos de terrorismo y violencia que posian afectar a la eleccion de los recurrentes. Se dice que la Resolucion Pendatun no es sino la reaccion, la respuesta de los recurridos adicho informe; que estos tenian absoluta discrecion sobre el particular; que ello entraba dentro de sus poderes politicos y no era revisable por el departamento judicial. Para contestar esto nos bastara repetir que la Resolucion Pendatun es algo mas que el ejercicio de un poder politico y discrecional: es una usurpacion de poderes constitucionales pertenecientes a otro organismo constitucional; y para demostrarlo no necesitamos reproducir los argumentos ya extensamente expuestos. Por lo demas, el discutido informe de la Comission sobre Elecciones no tiene el valor ni alcane que le atribuye. Ese informe no podia autorizar ni justifica ninguna accion que como la Resolucion Pendatun tuviese el efecto de privar a los recurrentes de sus asientos en el Senado, siguera temporalmente. El documento sometido por la Comision sobre Elecciones que tiene verdadero valor constitucional y legal, que tiene fuerza obligatoria, es su proclama declaranda electos a los recurrentes. Esa proclama impone a los recurridos el deber ministerial de recibir y aceptar a los recurrentes como miembros del Senado hasta que el Tribunal Electoral diga otra cosa. ¿Como un

informe, que ni siquiera es al resultado de una investigacion propia, sino que esta basado en otros informes de fuerea, podia tener la trascendencia que se le ha dado, tomando pie del mismo para una sacudida seismica de tales proporciones como es la suspension de los derechos de tres miembros electos del Senado y siete miembros electos de la Camara de Representantes? Ni la imaginacion mas libre y erratica en la Asamblea Nacional pudo haberse figurado jamas este efecto a cuenta de esa clausula inofensiva de la Constitucion que manda a la Comision sobre Elecciones presentar un informe despues de cada eleccion al Jefe Ejecutivo y al Congreso. La accion sobre ese informe no puede ir mas alla de los limites que confinan cada poder. El Ejecutivo, por ejemplo, investigaria los abusos e irregularidades los funcionarios encargados de ejecutar y hacer cumplir la Ley Electoral en cumplimiento de su mandato constitucional de ejecutar las leyes y de hacer que estas se ejecuten fielmente (Constitucion de Filipinas, Articulo VII, secciones 7 y 10); y el Congreso estudiaria y consideraria reformas a la ley con vista de dicho informe, o bien crearia inmediatamente el Tribunal Electoral para despachar sin demora las protestas sobre elecciones legislativas. El Ejecutivo no podria, por ejemplo, so pretexto de tremendas irregularidades y anomalias expuestas en el informe sobre elecciones locales y provinciales, mandar suspender el juramento de algun concejal, alcalde o gobernador provincial electo, puesto que esto seria una usurpacion y una invasion de la jurisdiccion de los tribunales de justicia. De todo lo antedicho resulta evidente que, resolviendo la promera cuestion propuesta, la Resolucion Pendatun objeto de controversia es ilegal, es anticonstitucional y es, por tanto, insostenible. Segunda cuestion. — A la luz de nuestra Constitucion y de nuestras leyes ? tiene este Tribunal Supremo jurisdiccion y competencia para conocer, enjuiciar y decidir el asunto? Los recurrentes invocan nuestra jurisdiccion pidiendo un remedio a que, segun ellos, tienen derecho bajo la Constitucion y la ley. Alegan que son Senadores electos y, por tanto, funcionarios constitucionales de Filipinas, pues el Senado es cuerpo constitucional; que han sido

debidamente proclamados por la Comission sobre Elecciones bajo las dispposiciones de la Ley No. 725 y, por tanto, tienen derecho por ministerio de la Constitucion y de la ley a ocupar sus asientos en el Senado con todos los derechos, prerrogativas y privilegios anejos al cargo; que, sin embargo, los recurridos, o mas bien una mayoria de ellos, han aprobado una resolucion — la Resolucion Pendatun — por la cual se les priva de sud asientos; que dicha resolucion infringe la Constitucion y la ley; por tanto, piden dictemos sentencia "declarrando entramente nula y de ningun valor la citada resolucion, y prohibiendo consecuentemente a los recurridos y a cada uno de ellos a impedir a los recurrentes a continuar en sus asientos en el Senado de Filipinas y a ejercer libremente sus cargos como Senadores, y prohibiendoles igualmente a realizer cualquier otro procedimiento ulterior para ejeccutar la resolucion citada." ¿Podemos negarnos a asumir la jurisdiccion que se invoca? ¿Hay alguna manera de evadir la cuestion, inhibiendose este Tribunal de declarar si es o no verdad que se han infringido la Constitucion y la ley, y de conceder el remedio pedido si ha habido tal infraccion? La comodidad, la linea de menor resistencia hubiera sido por el lado de la inaccion, de la inhibicion. Nos damos perfecta cuenta de la tremenda responsabilidad que supone el mantener la armonia entre los poderes del Estado. Es parte de la prudencia y sabiduria de los gobernantes el evitar en todo lo posible cualquier ocasion de conflicto entre dichos poderes, recordando siempre que si las instituciones son entidades abstractas, por ende anestesicas, insensibles, los hombres estan hechos de arcilla animada y ya no son tan impasibles como las instituciones. Pero hemos hallado que en el presente caso nuestro deber de actuar, y de actuar positivamente, tiene la fuerza de un imperativo categorico. Nuestra jurisdiccion esta escrita en la Constitutcion, se halla reafirmada en la ley. En el Titulo VIII de la Constitucion (sobre la judicatura) esta declarada tanto implicita como expresamente la facultad judicialde resolver y decidir casos constitucionales; y en la regla 67 del Reglamento de los Tribunales hallamos la implementacion procesal de esa jurisdiccion y competencia. Puede decirse que en este respecto nuestra Constitucion es una edicion mejorada de la Constitucion federal de los Estados Unidos. Como se sabe, la llamada facultad judicial de revisar la Constitucion en controversias propiamente planteadas no se halla concedida expresamente en la magna carta americana. Ha diso el

genio audaz de sus juristas, particularmente del gran Marshall, el que arrnaco esa facultad de las penumbras de la Constitucion (Marbury vs. Madison [1803], 1 Cranch, 137) contribuyendo ello grandemente, segun opinion general de los criticos tanto nacionales como exranjeros, a fortalecer y estabilizar las instituciones politicas de America. Aprovechando la experiencia americana hemos escrito expresamente en nuestra Constitucion lo que en Americ no era mas que doctrina judicial o jurisprudencia. Se dice, sin embargo, con todo enfasis, con todo vigor, que aun admitiendo que los recurridos, actuando como mayoria del Senado, hayan infringido la Constitucion al aprobar la Resolucion Pendatun y hacerla efectiva, con todo la judicatura, la judicatura filipina no tiene jurisdiccion para intervenir en el caso, bajo el principio de la separacion de poderes que informa nuestra Constitucion. Se arguye que los tres poderes del Estado son igueles; que ninguno de ellos es superior al otro; que cada poder puede interpretar la Constitucion a su modo y cuando asi lo hace ningun otro poder puede ni debe entrometerse yu revisar su interpretacion; que el Senado es el unico juez de sus actos y si algun ciudadano sale agraviado por algun alegado atropello a sus derechos constitucionales, su recurso no esta en acudir al poder judicial o al poder ejecutivo, sino en apelar directamente al pueblo en la epoca de elecciones, en los comicios, empleando el arma civil por excelencia del ciudadano — la balota; y, finalmente, que el poder judicial no es un "curalo todo," una especie de Don Quijote que con la lanza en ristre pretenda endereezar todos los entuertos. Como se ve, nos llaman a decidir custiones de tremenda importancia para el desenvolvimiento constitutcional en este pais; lo que resolvamos puede trascender mucho mas alla del promedio de tiempoo en que puede durar nuestra existencia. Puede dicirse sin inmodestia que grandes diciones del futuro — empleamos la palabra no en su sentido exclusivamente judicial — dependeran de como resolvamos esas cuestiones formidables que se nos plantean hoy. En parte, el argumento expuesto es correcto y acertado. No se puede discutir que los tres poderes del Estado son iguales e independientes entre si; que ninguno de ellos es superior al otro, mucho menos el poder judicial que entre los tres es el menos fuerte y el mas precario en medios e

implementos materiales. Tampoco se pude discutir que bajo la Constitucion cada poder tiene una zona, una esfera de accion propia y privativa, y dentro de esa esfera un cumulo de facultades que le pertenecen exclusivamente; que dentro de esa esfera y en el suso de esas facultades cada poder tiene absoluta discrecion y ningun otro poder puede controlar o revisar sus actos so pretexto de que alguien los cuestiona o tach de arbitrarios, injustos, imprudentes o insensatos. Pero la insularidad, la separacion llega solo hasta aqui. Desde Montesquieu que lo proclamo cientificamente hasta nuestros dias, el principio de la separacion de poderes ha sufrido tremendas modificaciones y limitaciones. El consenso doctrinal hoy es que la teoria es solo relativa y que la separacion de poderes queda condicionada mecanica constitucional — la mecanica de los frenos y cortapisas. (Willoughby, On the Constitution of the United States, tomo 3, pags. 1619, 1620, 2.ª edicion.) Como queda dicho, cada poder es absoluto dentro de la esfera que le asigna la Constitucion; alli el juego de sus facultades y funciones no se puede coartar. Pero cuando se sale y extravasa de esa esfera invadiendo otros esferas constitucionales, ejerciendo facultades que no le pertenecen, la teoria de la separacion ya no le ampara, la Constitucion que es superior a el le sale al encuentro, le restringe y le achica dentro de sus fronteras, impidiendo sus incursiones anticonstitucionales. La cuestion ahora a determinar es si bajo nuestro sistema de gobierno hay un mecanismo que permite restablecer el juego normal de la Constitucion cuando surgen estos desbarajustes, estos conflictos que podriamos llamar de fronteras constitucionales; tambien es cuestion a determinar si cuando surgen esos conflictos, un ciudadano sale perjudicado en sus derechos, el mismo tiene algun remedio expedito y adecuado bajo la Constitucion y las leyes, y quien puede concederle ese remedio. Y con esto llegamos a la cuestion basica, cardinal en este asunto. Nuestra opinion es que ese mecanismo y ese remedio existen — son los tribunales de justicia. "They very essence of the American conception of the separation of powers is its insistence upon the inherent distinction between lawmaking and law-interpreting, and its assignment of the latter to the judiciary, a notion which, when brought to bear upon the Constitution, yields judicial review" (Corwin, The Twilight of the Supreme Court, p. 146). En Angara contra Comision Electoral (supra) dijimos que "prescindiendo del tipo ingles y otros tipos europeos

de gobierno constitucional, los redactores de nuestra Constitucion han adoptado el tipo americano, en donde el departamento judicial interpreta y da efecto a la Constitucion escrita. En algunos paises, que han rehusado seguir el ejemplo americano, se han insertado disposiciones en sus constituciones prohibiendo a los tribunales que ejerciten su facultad de interpretar la ley fundamental. Esto se toma como un reconocimiento de lo que, de otro modo, seria la regla de que a falta de prohibicion expresa los tribunales estan obligados a asumir lo que logicamente es deber suyo" (Angara contra Comision Electoral, 63, Jur. Fil., 173, 174). En el famoso asunto de Marbuyr vs. Madison, supra, el Tribunal Supremo de los Estados Unidos, por boca de su gran Chief Justice John Marshall, en tarminos inequivocos definio y explico las facultades de la judicatura para poner en vigor la Constitucion como la suprem ley del pais, y declaro que "es terminantemente de la competencia y deber del departamento judicial el decider cual es la ley que rige. The reasoning of Webster and Kent is substantially the same. Webster says: "The Constitution being the supreme law, it follows of course, that every act of the legislature constrary to the law must be void. But who shall decide this question? Shall the legislature itself decide it? If so, then the Constitution ceases to be legal and becomes only a moral restraint for the legislature. If they, and they only, are to judge whether their acts be conformable to the Constitution, then the Constitution is advisory and accessory only, not legally binding; because, if the construction of it rest wholly with them, their discretion, in particular cases, may be in favor of very erroneous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the validityof particular acts." Webster, Works, Vol. III, 30. (Willoughby on the Constitution of the United States, Vol. 1, 2d edition pp. 4,5.) En realidad, esta cuestion no es nueva en esta jurisdicion. El precedente mas inmediato que tenemos en nuestra jurisprudencia es el asunto de Angara contra Comision Electoral ya tantas veces citado (1936). Por primera vez

se planteaban y discutian ante esta Corte cuestiones importantisimas resultantes de la Constitucion del Commonwealth que acababa de promulgarse. Se trataba precisamente de deslindar las zonas constitucionales ocupadas por la Asamblea Nacional y la Comision electoral; es decir que, fundamentalmente, casi, casi las mismas cuestiones que ahora se plantea ante nosotros. La teoria de la separacion de poderes — el leit motif de la presente controversia — se analizo y discutio alli hasta en sus ultimas implicaciones los siguientes; Jose Angara habia sido proclamado Representante electo por uno de los distritos de Tayabas. Al inaugurarse la Asamblea Nacional su acta fue confirmada por este cuerpo juntamente con las de otros Representantes contra quienes no se habian formulado protestas. el acta de Angara no estaba protestada entonces. Algunos dias despues Pedro Insua, su contrincante, presento una protesta ante la Comision electoral que acababa solamente de constituirse. Escuadado tras el hecho de que su acta ya habia sido confirmada por la Asamblea Nacional, Angara vino a esta Corte planteando una accion orginaria para que se expidiera un mandamiento de inhibicion prohibiendole a la Comision Electoral que siguera conociendo de la protesta. Esta Corte acepto el reto asumiendo jurisdiccion sobre el caso, procediendo a desempenar su alta funcion de interllamo deslinde de facultades constitucionales. Reconociendo y estableciendo firmemente la jurisdiccion exclusiva de la novisima Comision Electoral sobre controversias relativas a la eleccion de miembros de la Asamblea Nacional, esta Corte denego el recurso de prohibicion. Llevaando las cosas por la tremenda, la Asamblea Nacional, bajo la teoria de la separacion de poderes, pudo haber ignorado la decision de esta Corte, pudo haber pasado por encima de la Comision Electoral conservandole el asiento a Angara, ya que el acta de este habia sido confirmada por ella cuando jjaun no habia portesta. No lo hizo. La Constitucion, casi entre los pañales aun de su cuna, se salvo gracias a la compostura de todo el mundo, saliendo ilesa de la prueba, rodeada de grandes prestigios. Las conclusiones y pronunciamientos de la Corte por boca del ponente el Magistrado Laure, parecen estereotipados para el case que nos ocupa y para el presente momento historico con todas sus crisis; asi que los vamos a reproducir en toda su integridad a continuacion: La separacion de poderes es un principio fundamental de nuestro sistema de gobierno. Se

establece, no por disposicion expresa, sino por division real trazada en nuestra Constitucion. Cada departamento del Gobeierno tiene conocimiento exclusivo de las materias que caen dentro de su jurisdiccion, y es supremo dentro de su propia esfera. Pero del hecho de que los tres poderes han de conservarse separados yu distintos no se sigue que la Constitucion se propuso que fuerean absolutamente irrestringidos e independientes unos de otros. La Constitucion ha dispuesto un sistema elaborado de frenos y cortapisas para asegurar coordinacion en los trabajos de los varios departamentos del Gobierno. Por ejemplo, el Jefe Ejecutivo, bajo nuestra Constitucion, es hasta tal punto erigido en un freno para el poder legislativo que se requiere su asentimiento en la aprobacion de las leyes. Sin embargo, esto esta sujeto al ulterior freno de que un proyecto de ley puede convertirse en ley no obstante la negativa del Presidente de aprobarlo, por medio de una votacion de dos tercios tiene el Presidente facultad de convocar a la Asamblea cuando lo crea conveniente. Por otra parte, la Asamblea Nacional funciona como un freno sobre el Ejecutivo, en el sentido de que es necesario su consentimiento, por medio de la Comision de Nombramientos, en el nombramiento de ciertos funcionarlos; y es esencial la conformidad de todos sus miembros para la conclusien de tratados. Ademas, en su facultad de determinar que tribunales, que no sea el Tribunal Supremo, se habran de establecer, para definir su competencia, y de destinar fondos para su sostenimiento, la Asamblea Nacional rigte al departamento judicial en cierto grado y medida. La Asamblea ejercita, tambien, la facultad judicial de conocer de recusaciones. Y la judicatura, a su vez, con el Tribunal Supremo por arbitro final, frena con efectividad a los demas departamentos en el ejercicio de su facultad de determinar la ley, y de aqui que pueda declarar nulos los actos ejecutivos y legislativos que contravengan la Constitucion. Pero, en esencia, la Constitucion ha delineado con mano firme y en terminos energicos la

sasignacion de facultade as los departamentos ejecutivo, legislativo y judicial de Gobierno. La superposicion y el entralazamiento de funciones y deberees de los varios departamentos, sin embargo, a veces hace dificil decir precisamente donde termina uno y empieza otro. En tiempos de intraquilidad social o excitacion politica, las grandes piedras angulares de la Constitucion son susceptibles de ser olvidadas o anubladas, si no desatendidas enteramente. En casos de conflicto, el departamento judicial es el unico organismo constitucional que puede ser llamado para deteminar el proprio deslinde de facultades entre los varios departamentos y entre las unidades integrales o constituyentes de los mismos. Como cualquier producto humano, nuestra Constitucion carece, desde luego, de perfeccion y perfectibilidad; pero, en tanto en cuanto estaba en manos de nuestro pueblo disponerlo asi, obrando por medio de sus delegados, ese instrumento, que es expresion de su soberania, por limitada que se, ha establecido un gobierno republicano destinado a obrar y funcionar como un conjunto armonico, bajo un sistema de frenos y cortapisas, y con sujecion a las limitaciones y restricciones que se disponen en dicho instrumento. La Constitucion señala, en un lenguaje nada incierto, las restricciones y limitaciones de los poderes y organismos gubernamentales. Si estas restrcciones y limitaciones fueran traspuestas, seria inconcebible que la Constitucion no hubiera dispuesto un mecanismo por el cual pudiera encauzarse el curso del Gobierno por los canales constitucionales, pues entoneces la distribucion de poderes seria merea palabreria, el bill de derechos meras expresiones sentimentales, y los principios de buen gobierno meros apotegmas politicos. Ciertamente, las limitaciones y restricciones que comprende nuestra Constitucion son reales, como debe serlo en cualquier Constitucion. En loos Estados Unidos en donde no se encuentra ninguna concesion constitucional expresa en su Constitucion, la posesion de este poder moderador de los tribunales, por no diceir ya

nada de su origen historico y desenvolvimiento aqui, ha sido dejado en reposo por la aquiescencia popular por un periodo de mas de un siglo y medio. En nuestro caso, este poder moderador esta concedido, si no expresamente, por decuccion tacita del articulo 2, Titulo VIII, de nuestra Constitucion. La Constitucion es una defnicion de las facultades del Gobierno. ¿Quien es el llamado a determinar la naturaleza, proposito y alcance de esas facultades? La Constitucion misma ha dispuesto el organismo de la judicatura como el medio racional. Y, cuando la judicatura media para determinar los linderos constitucionales, no mantiene ninguna superioridad sobre los otros departamentos; en realida no anula ni invalida un acto de la Legislatura, sino que solamente asevera la solemne y sagrada obligacion a ella asignada por la Constitucion de determinar pretensiones incompatibles de autoridad dimanada de la Constitucion, y de establecer para las partes en una contraversia actual los derechos que ese intrumento asegura y garantiza a las mismas. Esto, a la verdad, es todo lo que va implicito en la expresion "supremacia judicial", que propiamente es la facultad de revision judicial bajo la Constitucion. Aun entonces, este poder de revision judicial esta limitado a casos y controversias reales, que se ha de ejercitar despues de que las partes han tenido plena libertad de hacerse oir, y esta, ademas, limitado a la cuestion constitucional suscitada, o a la misma lis mota planteada. Cualquier tentativa de abstraccion , solo conduciria a la dialectica, y obstaculizaria las cuestiones legales, y a conclusiones esteriles que nada tendrian que ver con los hechos reales. Circunsrita de este modo a sus funciones, la judicatura no se ocupa de resolver cuestiones sobre la cordura, justicia o convenciencia de la legislacion. Aun mas, los tribunales conceden la presucnion de constitucionalidad a las leyes aprobadas por la Legisltura, no solamente porque se presume que esta acata la Constitucion, sino, tambien, porque la judicatura, en el fallo de actuales casos y controversias, debe reflejar la sabiduria

y la justicia del pueblo, tal y como se han expresado por medio de sus representantes y por los departamentos ejecutivo y legislativo del Gobierno. Pero por mucho que pudieramos postular sobre los frenos internos de poderes que dispone nuestra Constitucion, debe, con todo, recordarse que, segun las palabras de James Madison, el sistema mismo no es el principal paladin de la libertad constitucional . . . el pueblo, que es el autor de esta bendicion, debe, tambien, ser su guardian . . . sus ojos deben siempre estar alertos para señalar, su voz para delatar . . . agresiones a la autoridad de su constitucion. En ultimo analisis, pues, el trinof de nuestro Gobierno en los años venideros debera ser puesto a prueba en el crisol de las mentes y en los corazones de los filipinos, mas bien que en las salas de consultas y camaras de audiencia de los tribunales." (Angara contra Comision Electoral, 63 Jur. Fil., 169-172.) Algo mas se puede añadir sobre el caso de Angara. Alli la Corte descarto sin vacilaciones la posibilidad de un vacio, de un estado juridico de inerme impotencia frente a conflictos constitucionales, sentando la siguiente conclusion: "En nuestro caso, la indole de la actual contrversia revela la necesidad de un arbitro constitucional ultimo que determine la incompatibilidad de facultades entre dos organismos creados por la Constitucion. Si fueramos a rehusar el conocer de la contrversia ?quien determinaria el conflicto? Y si se dejara sin decidir ni determinar el conflicto ¿no se crearia en si un vacio en nuestro sistema constitucional que la larga daria por resultado echar a perder toda la labor? El hacer estas preguntas es contestarlas. Natura vacuum abhorret, por lo que debemos evitar toda postracion en nuestro sistema constitucional." No solamente esto — añadimos — sino que a toda costa debemos evitar que fuera de la legalidad sse forme un "territorio de nadie" donde puedan germinar situaciones peligrosas y explosivas. Pero ademas del caos de Angara tenemos en nuestra jurisprudencia otro precedente mas inmediato todavia en apoyo de la tesis de la supremacia judicial en tratandose de interpretar la Constitucion y de dirimir conflictos

constitucionales; nos referimos al asunto de Carmen Planas, recurrente, contra Jose Gil, Comisionado del Servicio Civil, recurrido, decidido por este Tribunal Supremo el 18 de enero de 1939 bajo la ponencia del mismo Magistrado Laurel (67 Phil., 62). Carmen Planas, siendo miembro de la Junta Municipal de Manila, publico un articulo en La Vanguardia criticando duramente a ciertos funcionarios del Gobierno, entre ellos el Presidente de Filipinas Sr. Quezon, en relacion con las elecciones de Diputados a la Asamblea Nacional celebradas el 8 de noviembre de 1938. Entre los fuertes cargos formulados por la articulista contra los dioses del Olimpo oficial , figuraban los siguientes: que, no obstante el tacito interdicto impuesto por la Constitucion al disponer que el Presidente de Filipinas ejerciese su cargo por un solo periodo — años — sin reeleccion, situandosele de esta manera en las serenas alturas del Poder como un supremo arbitro, moderador y neutral, el Sr. Quezon intervino activamente en aquellas elecciones a favor de los nacionalistas poniendo en juego toda la enorme influencia de su cargo y apalstando asi a los condidatos de la oposicion; que toda la maquinaria del Gobierno se movilizo favor de los candidatos nacionalistas, colocandose en la vanguardia de dicha movlizaccion los miembros del Gabinete; y que no se escatimaron medios para asegurar el trifunfo de los coandidatos de la adminstracion, el fraude y la corrupcion inclusive. Al dia si guiente de haberse publicado este articulo sensacional, la Srta. Planasa recibio una carta firmada de la siguiente manera: "By authority of the President: Jorge B. Vargas, Secretary to the President," en donde se le decia: "Por la presente se le instruye que comparezca ante el Comisionado del Servicio Civil, sola o acompañada por un abogado, a las 9 de la mañana, Noviembre 22, para porbar las declaraciones hechas por usted. El que tales cargo no se puedan sostener o no se pruebe que se han hecho de buena fe, sera considerado como razon suficiente para su suspension o destitucion del cargo." La Srta. Planas objeto a la investigacion rescusando al Comissionaldo del Servicio Civil. Este, sin embargo, insistio en proseguir la investigacion y fue entonces cuando ella vino ante este Tribunal Supremo pidiendo un mandamiento de prohibicion contra el Comisionado, por los siguientes fundamentos, entre otros: que bajo la Constitucion y las leyes que protegen la libertad de palabra y de expresion, ella tenia derecho o formular la censura de que se trata como libre ciudadana de un pais

democretico; que, en efecto, ella escribio el articulo no como concejal sino como persona particular; que como funcionario ella solamente podia ser investigada y exigirsele responsabilidad por motivo de prevaricacion, mala conducta o infraccion relacionada con su cargo, y este no era el caso; que suponiendo que el articulo en cuestion fuera libeloso o contuviera algo por lo cual la articulista pudiera ser cirminalmente responsable, el Codigo Penal y el Procedimiento Criminal Señalan el modo de hacerefectiva esa responsabilidad ante los tribunales de justicia. El Procurador General, al impugnar el recurso, aleego entre otros fundamentos que este Tribunal, bajo "el principio de la separacion de poderes establecido por la Constitucion, no tenia jurisdiccion para revisar las ordenes del jefe Ejecutivo de que se trata, las cuales son de caracter puramente administrativo," citandose en apoyo de la impugnacion las sentencias de este Tribunal en los asunto de Severino contra El Gobernador General y Junta Provincial de Negros Occidental, Abueva contra Wood y Alejandrion contra Quezon, citados en otra parte de esta disiddencia. Esta Corte desestimo la objecion y resolvio que tenia jurisdiccion y competencia sobre el caso, diciendo que si bien "los actos del Ejecutivo ejecutados dentro de los limites de su jurisdiccion son sus actos oficialies y los tribunales no dirigiran ni controlaran la accion ejecutiva en tales casos" (la regla es la de nointervencion), sin embargo, "de esta premisa legal no se sigue necesariamente que no podemo inquirir la validez o constitucionalidad de sus actos cuando estos se cuestionan y atacan en un procedimiento legal apropiado." "Por lo que respecta a la judicatura" — añadio esta Corte — "si bien es verdad que ella no agara `ni la estpada ni la bolsa," es por arreglo constitucional el organo llmado para deslindar las fronteras constitucionales, y al Tribunal Supremo esta encomendada expresamente o por necesari aimplicacion la oblligacion de determinar en procedimientos appropieados la validea o constitucionalidad de cualquier tratado, ley, ordenanaza, orden ejecutiva o regulacion." Es verdad que esta Corte denego el recurso interpuesto por la Srta. Planas, pero no por el fundamento de la falta de jurisdiccion alegado poor el Procurador General, sino porque llego a la conclusion de que la orden de investigacion cuestionada caia dentro de los limites constitucionales de la jurisdiccion del Presidente, y, por tanto, era valida, constitucional y legalmente. He aqui los

prononciamientos pertinentes de la Corte, los cuales no tienen desperdicio y reafirman con todo vigor la doctrina de la supremacia judicial en materia de deslindes constitucionales, establecida en el asunto de Angara, a saber: The Solicitor General, under the last paragraph (par. 10) of his amended answer, raises the question of jurisdiction of this court over the acts of the Chief Executive. He contends that "under the separation of powers marked by the Constitution, the court has no jurisdiction to review the orders of the Chief Executive, evidenced by Annex A and Annex C of the petition, which are of purely administrative character." Reliance is had on the prrvious decisions of this court: Severino vs. GovernorGeneral ([1910], 16 Phil., 366);Abueva vs. Wood ([1924], 45 Phil., 612); and Alejandrino vs. Quezon ([1924], 46 Phil., 83). Although this is the last point raised by the Government in its answer, it should, for reasons that are apparent, be first to be considered. If this court does not have jurisdiction to entertain these proceedings, then, the same should be dismissed as a matter of course; otherwise the merits of the controversy should be passed upon and determined. It must be conceded that the acts of the Chief Executive performed within the limits of his jurisidction are his official acts and courts will neither direct nor restrain executive action in such cases. The rule is noninterference. But from this legal premise, it does not necessarily follow that we are precluded from making an inquirey into the validity or constitutionality of his acts when those are properly challenged in an appropriate legal proceeding. The classical separation of governmental powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine orgin, we cannot lay down "with

mathematical precision and divide the branches into watertight compartments" not only because "the great ordinances of the Constitution do not establish and divide fields of blacks and white" but also because "even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other." (Springer vs. Government [1928], 277 U.S. 189; 72 Law ed., 845, 852.) As far as the judiciary is concerned, while it holds "neither the sword nor the purse" it is by constitutional placement the organ called upon to allocate constitutional boundaries, and to the Supreme Court is entrusted expressly or by necessary implication the obligation of determinig in appropriate cases the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation. (Sec. 2 [1], Article VIII, Constitution of the Philippines.) In this sense and to this extent, the judiciary restrains the other departments of the government and this result is one of the necessary corollaries of the "system of checks and balances" of the government established. In the present case, the President is not a party to the proceeding. He is neither compelled nor restrained to act in a particular way. the Commissioner of Civil Service is the party respondent and the theory is advanced by the Government that because an investigation undertaken by him is directed by authority of the President of the Philippines, this court has no jurisdiction over the present proceedings instituted by the petitioner, Carmen Planas. The argument is ferafetched. A mere plea that a subordinate officer of the government is acting under orders from the Chief Executive may be an important averment, but is neither decisive nor conclusive upon this court. Like the dignity of his high office, the relative immunity of the Chief Executive from judicial interference is not in the nature of a sovereign passport for all the subordinate officials and employees of the Executive Department to the extent that at the mere invocation of the authority that it purports the jurisdiction of this court to inquire into the validity or legality of an executive order is

necessarily abated or suspended. The facts in Severino vs. Governor-General (supra), Abueva vs. Wood (supra), and Alejandrino vs. Quezon, (supra), are different, and the doctrines laid down therein must be confined to the facts and legal environment involved and whatever general observations might have been made in elaboratioon of the views therein expressed but which are not essential to the determination of the issues presented are mere obiter dicta. While, generally, prohibition as an extraordinary legal writ willnot issue to restrain or control the performance of other than judicial or quasijudicial functions (50 C.J., 658), its issuance and enforcement are regulated by statute and in this jurisdiction it may issue to any inferior tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, whose acts are without or in excess of jurisidction. (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged investigation by the respondentCommissioner of Civil Service, which investigation if unauthorized and is violative of the Constitution as contended is a fortiori without or in excess or jurisdiction. The statutory rule in this jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304, 307; Aglipay vs. Ruiz [1937], 35 Off. Gaz., 1264.) This court, therefore, has jurisdiction over the instant proceedings and will accordingly proceed to determine the merits of the present controversy.

Se arguye, sin embargo, que de permitirse la interventcionjudicial para deslinde constitucional o para dirimir conflictos constitucionales, ello tiene que ser en casos o procedimientos apropiados. Se dice que en el asunto de Angara la intromision judicial era procedente y justificada porque en el la parte litigante era solo la Comision (Tribunal) Electoral, como recurrida, y la Asamblea Nacional, como uno de los tres poderes del Estado, no era ni recurrente ni recurrida. Por analogia se insinua tambien que en el asunto de Planas contra Gil Presidente de Filipinas no era parte directa sino tan solo el Comisionado del Servicio Civil. El argumento es de esos que, por su sutileza, provocan una batalla de argucxias hasta sobre el filo de una navaja, como se suele dicir. Es verdad que en el caso de Angara la Asamblea Nacional no era parte directa porque de su inclusion no habi necesidad; pero ¿cambia ello el aspecto de la cuestion? ¿Se puede negar que alli habia conflicto de jurisdicciones contituciones constitucionales entre la Asamablea y la Comision electoral y que cuando, a instancia de parte, se invoco y pidio la intervencioon de esta Corte, la misma intermvino y se declaro competente para hacer el deslinde constituticonal y finalmente adjudico la zona disputada a la Comision (Tribunal) Electoral? Supongase que una mayoria de los miembros de la Asamblea Nacional, pasando por encima de la sentencia de esta Corte, hubieran insistido en hacer efectiva la confirmacion del acta de Angara y le hubieran dado un asiento en los escanos de dicha Asamblea, despojando a la Comision Electoral de su derecho de conocer y enjuiciar la protesta de Insua ?hubiera ello modificado la fase fundamental del caso, haciendo constitucional lo que era anticonstitucional, y hubiera perdido este Tribunal Supremo la jurisdiccion para entender del asunto? Indudablemente que no: la infraccion de la Constitucion seria misma, tal vez mayor y mas grave; y la jurisdiccion de este Tribunal para interveneir en el conflicto, mas obligada y mas forzosa, a fin de mantener inviolada la suprema Ley de la nacion. En otras palabras, la inhibicion judicial no seria una actitud mas correcta, mas sana y mas prudente tan solo porque la infraccion de la Constitucion fuera mas audaz y mas agresiva. Aqui no habria medias tintas: to be or not to be, que dijo Hamlet. Y lo propio se puede decir del asunto de Planas contra Gil. Es verdad que el Presidente no estaba nombrado como parte directa en el litigio. Pero ?que mas da? ?No se

trataba de una orden ejecutiva expedida por directa autorizacion del Presidente? Y asi como se pudo dictar una sentencia a favor del recurrido por el fundamento de que con la expedicion de la orden cuestionada el Presidente ne se habia extralimitado de sus facultades constitucionales y estatutorias, a sensu contrario tambien se hubiera podido dictar una sentencia adversa, es decir, si se hubiese tratado de un acto ejecutivo que cae fuera de las facultades conferidas al Presidente por la Constitucion; y en este ultimo caso la sentencia no hubiera sido menos derogatoria tan solo porque hubiese estado dirigida contra el Comisionado del Servicio Civil que actuaba por mandato directo del Presidente. El que esta a las maduras, tambien debe estar a las duras. . . . Se nos dice, sin embargo, que el caso de Angara no es la cita pertinente aplicable, sino el de Alejandrino contra Quezon (46 Jur. Fil., 87, 151), decidido en 1924. El Senador Alejandrino agredio a otro miembro del Senado fuera de la sala de sesiones de resultas de un debate acalorado. Con motivo del incidente la mayoria aprobo una resulucion. suspendiendo a Alejandrino por un año y privandole, ademas, de todas sus prerrogativas, privilegios y emolumentos durante dicho periodo de tiempo. Alejandrino planteo ante esta Corte una accion originaria pidiendo la expedicion de una orden de mandamus o interdicto para que se le repusiera en su cargo on todos los drechos y privilegios anexos. Se denego el recurso por el fundamento de que esta Corte carecia de jurisdiccion para conocer del asunto. Un somero examen del caso Alejandrino demuestra, sin embargo, que no tiene ninguna paridad con el que nos ocupa. Es evidente que el Senado tenia el derecho de castigar a Alejandrino dentro de sus facultades disciplinarias provistas por la ley organica — la Ley Jones. Esta era una facultad discrecional y constitucional cuyo ejercicio no podia ser regido ni revisado por ningun otro poder. Como hemos dicho mas arriba, cada poder es arbitro unico y exclusivo dentro de su esfera constitucional. (Planas contra Gil, 67 Phil., 62.) Ninguno tiene derecho a entrometerse en la forma como se las arregla alli. Pero nuestro caso es completamente diferente. Aqui los recurridos o la mayoria de los Senadores han ejercido una facultad que constitucionalmente no les pertenece. Por tanto, han traspasado los confined de su predio constitucional, invadiendo otro; por tanto, la Resolucion Pendatun es

completamente ultra vires. Y no es necesario que repitamos los argumentos ya extensamente desarrollados acercade este punto. Todas las autoridades que se citan en la decision de la mayoria en el asunto de Alejandrino tienen la misma ratiodecidendi, el mismo leit motif. Se trata de casos en que los actos discutidos recaian dentro de las facultades constitucionales del poder envuelto en el litigio; de ahi la negativa del departamento judicial a intervenir, a entrometerse. Y si examinamos los precedentes locales sobre la materia, vemos que la veta de la jurisprudencia tiene el mismo tipo, la misma naturaleza. En el asunto de Barcelon contra Baker y Thompson (5 Jur. Fil., 89) se declaro legal lo hecho por el Gobernador General por la razon de que caia dentro de sus poderes politicos o ejecutivos bajo la constitucion. Lo propio se hizo en los siguientes asuntos: Forbes contra Chuoco Tiaco y Crossfield, 16 Jur. Fil., 535; Asunto de McCulloch Dick, 38 Jur. Fil., 43, 225, 240; Severino contra gobernador General y Junta Provincial de Negros Occidental, 16 Jur. Fil., 369; Abueva contra Wood, 45 Jur. Fil., 643. Al negarse esta Corte a revisar lo actuado por el Jefe Ejecutivo en los casos citados, ha tenido indudablemente en cuenta el siguiente pronunciamiento del Chief Justice Marshall en el citado asunto de Marburry vs. Madison: "The Constitution itself endows the President with certain important political powers in the exercise of which he is to use his own discretion, and is accountable onlyu to his country in his political character, and to his own conscience." De modo que, en ultimo resultado, en tales casos se ha reconocido que el ejecutivo ha ejercido solamente sus poderes constitucionales; nada hay en ellos que sugiera la idea de la inmunidad e irresponsabilidad por una infraccion de la Constitucion. Contra la pretension de que el departamento judicial no puede revisar los procedimientos de una Camara legislativa en casos de extralimitacion constitucional y

dictar la orden correspondiente, militan varios precedentes en la jurisprudencia americana. El mas conocido y celebrado entre ellos es el asunto de Kilbourn vs. Thompson (103 U.S., 168; 26 Law. ed., 377). En 1876 la Camara de Representantes de los Estados Unidos aprobo una resolucion disponiendo que se investigara cierta compania en la que el gobierno federal, por medio del Secretario de la Marina, habia hecho depositos improvidentes de dinero publico. Se decia que la compania estaba en quiebra y el gobierno federal era uno de los mayores acreedores. Se alegaba, ademas, en la resolucion que los tribunales eran impotentes para hacer algo en el caso y proteger el interes publico. Se nombraba en la resolucion un comite de cinco Representates para efectuar la investigacion. En el curso de la investigacion se le cito al recurrente Hallet Kilbourn subpoena duces tecum para que produjera ante el comite ciertos documentos y contestase ciertas preguntas. Killbourn se nego a hacer lo uno y lo otro. Kilbourn fue entonces arrestado por orden del Speaker y como quiera que siguio rehusando contestar las mismas preguntas formulada ahora por el Speaker y producir los documentos requeridos por el comite, la Camara aprobo otra resolucion disponiendo que Kilbourn fuese otra vez arrestado y detenido en la carcel de Distrito de Columbia hasta que se aviniese a cumplir la orden contenida en las resoluciones de la Camara de representantes. Kilbourn no solo inistio en su negativa, sino que formulo una queja contra el sargento de armas de la Camara y los cinco miembros del Comite por "trespass for false imprisonment," acusandoles de haberle arrancado de su casa mediante fuerza y detnido por 45 dias en la carcel. Elevado el asunto al Tribunal Supremo Federal, este declaro que la resolucion de investigacion era anticonstitucional; que la investigacion no tenia por objeto una accion legislativa sino que era mas bien para una inquisicion de caracter judicial; asi que la Corte declaro lo siguiente: In looking to the Preamble and Resolution under which the committee acted, before which Mr. Kilbourn refused to testify, we are of opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because the power was in its nature clearly judicial.

The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in the cases specifically enumerated to which we have referred . . . We are of opinion, for these reasons, that the Resolution of the House of Representatives authorizing the investigation, was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Mr. Kilbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the Speaker, under which Mr. Kilbourn was improsined, are, in like manner, void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority. (Kilbourn vs. Thompson, 103 U.S., 168; 26 Law. ed., 377.) Finalmente, la Corte dispuso que la causa contra Thompson, el sargento de armas, se devolviera al tribunal de origen para ulteriores procedimientos. Se estimo el sobreseimiento con respecto a los miembros del comite bajo el principio de la libertad parlamentaria de debate qu les hacia imunes. A proposito de esto ultimo son muy significativas las siguientes palabras de la Corte: It is not necessary to decided here that there may not be things done, in the one House or other, of an extraordinary character, for which the members who take part in the act may be held legally responsible. If we could suppose the members of these bodies so far to forget their high functions and the noble instrument under which they act as to imitate the Long Pariliament in the execution of the Chief Magistrate of the Nation, or to follow the example of the French Assembly in assuming the functions of a court for capital punishment, we are not prepared to

say that such an utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional provision for freedom of debate. (Idem. p. 392.) Ademas de la precedente cita, varias decisiones de los mas altos tribunales pueden ictarse en apoyo de la doctrina de que "todos los funcionarios, departamentos o agencias gubernamentales estan sujetos a restriccion judicial cuando obran fuereaa de sus facultades, legales o constitucionales, y por virtud de dicha extralimitacion privan a un ciudadano de sus derechos" (Osborn vs. United States Bank, 9 Wheaton [U.S.], 739; Board of Liquidation vs. McComb, 92 [U.S.], 531; United States vs. Lee, 106 U.S., 196; Virginia Cases, 114 U.S., 311; Regan vs. Farmers & Co., 154 U.S., 362; Smith vs. Ames, 169 U.S. 466; Ex parte Young, 209 U.S. 123; Philadelphia Co. vs. Stimson, 223 U.S. 605.) Respecto de la facultad judicial para expedir, en casos apropiados, ordenes coercitivas dirigidas a funcionarios de la Legislatura, hay en la jurisprudencia americana una buena copia de autoridades. He aqui algunas de ellas: . . . En el asunto Ex parte Pickett (24 Ala., 91) se libro el mandamiento contra el Presidente de la Camara de representantes para obligarle a que certificara al Interventor de Cuentas Publicas la cantidad a que tenia derecho el recurrente como miembro de lal Camara como compensacion por millaje y dietas. En el asunto de State vs. Elder (31 Neb., 169), se libro el mandamiento para obligar al Presidente de la Camara de Representantes para que abriera y publicara los resultados de la eleccion general. En el asunto de State vs. Moffitt (5 Ohio, 350) se declaro que procedia expedir un mandamus contra el Presidente de la Camara de Representantes para obligarle que certificara la eleccion y nombramiento de funcionarios. En el asunto de Wolfe vs. McCaull (76 Va., 87) se expidio el mandmiento para obligar al Archivero de las Nominas de la Camara de Representantes a que imprimiera y publicara un proyecto de ley aprobado por la Legislatura y, a solicitud, que facilitara copia del mismo propiamente certificada. (Veanse tambien los asuntos de

Kilbourn vs. Thompson, 103 U.S., 168; Statee vs. Gilchrist, 64 Fla., 41People vs. Marton, 156 N.Y., 136.) (Alejandrino contra Quezon, 46 Jur. Fil, 87, 149.) De lo expuesto resulta evidente que esta Corte tiene facultad para dictar la sentencia y expedir el interdicto que se solicita. La orden ira dirigida no contra el Senado de Filipinas, entidad abastracta que nada ha hecho contra la Constitucion. La orden resitringente ira dirigida contra los recurridos en cuanto ellos intentan hacer efectiva una resolucion que es ilegal, que es anticonstitucional, lo mismo que se hizo en el asunto de Kilbourn. Se les restringe y cohibe como se les restringiria y cohibiria si, por ejemplo, en vez de la Resolucion Pendatun, hubieran aporbado otra resolucion mandando a la carcel a los recurrentes hasta que el Tribunal Electoral resuelva la cuestion de sus actas. ¿Habria alguien que sostuviera que si en tal caso vinieran a esta Corte los afectados para pedir el adecuado remedio contra el atropello, esta Corte no podria concederlo bajo la teoria de la sepracion de poderes? Luego la cuestion se reduce a una de grado, de tamaño de la transgresion constitucional; pero es obvio que nuestra jurisdiccion y competencia no queda condicionada por el volumen de la transgresion. ¿Y quien diria en tal caso que el Senado de Filipinas ha sido el sujeto de la orden de interdicto, con grave desdoro de sus altos prestigios como uno de los tres poderes del Estado? Puesto que la accion en el presente caso va dirigida no contra el Senado como corporacion o institucion, sino contra una mayoria de sus miembros como personas, como individuos, si bien en su concepto de Senadores, dicho se esta que tenemos competencia para conceder el recurso, no solo por las razones constitucionales ya expuestas, sino porque esta claramente reconocida y definida dicha competencia en nuestros estatutos: anteriormente en los articulos 226 y 516 de la Ley No. 190 (Cod. de Proc. Civ.), y ahora en la regla 67, secciones 2 y 4, Reglamento de los Tribunales. Estas disposiciones legales prescriben que el mandamiento de inhibicion (prohibition) puede expedirse a "una corporacion, junta, o persona, en ejercicio de sus funciones judicales o ministeriales, siempre que se demuestre que carecian de competencia o se han extralimitado de ella en las actuaciones que hayan practicado" (Planas contra Gil ut supra). Sin embargo, se arguye que los recurridos como Senadores no ejercen funciones judiciales ni ministeriales,

sino legislativas; luego la regla no es aplicable a ellos. Pero es evidente que en el presente caso la funcion de que se trata no es de caracter legislativo sino ministerial; apenas es necesario decir que la Resolucion Pendatun no es un acto legislativo. Bajo la Constitucion y los estatutos el derecho de un miembro electo del Congreso a ser admitido y a ocupar su asiento es de naturaleza ministerial, imperativa. La Ley No. 725 del Commonwealth, aprobada por el pasado Congreso para implimentar la Ley Electoral con vista a Las elecciones nacionales del pasado 23 de Abril, dice en parte lo siguiente: ART. 11. La Comision de Elecciones hara el escrutinio de los resultados para Senadores tan pronto como se hayan recibido las actas decada provincia y ciaudad, pero no depues del viente de mayo de milnovecientos cuarenta y seis. Sera proclamados elegidos los dieciseis candidatos inscritos que obtuvieren el mayor numero de votos para el cargo de Seandor. En caso de que apareciere de los resultados del escrutinio de los votos para Senadores que dos os mas candidatos han obtenido el mismo numero de votos para el decimosexto puesto, la Comision de Elecciones, despues de hacer constar este hecho en el acta correspondiente, celebrara otra sesion publica, previa notificacion con tres dias de antelacion a todos los candidatos empatados, para que ellos os sus representantes debidamente autorizados puedan estar presentes si asi lo desearen, en la cual procedera al sorteo de los candidatos empatados y proclamara el candidato que saliere favorecido por la suerte. El condidato asi proclamado tendra derecho a tomar posesion del cargo del mismo modo que si hubiere sido elegido por pluralidad de votos. Acto seguido, la Comision de Elecciones levantara acta del procedimiento seguido en el sorteo, de su resultado y de la proclamacion subsiquiente. Se enviaran copias cerfificadas de dicha acta por correo certificado al Secretario del Senado y a cada uno de os candidatos empatados. Art. 12. . . . The candidates for Member of the House of Representatives and those for Senator who have been proclaimed elected by the respective Board of Canvassers and the

Commission on Elections shall assume office and shall hold regular session for the year 1946 on May 25, 1946 (las bastardillas son nuestras). Si bajo estas disposisciones legales los recurrentes tienen el derecho de asumir el cargo, es obvio que los demas Senadores, entre ellos los recurridos, tienen el correlativo deber ministerial de no impedirles el ejercicio de ese derecho, o dicho de otro modo, el correlativo deber ministerial de admitirles para que tomen posesion de sus cargos a la sola presentacion de sus credenciales que en este caso viene a ser la proclama expedidda por la Comision sobre Elecciones declarandolos electos (Delegado Roxas, debates en la Asamblea Constituyente, ut supra). Se dice que la frase shall assume office, con ser imperative, no impone una obligacion especifica de admitir a cualquier miembro electo, sino que es tan solo un mandamiento, un directive al legislador electo para que tome posesion de su cargo inmediatamente, como si un candidato triunfante que, es de presumir, se presento voluntariamente candidato y a lo mejor gasto una fortuna para promover su eleccion, necesitara de eseukase legislativo para asumir su oficio. Pero concedamos por un momento, arguendo, que esa disposicion legal no tiene mas que el significado de una especie de conscripcion civil, todavia cabe preguntar: ¿como prodri el legislador electoasumir forzosamente (shall) su cargo, si, por otro lado, un mayoria de sus compañeros en conclave tuvieran la facultad discrecional — que puede degenerar en arbitraria — de negarle el asiento, siquiera sea con caracter temporal? ¿No seria ello claramente un absurdo, un contrasentido? Luego la conclusion logica y natural es que esa frase imperativa es de doble via, esto es, tanto para admitir al miembro electo como para que este asuma el cargo. Se apunta el temor de que la intervencion judicial en el caso que nos ocupa puede dar lugar a una grave consecuencia — la de que una orden adversa sea desobedecida por los recurridos, suscitandose por tal motivo un conflicto de poderes. Pero, aparte de que el deber — maxime si esta impuesto por la Constitucion y las leyes — se tiene que cumplir rigurosamdnete por penoso que fuese sin consideraciona las consecuencias, parece impropio e injusto presumir que los recurridos sean capaces, en un momento dado, de desplazar las cuestiones que entraña la presente controversia del

elevado nivel en que deben discutirse y resolverse, en medio de un atmosfera de absouta impersonalidad y objetividad, libre de los miasmas de la pasion y suspicacia Y no se diga, fulanizando ostensiblemente la cuestion que cuando la judicatura, en el apropiado ejercicio de su facultad de interpretar la Constitucion y los estatutos, dicta un fallo adverso a ciertos intereses y a ciertos hombres pertenecientes a otro poder del Estado, humilla y empequeñece con ello a ese poder, colocandolo en condicion inferior y subalterna. en los grandes conflictos y disputas sobre la cosa publica lo que, en verdad, empequeñece y deslustra no es el contrateimpo y reves que se sufre — incidente inevitable en toda noble lid por la razon, la verdad y la justicia — sino la falta de esa serena dignidad, de ese sentido sobrio de propia inhibicion y propio dominio paa aceptar y sufrir el reves, de todo eso que es la mejor piedra de toque de la madurez politica y de las virtudes publicas en un regimen de caracter popular y democratico. Los hombres van y vienen, pasan con sus miserias y sus disputas en la interminable caravana del tiempo; las instituciones quedan, y eso es lo que importa salvar a toda costa por encima de las pasiones y caprichos transeuntes del momento. Se esta corte tiene, segun la Constitucion, facultad para conceder el remedio solictado, es de suponer que los recurridos acataran el fallo que se dicte, pues son hombres de orden y de ley, y seran los primeros en dar el ejemplo de cumplir los mandatos de la Constitucion, interpretados y aplicados por la judicatura; pero si — lo que para nosotros es imposible que ocurra — escudandose tras sus privilegios, llegaren al extremo de cometer desacato, que cada cual asuma su responsabilidad ante su conciencia, ante el pais y ante la historia. Esta Corte habra cumplido solamente consu deber, sin miedo y sin favor, y en la forma mejor que le haya sido dable hacerlo en la medida de sus luces y alcances. En esta jurisdiccion tenemos un precedente tipico, claro y terminante de orden coercitiva dirigida por el departamento judicial al departamento ejecutivo del gobierno. Nos referimos al asunto de Concepcion contraParedes (42 Jur. Fil., 630) en el cual se trataba de una solicitud de mandamiento de inhibicion ordenando al recurrido Secretario de Justicia de inhibicion ordenando al recurrido Secretario de Justicia que desistiera de poner en vigor las disposiciones de la Ley

No. 2941 que exigia a los jueces de primera instancia que echasen suertes cada cinco años para el cambio de distritos. Esta Corte declaro que la ley popularmente conocida por ley de la "loteria judicial" era anticonstitucional. Se concedio, por tanto, el mandamiento de prohibicion, haciendose definitivo el interdicto preliminar expedido. Solo nos queda por considerar el argumento deprimente, desalentador de que el caso que nos ocupa no tiene remedio ni bajo la Constitucion ni bajo las leyes ordinarias. A los recurrentes se les dice que no tienen mas que un recurso: esperar las elecciones y plantear directamente la cuestion ante el pueblo elector. Si los recurrentes tienen razon, el pueblo les reivindicara eleigiendoles o elevando a su partido al poder, repudiando, en cambio, a los recurridos o a su partido. algunas cosas se podrian decir acerca de este argumento. Se podria decir, por ejemplo, que el remedio no es expedito ni adecuado porque la mayoria de los recurridos han sido elegidos para un periodo de seis años, asi que no se les podra exigir ninguna responsabilidad por tan largo tiempo. Se podria decir tambien que en una eleccion politica entra muchos factores, y es posible que la cuestion que se discute hoy, con ser tan fervida y tan palpitante, quede, cuando llegue el caso, obscurecida por otros "issues" mas presionantes y decisvos. Tambien se podria decir que, independientemente de la justicia de su causa, un partido minoritario siempre lucha con desventaja contra el partido mayoritario. Pero, a nuestro juicio, la mejor contestacion al argumento es que no cabe concebir que los redactores de la Constitucion filipina hayan dejado en medio de nuestro sistema de gobierno un peligroso vacio en donde quedan paralizados los resortes de la Constitucion y de la ley, y el ciudadano queda inerme, importente frente a lo que el considera flagrante transgresion de sus derechos. Los redactores de la Constitucion conocian muy bien nuestro sistema de gobierno — sistema presidenecial. Sabian mauy bien que este no tiene la flexibilidad del tipo ingles — el parlamentario. En Inglaterra y en los paises que siguen su sistema hay una magnifica valvula de seguridad politica; cuando surge una grave crisis, de esas que sacuden los cimientos de la nacion, el parlamento se disuelve y se convocan elecciones generales para que el pueblo decida los grandes "issues" del dia. Asi se consuman verdaderas revoluciones, sin sangre, sin

violencia. El sistema presidencial no tiene esa valvula. El periodo que media de eleccion a eleccion es inflexible. Entre nosotros, por ejemplo, el periodo es de seis años para el Senado, y de cuatro años para la Camara de Representantes y los gobiernos provinciales y municipales. Solamente se celebran elecciones especiales para cubrir vacantes que ocurran entre unas elecciones generales y otras. Se comprendera facilmente que bajo un sistema asi es harto peligroso, es jugar con fuego el posibilitar situaciones donde el individuo y el pueblo no pueden buscar el amparo de la Constitucion y de las leyes, bajo procesos ordenandos y expeditos, para proteger sus derechos. En resumen, direcmos lo siguiente: Tenemos una Constitucion escrita que representa el genio politico y socio de nuestro pueblo, que encarna nuestra historia, nuestras tradiciones, nuestra civilizacion y cultura influida por las mas grandes civilizaciones y culturas conocidas en el mundo. Esa Constitucion se escribio no solo para el Commonwealth, sino para la Republica: esta hecha para perdurar y sobrevivir a todas las crisis y vicisitudes. Sobrevivio casi milagrosamente a la peor de estas — la ocupacion japonesa. Es un formidable instrumento de libertad y democracia. Su modelo mas cercano es la Constitucion americana, pero en ciertos respectos es una superacion del modelo. Uno de sus aspectos mas originales y progresivos es indudablemente la creacion del Tribunal Electoral. Esta reforma constituye el valiente reconocimiento de una dura realidad, al propio tiempo que un energico remedio. Pero en las constituciones la letra no es el todo, ni siquiera lo principal. Lo imporatante, lo fundamental es el espiritu, el caracter del pueblo; son las practicas, las costumbres, los habitos politicos que vivifican e implementan la letra esrita que es inorganica e inerte. Exceptuando el parentesis tragico de la guerraa, nuestra Constitucion lleva unos ocho años de vigencia. En ese breve periodo de tiempo se ha formado en su derredor una limitada jurisprudencia, encaminada a robustecerla y expandirla como intrumento de libertad y democracia. Los casos de Angara y Planas, tan copiosamente comentados en esta modesta disidencia, son tipicamente representativos de esa magnifica tendencia. La custion ahoraa es si esta ha de poder continuar sin estorbos, sin trabas, o ha de sufrir

un serio reves en su marcha ascendente. Nuestro sentir es que se debe permitir el ordenado desenvolvimiento de la Constitucion en toda su anchura, bajo los amplisimos auspicios de la libertad, en terminos y perspectivas que hagan de ella la formidable herramienta de democracia y justicia que debe ser. ¡ Ojala el resultado del presente asunto no sea parte para estorbar ese desenvolvimiento!

x-----------------------x IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner, x-----------------------x JOHN G. PERALTA, Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC). Respondent. x - - - - - - - - - - - - - - - - - - - - - - - -x PETER IRVING CORVERA;

ARTURO M. DE CASTRO, Petitioner,

G. R. No. 191002

ALFONSO V. TAN, JR.;

- versus JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO, Respondents . x-----------------------x JAIME N. SORIANO, Petitioner,

NATIONAL UNION OF PEOPLE’S LAWYERS; MARLOU B. UBANO;

G.R. No. 191032

- versus JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, - versus JUDICIAL AND BAR COUNCIL (JBC), Respondent.

CHRISTIAN ROBERT S. LIM;

INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER;

G.R. No. 191057

BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN

A.M. No. 10-2-5SC

G.R. No. 191149

FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBINGJAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON. Intervenors. x - - - - - - - - - - - - - - - - - - - - - - - -x ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor–Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor–Eastern Visayas), Petitioners,

G.R. No. 191342

- versus -

JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x PHILIPPINE BAR ASSOCIATION, INC., Petitioner, G.R. No. 191420 Present:

- versus -

JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ.

Promulgated: March 17, 2010 x----------------------------------------------------------------------------------------x DECISION BERSAMIN, J.:

presidential elections on May 10, 2010. Even before the

Petitioners Arturo M. De Castro and John G.

event actually happens, it is giving rise to many legal

Peralta respectively commenced G.R. No. 191002[1] and

dilemmas. May the incumbent President appoint his

G.R.

successor, considering that Section 15, Article VII

for certiorari andmandamus, praying that the JBC be

(Executive Department) of the Constitution prohibits the

compelled to submit to the incumbent President the list of

President or Acting President from making appointments

at least three nominees for the position of the next Chief

within two months immediately before the next presidential

Justice.

191149[2] as

No.

special

civil

actions

elections and up to the end of his term, except temporary appointments to executive positions when continued

In G.R. No. 191032,[3] Jaime N. Soriano, via his

vacancies therein will prejudice public service or endanger

petition for prohibition, proposes to prevent the JBC from

public safety? What is the relevance of Section 4 (1),

conducting

Article VIII (Judicial Department) of the Constitution, which

proceedings for the position of Chief Justice.

its

search,

selection

and

nomination

provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, to the

In G.R. No. 191057, a special civil action

matter of the appointment of his successor? May the

for mandamus,[4] the Philippine Constitution Association

Judicial and Bar Council (JBC) resume the process of

(PHILCONSA) wants the JBC to submit its list of nominees

screening the candidates nominated or being considered

for the position of Chief Justice to be vacated by Chief

to succeed Chief Justice Puno, and submit the list of

Justice Puno upon his retirement on May 17, 2010,

nominees to the incumbent President even during the

because the incumbent President is not covered by the

period of the prohibition under Section 15, Article VII?

prohibition that applies only to appointments in the

Doesmandamus lie to compel the submission of the

Executive Department.

shortlist of nominees by the JBC? In Administrative Matter No. 10-2-5-SC,[5] petitioner

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming

Precís of the Consolidated Cases

Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on

whether Section 15, Article VII applies to appointments to

respectively (Valenzuela),[7] by which the Court held that

acted with grave abuse of discretion in deferring the

the Judiciary.

Section 15, Article VII prohibited the exercise by the

submission of the list of nominees to the President; and

President of the power to appoint to judicial positions

that a “final and definitive resolution of the constitutional

during the period therein fixed.

questions raised above would diffuse (sic) the tension in

[6]

In G.R. No. 191342, which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners

the legal community that would go a long way to keep and maintain stability in the judiciary and the political system.”[9]

Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated

In G.R. No. 191002, De Castro submits that the

Bar of the Philippines (IBP) Governors for Southern Luzon

conflicting opinions on the issue expressed by legal

and Eastern Visayas, respectively, want to enjoin and

luminaries – one side holds that the incumbent President

In G.R. No. 191032, Soriano offers the view that

restrain the JBC from submitting a list of nominees for the

is prohibited from making appointments within two months

the JBC committed a grave abuse of discretion amounting

position of Chief Justice to the President for appointment

immediately before the coming presidential elections and

to lack or excess of its jurisdiction when it resolved

during the period provided for in Section 15, Article VII.

until the end of her term of office as President on June 30,

unanimously on January 18, 2010 to open the search,

2010, while the other insists that the prohibition applies

nomination, and selection process for the position of Chief

All the petitions now before the Court pose as the

only to appointments to executive positions that may

Justice to succeed Chief Justice Puno, because the

principal legal question whether the incumbent President

influence the election and, anyway, paramount national

appointing authority for the position of Chief Justice is the

can appoint the successor of Chief Justice Puno upon his

interest justifies the appointment of a Chief Justice during

Supreme Court itself, the President’s authority being

retirement. That question is undoubtedly impressed with

the election ban – has impelled the JBC to defer the

limited to the appointment of the Members of the Supreme

transcendental importance to the Nation, because the

decision to whom to send its list of at least three nominees,

Court. Hence, the JBC should not intervene in the process,

appointment of the Chief Justice is any President’s most

whether

unless a nominee is not yet a Member of the Supreme

important appointment.

successor.[8] He opines that the JBC is thereby arrogating

to

the

incumbent

President

or

to

her

Court.[10]

unto itself “the judicial function that is not conferred upon it Re

by the Constitution,” which has limited it to the task of

Appointments Dated March 30, 1998 of Hon. Mateo A.

recommending appointees to the Judiciary, but has not

For its part, PHILCONSA observes in its petition

Valenzuela and Hon. Placido B. Vallarta as Judges of the

empowered it to “finally resolve constitutional questions,

in G.R. No. 191057 that “unorthodox and exceptional

Regional Trial Court of Branch 62, Bago City and of

which is the power vested only in the Supreme Court

circumstances spawned by the discordant interpretations,

Branch

under the Constitution.” As such, he contends that the JBC

due perhaps to a perfunctory understanding, of Sec. 15,

A

precedent

24,

frequently

cited

Cabanatuan

is In

City,

Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a frenzied inflammatory legal

appoint a Chief Justice even during the election ban under Section 15, Article VII of the Constitution.

[13]

the occurrence thereof” from a “list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.”

debate on the constitutional provisions mentioned that has divided the bench and the bar and the general public as

The petitioners in G.R. No. 191342 insist that

well, because of its dimensional impact to the nation and

there is an actual controversy, considering that the “JBC

On December 22, 2009, Congressman Matias V.

the people,” thereby fashioning “transcendental questions

has initiated the process of receiving applications for the

Defensor, an ex officio member of the JBC, addressed a

or issues affecting the JBC’s proper exercise of its

position of Chief Justice and has in fact begun the

letter to the JBC, requesting that the process for

“principal function of recommending appointees to the

evaluation process for the applications to the position,” and

nominations to the office of the Chief Justice be

Judiciary” by submitting only to the President (not to the

“is perilously near completing the nomination process and

commenced immediately.

next President) “a list of at least three nominees prepared

coming up with a list of nominees for submission to the

by the Judicial and Bar Council for every vacancy” from

President, entering into the period of the ban on midnight

which the members of the Supreme Court and judges of

appointments on March 10, 2010,” which “only highlights

the lower courts may be appointed.”[11] PHILCONSA

the pressing and compelling need for a writ of prohibition

further believes and submits that now is the time to revisit

to enjoin such alleged ministerial function of submitting the

and review Valenzuela, the “strange and exotic Decision of

list, especially if it will be cone within the period of the ban

the Court en banc.”

on midnight appointments.”[14]

[12]

Peralta states in his petition in G.R. No. 191149

Antecedents

that mandamus can compel the JBC “to immediately transmit to the President, within a reasonable time, its

These

cases

trace

their

genesis

has

arisen

from

the

that

to

the

nomination list for the position of chief justice upon the

controversy

mandatory retirement of Chief Justice Reynato S. Puno, in

compulsory retirement of Chief Justice Puno on May 17,

compliance with its mandated duty under the Constitution”

2010, or seven days after the presidential election. Under

in the event that the Court resolves that the President can

Section

4(1),

in

relation

to

Section

forthcoming

9,

Article

VIII, that “vacancy shall be filled within ninety days from

In

its January

18,

2010 meeting en

therefore, the JBC passed a resolution,

[15]

banc,

which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S. Puno. It will publish the opening of the position for applications or recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the shortlist of candidates. As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and

jurisprudence, the JBC welcomes and will consider all views on the matter. 18 January 2010.

The announcement was published on January

Justice Antonio T. Carpio and Associate Justice Conchita

20, 2010 in the Philippine Daily Inquirer and The Philippine

Carpio Morales.[19] Declining their nominations were Atty.

Star.[17]

Henry Villarica (via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and

(sgd.) MA. LUISA D. VILLARAMA Clerk of Court & Ex-Officio Secretary Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement dated January 20, 2010,

[16]

viz: The Judicial and Bar Council (JBC) announces the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO. Applications or recommendations for this position must be submitted not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:

Conformably with its existing practice, the JBC

Atty. Gregorio M. Batiller, Jr. (via telephone conversation

“automatically considered” for the position of Chief Justice

with the Executive Officer of the JBC onFebruary 8,

the five most senior of the Associate Justices of the Court,

2010).[20]

namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita

The JBC excluded from consideration former RTC

Carpio Morales; Associate Justice Presbitero J. Velasco,

Judge Florentino Floro (for failure to meet the standards

Jr.; and Associate Justice Antonio Eduardo B. Nachura.

set by the JBC rules); and Special Prosecutor Dennis Villa-

However, the last two declined their nomination through

Ignacio of the Office of the Ombudsman (due to cases

letters dated January 18, 2010 and January 25, 2010,

pending in the Office of the Ombudsman).[21]

respectively.[18] In its meeting of February 8, 2010, the JBC resolved Others either applied or were nominated. Victor

to proceed to the next step of announcing the names of

Fernandez, the retired Deputy Ombudsman for Luzon,

the following candidates to invite the public to file their

applied, but later formally withdrew his name from

sworn complaint, written report, or opposition, if any, not

consideration through his letter dated February 8, 2010.

later than February 22, 2010, to wit: Associate Justice

Candidates

nominations without

Carpio, Associate Justice Corona, Associate Justice

conditions were Associate Justice Renato C. Corona;

Carpio Morales, Associate Justice Leonardo-De Castro,

Associate

Associate Justice Brion, and Associate Justice Sandoval.

who

Justice

accepted

Teresita

their

J.

Leonardo-De

Castro;

Associate Justice Arturo D. Brion; and Associate Justice

The announcement came

out

in

the Philippine

Daily

Edilberto G. Sandoval (Sandiganbayan). Candidates who

Inquirer and The Philippine Star issues of February 13,

accepted their nominations with conditions were Associate

2010.[22]

ruling from the Court, the integrity of the process and the Issues

credibility of whoever is appointed to the position of Chief Justice, may irreparably be impaired.”[23]

Although it has already begun the process for the filling of the position of Chief Justice Puno in

Accordingly, we reframe the issues as submitted by

accordance with its rules, the JBC is not yet decided on

each petitioner in the order of the chronological filing of

when to submit to the President its list of nominees for the

their petitions.

position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs upon G.R. No. 191002 the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an administrative matter “to avoid any possible polemics concerning the matter,” but he opines that the polemics leading to Valenzuela “would be miniscule [sic] compared to the “polemics” that have now erupted in regard to the current controversy,” and that unless “put to a halt, and this may only be achieved by a

a. Does the JBC have the power and authority to resolve the constitutional question of whether the incumbent President can appoint a Chief Justice during the election ban period? b. Does the incumbent President have the power and authority to appoint during the election ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on his retirement on May 17, 2010?

Section 15, Article VII of the Constitution applicable only to positions in the Executive Department? b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to members of the Judiciary, may such appointments be excepted because they are impressed with public interest or are demanded by the exigencies of public service, thereby justifying these appointments during the period of prohibition? c. Does the JBC have the authority to decide whether or not to include and submit the names of nominees who manifested interest to be nominated for the position of Chief Justice on the understanding that his/her nomination will be submitted to the next President in view of the prohibition against presidential appointments from March 11, 2010 until June 30, 2010? A. M. No. 10-2-5-SC a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the Judiciary under Section 9, Article VIII of the Constitution?

a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?

b. May President Gloria MacapagalArroyo make appointments to the Judiciary after March 10, 2010, including that for the position of Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191057

G.R. No. 191149

a. Is the constitutional prohibition against appointment under

a. Does the JBC have the discretion to withhold the submission of the

G.R. No. 191032

short list to President Gloria Macapagal-Arroyo? G.R. No. 191342 a.

b.

Does the JBC have the authority to submit the list of nominees to the incumbent President without committing a grave violation of the Constitution and jurisprudence prohibiting the incumbent President from making midnight appointments two months immediately preceding the next presidential elections until the end of her term? Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBC’s illegal composition allowing each member from the Senate and the House of Representatives to have one vote each?

On February 16, 2010, the Court directed the

candidates, “including the interview of the constitutional

principal function under the Constitution to recommend

experts, as may be needed.”

appointees in the Judiciary; (b) the JBC’s function to

[24]

[25]

It stated:

recommend is a “continuing process,” which does not Likewise, the JBC has yet to take a position on when to submit the shortlist to the proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution, which provides that vacancy in the Supreme Court shall be filled within ninety (90) days from the occurrence thereof, Section 15, Article VII of the Constitution concerning the ban on Presidential appointments “two (2) months immediately before the next presidential elections and up to the end of his term” and Section 261 (g), Article XXII of the Omnibus Election Code of the Philippines. 12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will be guided by its decision in these consolidated Petitions and Administrative Matter.

JBC and the Office of the Solicitor General (OSG) to

because the goal is “to submit the list of nominees to Malacañang on the very day the vacancy arises”;[26] the JBC was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice Puno;[27] (c) petitioner Soriano’s theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice,

is

incorrect,

and

proceeds

from

his

misinterpretation of the phrase “members of the Supreme Court” found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to

comment on the consolidated petitions, except that filed On February 26, 2010, the OSG also submitted in G.R. No. 191342. its comment, essentially stating that the incumbent President can appoint the successor of Chief Justice Puno On February 26, 2010, the JBC submitted its upon his retirement by May 17, 2010. comment, reporting therein that the next stage of the

compel the JBC to submit the list of nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified, and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as such, the JBC, the

process for the selection of the nominees for the position The OSG insists that: (a) a writ of prohibition of Chief Justice would be the public interview of the cannot issue to prevent the JBC from performing its candidates and the preparation of the short list of

begin with each vacancy or end with each nomination,

nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no

discretion to withhold the list from the President; [29] and (e)

also incorporated in Article VIII ample restrictions or

a writ of mandamus cannot issue to compel the JBC to

limitations on the President’s power to appoint members of

undeniably

include or exclude particular candidates as nominees,

the Supreme Court to ensure its independence from

President to appoint the next Chief Justice, to wit: (a) a

considering that there is no imperative duty on its part to

“political vicissitudes” and its “insulation from political

deluge of cases involving sensitive political issues is “quite

include in or exclude from the list particular individuals, but,

pressures,”[33] such as stringent qualifications for the

expected”;[36] (b) the Court acts as the Presidential

on the contrary, the JBC’s determination of who it

positions, the establishment of the JBC, the specified

Electoral Tribunal (PET), which, sitting en banc, is the sole

nominates

period within which the President shall appoint a Supreme

judge of all contests relating to the election, returns, and

Court Justice.

qualifications of the President and Vice President and, as

to the President

discretionary duty.

is

an

exercise

of

a

[30]

Lastly, the OSG urges that there are now compelling

reasons

for

the

incumbent

such, has “the power to correct manifest errors on the The OSG contends that the incumbent President

that

statement of votes (SOV) and certificates of canvass

may appoint the next Chief Justice, because the

although Valenzuela involved the appointment of RTC

(COC)”;[37] (c) if history has shown that during ordinary

prohibition under Section 15, Article VII of the Constitution

Judges, the situation now refers to the appointment of the

times the Chief Justice was appointed immediately upon

does not apply to appointments in the Supreme Court. It

next Chief Justice to which the prohibition does not apply;

the occurrence of the vacancy, from the time of the

argues that any vacancy in the Supreme Court must be

that, at any rate, Valenzuela even recognized that there

effectivity of the Constitution, there is now even more

filled within 90 days from its occurrence, pursuant to

might be “the imperative need for an appointment during

reason to appoint the next Chief Justice immediately upon

that in their

the period of the ban,” like when the membership of the

the retirement of Chief Justice Puno;[38] and (d) should the

deliberations on the mandatory period for the appointment

Supreme Court should be “so reduced that it will have no

next Chief Justice come from among the incumbent

of Supreme Court Justices, the framers neither mentioned

quorum, or should the voting on a particular important

Associate Justices of the Supreme Court, thereby causing

nor referred to the ban against midnight appointments, or

question

be

a vacancy, it also becomes incumbent upon the JBC to

and that Valenzuela also recognized that the

start the selection process for the filling up of the vacancy

Section 4(1), Article VIII of the Constitution;

its effects on such period, or vice versa;

[31]

[32]

that had the

The

divided”;

[34]

requiring

OSG

expeditious

posits

resolution

framers intended the prohibition to apply to Supreme Court

filling of vacancies in the Judiciary is undoubtedly in the

appointments, they could have easily expressly stated so

public interest, most especially if there is any compelling

in the Constitution, which explains why the prohibition

reason to justify the making of the appointments during the

found in Article VII (Executive Department) was not written

period of the prohibition.[35]

in Article VIII (Judicial Department); and that the framers

in accordance with the constitutional mandate.[39]

On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:

Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pagasa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera);[40] (b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim (Lim); (c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan); (d)

(e)

(f)

(g)

The comment/opposition-inintervention dated March 1, 2010 of the National Union of People’s Lawyers (NUPL); The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the PhilippinesDavao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-inintervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang

(i)

(j)

The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and The consolidated comment/opposition-inintervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena KasilagVillanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuela recognizes

the

possibility

that

the

President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause

Intervenors

Tan, WTLOP, BAYAN et

al., Corvera, epic damage or absolute disruption or paralysis in the

IBP Davao del Sur, and NUPL take the position that De Castro’s petition was bereft of any basis, because under

operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by

the incumbent President, the Court is allowed to sit and

more a submission of such list, before a vacancy occurs is

adjudge en banc or in divisions of three, five or seven

Intervenors Ubano, Boiser, NUPL, Corvera, and

members at its discretion; that a full membership of the

Lim maintain that the Omnibus Election Code penalizes as

appointment by the incumbent President of the next Chief

Court is not necessary; that petitioner De Castro’s fears

an election offense the act of any government official who

Justice will be unconstitutional; and that no list of

are unfounded and baseless, being based on a mere

appoints, promotes, or gives any increase in salary or

nominees can be submitted by the JBC if there is no

possibility, the occurrence of which is entirely unsure; that

remuneration or privilege to any government official or

vacancy.

it is not in the national interest to have a Chief Justice

employee during the period of 45 days before a regular

whose appointment is unconstitutional and, therefore, void;

election; that the provision covers all appointing heads,

and that such a situation will create a crisis in the judicial

officials, and officers of a government office, agency or

15, Article VII makes no distinction between the kinds of

system and will worsen an already vulnerable political

instrumentality, including the President; that for the

appointments made by the President; and that the Court,

situation.

incumbent President to appoint the next Chief Justice

inValenzuela, ruled that the appointments by the President

upon the retirement of Chief Justice Puno, or during the

of the two judges during the prohibition period were void.

ice is imperative for the stability of the judicial system and the political situation in the country when the electionrelated questions reach the Court as false, because there is an existing law on filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law, but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this rule of succession has been repeatedly observed and has become a part of its tradition.

period

of

the

ban

under

the Omnibus

glaringly

premature;

that

the

proposed

All the intervenors-oppositors submit

that

advance

Section

Election

Code, constitutes an election offense; that even an

Intervenor WTLOP posits that Section 15, Article

appointment of the next Chief Justice prior to the election

VII of the 1987 Constitution does not apply only to the

ban is fundamentally invalid and without effect because

appointments in the Executive Department, but also to

there can be no appointment until a vacancy occurs; and

judicial appointments, contrary to the submission of

that the vacancy for the position can occur only by May 17,

PHILCONSA; that Section 15 does not distinguish; and

2010.

that Valenzuela already interpreted the prohibition as applicable to judicial appointments. Intervenor Boiser adds that De Castro’s prayer

to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much

Intervenor WTLOP further posits that petitioner Soriano’s contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme

Court, is utterly baseless, because the Chief Justice is also

Chief Justice during the period of prohibition; that even if

nominees to the President by the JBC is a matter of right

a Member of the Supreme Court as contemplated under

the JBC has already come up with a short list, it still has to

under law.

Section 9, Article VIII; and that, at any rate, the term

bow to the strict limitations under Section 15, Article VII;

“members” was interpreted in Vargas v. Rillaroza (G.R.

that should the JBC defer submission of the list, it is not

The main question presented in all the filings

No. L-1612, February 26, 1948) to refer to the Chief

arrogating unto itself a judicial function, but simply

herein – because it involves two seemingly conflicting

Justice and the Associate Justices of the Supreme Court;

respecting the clear mandate of the Constitution; and that

provisions of the Constitution – imperatively demands the

that PHILCONSA’s prayer that the Court pass a resolution

the application of the general rule in Section 15, Article

attention and resolution of this Court, the only authority

declaring that persons who manifest their interest as

VII to the Judiciary does not violate the principle of

that can resolve the question definitively and finally. The

nominees, but with conditions, shall not be considered

separation of powers, because said provision is an

imperative demand rests on the ever-present need, first, to

nominees by the JBC is diametrically opposed to the

exception.

safeguard the independence, reputation, and integrity of

arguments in the body of its petition; that such glaring

the entire Judiciary, particularly this Court, an institution

inconsistency between the allegations in the body and the

Oppositors NUPL, Corvera, Lim and BAYAN et

that has been unnecessarily dragged into the harsh

of

al. state that the JBC’s act of nominating appointees to

polemics brought on by the controversy; second, to settle

PHILCONSA’s petition; that the role of the JBC cannot be

the Supreme Court is purely ministerial and does not

once and for all the doubt about an outgoing President’s

separated from the constitutional prohibition on the

involve the exercise of judgment; that there can be no

power to appoint to the Judiciary within the long period

President; and that the Court must direct the JBC to follow

default on the part of the JBC in submitting the list of

starting two months before the presidential elections until

the rule of law, that is, to submit the list of nominees only

nominees to the President, considering that the call for

the end of the presidential term; and third, to set a definite

to the next duly elected President after the period of the

applications only begins from the occurrence of the

guideline for the JBC to follow in the discharge of its

constitutional ban against midnight appointments has

vacancy

primary office of screening and nominating qualified

expired.

commencement of the process of screening of applicants

relief

prayed

for

highlights

the

lack

of

merit

in

the

Supreme

Court;

and

that

the

persons for appointment to the Judiciary.

to fill the vacancy in the office of the Chief Justice only Oppositor IBP Davao del Sur opines that the

begins from the retirement on May 17, 2010, for, prior to

JBC – because it is neither a judicial nor a quasi-judicial

this date, there is no definite legal basis for any party to

body – has no duty under the Constitution to resolve the

claim that the submission or non-submission of the list of

question of whether the incumbent President can appoint a

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

Black appearance

in

defines locus a

court

of

standi as justice

“a on

right a

of

given

invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[44]

“transcendental importance.” Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51]

In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues raised

question.”[41] In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]

It is true that as early as in 1937, in People v.

by the petition due to their “far-reaching implications,” even

test for

if the petitioner had no personality to file the suit. The

determining whether a petitioner in a public action

liberal approach of Aquino v. Commission on Elections has

had locus standi.There, the Court held that the person who

been

would assail the validity of a statute must have “a personal

several notable cases, permitting ordinary citizens, legis

and substantial interest in the case such that he has

lators, and civic

sustained,

organizations

Vera,[45] the

Court

or

will

adopted

the direct

sustain

direct

injury

injury

as

a

adopted

to

bring

their

in

suits

involving

the

result.” Vera was followed in Custodio v. President of the

constitutionality or validity of laws, regulations, and

Senate,[46] Manila Race Horse Trainers’ Association v. De

rulings.[53]

la Fuente,[47] Anti-Chinese League of the Philippines v. The question on legal standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”[43] Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is

However, the assertion of a public right as a

Felix,[48] and Pascual v. Secretary of Public Works.[49] predicate

for

challenging

a

supposedly

illegal

or

Yet, the Court has also held that the requirement

unconstitutional executive or legislative action rests on the

of locus standi, being a mere procedural technicality, can

theory that the petitioner represents the public in general.

be waived by the Court in the exercise of its discretion. For

Although such petitioner may not be as adversely affected

instance, in 1949, in Araneta v. Dinglasan,[50] the Court

by the action complained against as are others, it is

liberalized

enough that he sufficiently demonstrates in his petition that

the

approach

when

the

cases

had

he is entitled to protection or relief from the Court in the vindication of a public right.

Faculty of the College of Law of the University of the Petitioners De Castro (G.R. No. 191002),

Philippines.

Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) Quite often, as here, the petitioner in a public

all assert their right as citizens filing their petitions on

The petitioners in G.R. No. 191342 are the

action sues as a citizen or taxpayer to gain locus standi.

behalf of the public who are directly affected by the issue

Governors of the Integrated Bar of the Philippines (IBP)

That is not surprising, for even if the issue may appear to

of the appointment of the next Chief Justice. De Castro

for Southern Luzon and Eastern Visayas. They allege that

concern only the public in general, such capacities

and Soriano further claim standing as taxpayers, with

they have the legal standing to enjoin the submission of

nonetheless equip the petitioner with adequate interest to

Soriano averring that he is affected by the continuing

the list of nominees by the JBC to the President, for “[a]n

sue. In David v. Macapagal-Arroyo,[54] the Court aptly

proceedings in the JBC, which involve “unnecessary, if not,

adjudication of the proper interpretation and application of

explains why:

illegal disbursement of public funds.”

the constitutional ban on midnight appointments with

[59]

regard to respondent JBC’s function in submitting the list of Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:[56] “In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan[57] held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.”[58]

PHILCONSA alleges itself to be a non-stock,

nominees is well within the concern of petitioners, who are

non-profit organization existing under the law for the

duty bound to ensure that obedience and respect for the

purpose of defending, protecting, and preserving the

Constitution is upheld, most especially by government

Constitution and promoting its growth and flowering. It also

offices, such as respondent JBC, who are specifically

alleges that the Court has recognized its legal standing to

tasked to perform crucial functions in the whole scheme of

file cases on constitutional issues in several cases.[60]

our democratic institution.” They further allege that, reposed in them as members of the Bar, is a clear legal

In A.M. No. 10-2-5-SC, Mendoza states that he

interest in the process of selecting the members of the

is a citizen of the Philippines, a member of the Philippine

Supreme Court, and in the selection of the Chief Justice,

Bar engaged in the active practice of law, and a former

considering that the person appointed becomes a member

Solicitor General, former Minister of Justice, former

of the body that has constitutional supervision and

Member of the Interim Batasang Pambansa and the

authority over them and other members of the legal

Regular Batasang Pambansa, and former member of the

profession.[61]

The Court rules that the petitioners have each

of an obstacle more technical than otherwise. In Agan, Jr.

demonstrated adequate interest in the outcome of the

v.Philippine International Air Terminals Co., Inc.,

controversy as to vest them with the requisite locus

pointed

[63]

Intervenor Tan raises the lack of any actual

we

justiciable controversy that is ripe for judicial determination,

in

pointing out that petitioner De Castro has not even shown

standi. The issues before us are of transcendental

constitutional law because in some cases, suits are not

that the JBC has already completed its selection process

importance to the people as a whole, and to the petitioners

brought by parties who have been personally injured by

and is now ready to submit the list to the incumbent

in particular. Indeed, the issues affect everyone (including

the operation of a law or any other government act but by

President; and that petitioner De Castro is merely

the petitioners), regardless of one’s personal interest in

concerned citizens, taxpayers or voters who actually sue in

presenting a hypothetical scenario that is clearly not

life, because they concern that great doubt about the

the public interest.” But even if, strictly speaking, the

sufficient for the Court to exercise its power of judicial

authority of the incumbent President to appoint not only

petitioners “are not covered by the definition, it is still within

review.

the successor of the retiring incumbent Chief Justice, but

the wide discretion of the Court to waive the requirement

also others who may serve in the Judiciary, which already

and so remove the impediment to its addressing and

suffers from a far too great number of vacancies in the

resolving the serious constitutional questions raised.”

out:

“Standing

is

a

peculiar

concept

[64]

ranks of trial judges throughout the country.

Intervenors Corvera and Lim separately opine that De Castro’s petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for

Justiciability

the Court to exercise its power of judicial review.

In any event, the Court retains the broad discretion to waive the requirement of legal standing in

Intervenor NUPL maintains that there is no

Intervenor BAYAN et al. contend that the

favor of any petitioner when the matter involved has

actual case or controversy that is appropriate or ripe for

petitioners are seeking a mere advisory opinion on what

transcendental

adjudication, considering that although the selection

the JBC and the President should do, and are not invoking

process commenced by the JBC is going on, there is yet

any issues that are justiciable in nature.

importance,

or otherwise requires

a

liberalization of the requirement.[62]

no final list of nominees; hence, there is no imminent Yet, if any doubt still lingers about the locus

controversy as to whether such list must be submitted to

Intervenors Bello et al. submit that there exist no

standi of any petitioner, we dispel the doubt now in order

the incumbent President, or reserved for submission to the

conflict of legal rights and no assertion of opposite legal

to remove any obstacle or obstruction to the resolution of

incoming President.

claims in any of the petitions; that PHILCONSA does not

the essential issue squarely presented herein. We are not

allege any action taken by the JBC, but simply avers that

to shirk from discharging our solemn duty by reason alone

the conditional manifestations of two Members of the

Court, accented by the divided opinions and interpretations

requires the President to appoint one from the short list to

of legal experts, or associations of lawyers and law

We hold that the petitions set forth an actual

fill the vacancy in the Supreme Court (be it the Chief

students on the issues published in the daily newspapers

case or controversy that is ripe for judicial determination.

Justice or an Associate Justice) within 90 days from the

are “matters of paramount and transcendental importance

The reality is that the JBC already commenced the

occurrence of the vacancy.

to the bench, bar and general public”; that PHILCONSA

proceedings for the selection of the nominees to be

fails not only to cite any legal duty or allege any failure to

included in a short list to be submitted to the President for

The ripeness of the controversy for judicial

perform the duty, but also to indicate what specific action

consideration of which of them will succeed Chief Justice

determination may not be doubted. The challenges to the

should be done by the JBC; that Mendoza does not even

Puno as the next Chief Justice. Although the position is not

authority of the JBC to open the process of nomination and

attempt to portray the matter as a controversy or conflict of

yet vacant, the fact that the JBC began the process of

to continue the process until the submission of the list of

rights, but, instead, prays that the Court should “rule for the

nomination pursuant to its rules and practices, although it

nominees; the insistence of some of the petitioners to

guidance of” the JBC; that the fact that the Court

has yet to decide whether to submit the list of nominees to

compel the JBC through mandamus to submit the short list

supervises the JBC does not automatically imply that the

the incumbent outgoing President or to the next President,

to the incumbent President; the counter-insistence of the

Court can rule on the issues presented in the Mendoza

makes the situation ripe for judicial determination, because

intervenors to prohibit the JBC from submitting the short

petition, because supervision involves oversight, which

the next steps are the public interview of the candidates,

list to the incumbent President on the ground that said list

means that the subordinate officer or body must first act,

the preparation of the short list of candidates, and the

should be submitted instead to the next President; the

and if such action is not in accordance with prescribed

“interview of constitutional experts, as may be needed.”

strong position that the incumbent President is already

rules, then, and only then, may the person exercising

prohibited under Section 15, Article VII from making any

oversight order the action to be redone to conform to the

A part of the question to be reviewed by the

appointments, including those to the Judiciary, starting on

prescribed rules; that the Mendoza petition does not allege

Court is whether the JBC properly initiated the process,

May 10, 2010 until June 30, 2010; and the contrary

that the JBC has performed a specific act susceptible to

there being an insistence from some of the oppositors-

position that the incumbent President is not so prohibited

correction for being illegal or unconstitutional; and that the

intervenors that the JBC could only do so once the

are only some of the real issues for determination. All such

Mendoza petition asks the Court to issue an advisory

vacancy has occurred (that is, after May 17, 2010).

issues

ruling, not to exercise its power of supervision to correct a

Another part is, of course, whether the JBC may resume

considering that for some the short list must be

wrong act by the JBC, but to declare the state of the law in

its process until the short list is prepared, in view of the

submitted before the vacancy actually occurs by May 17,

the absence of an actual case or controversy.

provision of Section 4(1), Article VIII, which unqualifiedly

2010. The outcome will not be an abstraction, or a merely

establish

the

ripeness

of

the

controversy,

hypothetical exercise. The resolution of the controversy will surely settle – with finality – the nagging questions that are

The first, Section 15, Article VII (Executive Department), provides:

The Court agrees with the submission.

preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a

the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues.

[65]

Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the

framers, but purposely made to reflect their intention and

contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the

not in doubt, for only legal issues remain.

I Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary

time to meticulously drafting, styling, and arranging the

manifest their vision of what the Constitution should Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

Herein, the facts are

Substantive Merits

Constitutional Commission reveal that the framers devoted

Constitution were not arbitrarily or whimsically done by the The other, Section 4 (1), Article VIII (Judicial Department), states:

constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of

First. The records of the deliberations of the

Legislative (Article VI), the Executive (Article VII), and the In the consolidated petitions, the petitioners, with

Judicial Departments (Article VIII). The arrangement was a

the exception of Soriano, Tolentino and Inting, submit that

true recognition of the principle of separation of powers

the incumbent President can appoint the successor of

that underlies the political structure, as Constitutional

Chief Justice Puno upon his retirement on May 17, 2010,

Commissioner Adolfo S. Azcuna (later a worthy member of

on the ground that the prohibition against presidential

the Court) explained in his sponsorship speech:

appointments under Section 15, Article VII does not extend Two constitutional provisions are seemingly in conflict.

to appointments in the Judiciary.

We have in the political part of this Constitution opted for the separation of powers in government because we believe that the only way

to protect freedom and liberty is to separate and divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the legislative, executive and judicial departments.[66]

Had the framers intended to extend the

the prohibition not being intended to apply to the

prohibition contained in Section 15, Article VII to the

appointments

to

the

Judiciary,

which

appointment of Members of the Supreme Court, they could

confirmation Valenzuela even expressly mentioned, should

have explicitly done so. They could not have ignored the

prevail.

meticulous ordering of the provisions. They would As can be seen, Article VII is devoted to the

have easily and surely written the prohibition made explicit

Executive Department, and, among others, it lists the

in Section 15, Article VII as being equally applicable to the

powers vested by the Constitution in the President. The

appointment of Members of the Supreme Court in Article

presidential power of appointment is dealt with in Sections

VIII itself, most likely in Section 4 (1), Article VIII. That such

14, 15 and 16 of the Article.

specification was not done only reveals that the prohibition against

Article

VIII

is

dedicated

to

the

Judicial

the

appointments

President within

or

two

Acting months

President before

making

the

next

Department and defines the duties and qualifications of

presidential elections and up to the end of the President’s

Members of the Supreme Court, among others. Section

or Acting President’s term does not refer to the Members

4(1) and Section 9 of this Article are the provisions

of the Supreme Court.

specifically providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only be made by the President upon the submission of a list of at least

Although Valenzuela[67] came to hold that the

three nominees by the JBC; Section 4(1) of the Article

prohibition covered even judicial appointments, it cannot

mandates the President to fill the vacancy within90 days

be disputed that the Valenzuela dictum did not firmly rest

from the occurrence of the vacancy.

on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz: V . Intent of Constitutional Commission

the

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an elevenmember Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy “must be filled within two months from the date that the vacancy occurs.” His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court’s membership) of the same mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.” He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was

approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any “vacancy shall be filled within ninety days” (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that “a President or Acting President shall not make appointments…” The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: “WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a “uniform rule” for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power “two months immediately before the next presidential elections up to the end of his term” - was approved without discussion.[68]

MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30 years, seldom has the Court had a complete complement.[70]

However, the reference to the records of the Constitutional Commission did not advance or support the result in Valenzuela. Far to the contrary, the records

Moreover, the usage in Section 4(1), Article VIII

disclosed the express intent of the framers to enshrine in

of the word shall – an imperative, operating to impose a

the Constitution, upon the initiative of Commissioner

duty that may be enforced[71] – should not be disregarded.

Eulogio Lerum, “a command [to the President] to fill up any

Thereby,

vacancy therein within 90 days from its occurrence,” which

the imperative duty to make an appointment of a Member

even Valenzuela conceded.[69] The

exchanges

of the Supreme Court within 90 days from the occurrence

during deliberations of the Constitutional Commission

of the vacancy. The failure by the President to do so will

on October 8, 1986 further show that the filling of a

be a clear disobedience to the Constitution.

Sections

4(1)

imposes

on

the

President

vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz:

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the

MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.

MR. DE CASTRO. And the second sentence of this subsection reads: “Any vacancy shall be filled within ninety days from the occurrence thereof.” CONCEPCION. That

establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial

MR. CONCEPCION. Yes.

MR.

Supreme Court was undoubtedly a special provision to

is

right. MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?

interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was “couched in stronger negative language.” Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commission’s deliberations on Section 4 (1), Article VIII.

last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rule’s application, largely because of the principle of implied repeal.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:[72] xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision

like Valenzuela should not be allowed to last after its false premises have been exposed.[74] It will not do to merely distinguishValenzuela from these cases, for the result to be

reached

herein

is

entirely

incompatible

with

what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and forgettable.

We reverse Valenzuela. In this connection, PHILCONSA’s urging of a revisit

and

a

review

of Valenzuela is

timely

and

appropriate. Valenzuela arbitrarily ignored the express

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by anoutgoing Chief Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed,

[73]

stating that:

Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section 15, Article VII extends to appointments in the Judiciary

cannot

be

sustained.

A

misinterpretation

xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a

Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight” appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority to the incoming President.” Said the Court: “The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the

new administration of an opportunity to make the corresponding appointments.” As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee’s qualifications,” can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only “midnight” appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII – allowing appointments to be made during the period of the ban therein provided – is much narrower than that recognized inAytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the

appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court’s view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are longlasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.[76]

Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the

unhurried and deliberate prior process of the JBC ensured

shows that even candidates for judicial positions at any

that there would no longer bemidnight appointments to the

level backed by people influential with the President could

The fault of Valenzuela was that it accorded no

Judiciary.

mold

not always be assured of being recommended for the

weight and due consideration to the confirmation of Justice

of Aytona were made in haste and with irregularities, or

consideration of the President, because they first had to

Regalado. Valenzuela was weak, because it relied on

made by an outgoing Chief Executive in the last days of

undergo the vetting of the JBC and pass muster

interpretation to determine the intent of the framers rather

his administration out of a desire to subvert the policies of

there. Indeed,

than

If

midnight

appointments

in

the

the

creation

of

the

JBC

on

the

deliberations

of

the

Constitutional

partisanship,[77] the

was precisely intended to de-politicize the Judiciary by

Commission. Much of the unfounded doubt about the

made

the

doing away with the intervention of the Commission on

President’s power to appoint during the period of

establishment of the JBC would not be suffering from such

Appointments. This insulating process was absent from

prohibition in Section 15, Article VII could have been

defects because of the JBC’s prior processing of

the Aytona midnight appointment.

dispelled since its promulgation on November 9, 1998,

the

incoming

appointments

President to

the

or

for

Judiciary

after

candidates. Indeed, it is axiomatic in statutory construction

had Valenzuela properly acknowledged and relied on the

that the ascertainment of the purpose of the enactment is

Third. As earlier stated, the non-applicability of

a step in the process of ascertaining the intent or meaning

Section 15, Article VII to appointments in the Judiciary was

of the enactment, because the reason for the enactment

confirmed by then Senior Associate Justice Regalado to

must necessarily shed considerable light on “the law of the

the JBC itself when it met on March 9, 1998 to discuss the

statute,” i.e., the intent; hence, the enactment should be

question

construed with reference to its intended scope and

“constitutionality of xxx appointments” to the Court of

purpose, and the court should seek to carry out this

Appeals in light of the forthcoming presidential elections.

purpose rather than to defeat it.[78]

He assured that “on the basis of the (Constitutional)

Also, the intervention of the JBC eliminates the

raised

by

some

sectors

about

the

confirmation

of

a

distinguished

member

of

the

Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President.

Section

14

speaks

of

the

power

of

Commission’s records, the election ban had no application

the succeeding President to revoke appointments made by

to

an Acting President,[81] and evidently refers only to

appointments

to

the

Court

was accepted by

Appeals.”[79] This

danger that appointments to the Judiciary can be made for

confirmation

the purpose of buying votes in a coming presidential

submitted

election, or of satisfying partisan considerations. The

nominations for the eight vacancies in the Court of

because temporary or acting appointments

experience from the time of the establishment of the JBC

Appeals.[80]

undermine the independence of the Judiciary due to their

to

the

President

the

of

for

JBC,

which

consideration

then the

appointments in the Executive Department. It has no application

to

appointments

in

the

Judiciary, can

only

being revocable at will.[82] The letter and spirit of the

statute must be interpreted with reference to the context,

the appointment by the incumbent President does not run

Constitution safeguard that independence. Also, there is

i.e. that every part must be considered together with the

the same risk of compromising judicial independence,

no law in the books that authorizes the revocation of

other parts, and kept subservient to the general intent of

precisely because her term will end by June 30, 2010.

[84]

appointments in the Judiciary. Prior to their mandatory

the whole enactment.

retirement or resignation, judges of the first and second

framers deliberately situated Section 15 between Section

Sixth. The argument has been raised to the

level courts and the Justices of the third level courts may

14 and Section 16, if they intended Section 15 to

effect that there will be no need for the incumbent

only be removed for cause, but the Members of the

cover all kinds of presidential appointments. If that was

President to appoint during the prohibition period the

Supreme Court may be removed only by impeachment.

their intention in respect of appointments to the Judiciary,

successor of Chief Justice Puno within the context of

the framers, if only to be clear, would have easily and

Section 4 (1), Article VIII, because anyway there will still be

surely inserted a similar prohibition in Article VIII, most

about 45 days of the 90 days mandated in Section 4(1),

likely within Section 4 (1) thereof.

Article VIII remaining.

Section

16

covers

only

the

presidential

appointments that require confirmation by the Commission

It is absurd to assume that the

on Appointments. Thereby, the Constitutional Commission restored

the

requirement

of

confirmation

by

the

Fifth. To

did

The argument is flawed, because it is focused

Commission on Appointments after the requirement was

in Valenzuela that Section 15 extends to appointments to

only on the coming vacancy occurring from Chief Justice

removed from the 1973 Constitution. Yet, because of

the Judiciary further undermines the intent of the

Puno’s retirement by May 17, 2010. It ignores the need to

Section 9 of Article VIII, the restored requirement did not

Constitution of ensuring the independence of the Judicial

apply Section 4(1) to every situation of a vacancy in the

include appointments to the Judiciary.[83]

Department

Supreme Court.

from

hold

the

like

Executive

the

and

Court

Legislative

Departments. Such a holding will tie the Judiciary and the Section 14, Section 15, and Section 16 are

Supreme Court to the fortunes or misfortunes of political

The argument also rests on the fallacious

obviously of the same character, in that they affect the

leaders vying for the Presidency in a presidential election.

assumption that there will still be time remaining in the 90-

power of the President to appoint. The fact that Section 14

Consequently, the wisdom of having the new President,

day period under Section 4(1), Article VIII. The fallacy is

and Section 16 refer only to appointments within the

instead of the current incumbent President, appoint the

easily demonstrable, as the OSG has shown in its

Executive Department renders conclusive that Section 15

next Chief Justice is itself suspect, and cannot ensure

comment.

also applies only to the Executive Department. This

judicial independence, because the appointee can also

conclusion is consistent with the rule that every part of the

become beholden to the appointing authority. In contrast,

Section 4 (3), Article VII requires the regular

The question is not squarely before us at the

elections to be held on the second Monday of May, letting

Seventh. As a matter of fact, in an extreme

moment, but it should lend itself to a deeper analysis if and

the elections fall on May 8, at the earliest, or May 14, at

case, we can even raise a doubt on whether a JBC list is

when circumstances permit. It should be a good issue for

the latest. If the regular presidential elections are held on

necessary at all for the President – any President – to

the proposed Constitutional Convention to consider in the

May 8, the period of the prohibition is 115 days. If such

appoint a Chief Justice if the appointee is to come from the

light of Senate President Juan Ponce Enrile’s statement

elections are held on May 14, the period of the prohibition

ranks of the sitting justices of the Supreme Court.

that the President can appoint the Chief Justice from

is 109 days. Either period of the prohibition is longer than

Sec. 9, Article VIII says:

the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions

(i.e.,

the

difference between the shortest

possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing

list. xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx

President would be in no position to comply with the

The provision clearly refers to an appointee coming

Constitution could not have intended such an absurdity. In

into the Supreme Court from the outside, that is, a non-

fact, in their deliberations on the mandatory period for the

member of the Court aspiring to become one. It speaks of

appointment of Supreme Court Justices under Section 4

candidates for the Supreme Court, not of those who are

(1), Article VIII, the framers neither discussed, nor

already members or sitting justices of the Court, all of

mentioned, nor referred to the ban against midnight

whom have previously been vetted by the JBC.

address the situation of having the next President appoint the successor.

appointments under Section 15, Article VII, or its effects on

apply to a vacancy in the Supreme Court, or in any of the lower courts.

The posture has been taken that no urgency exists

Puno, considering that the Judiciary Act of 1948 can still

Court. It is safe to assume that the framers of the

because they never intended Section 15, Article VII to

II The Judiciary Act of 1948

for the President to appoint the successor of Chief Justice

constitutional duty to fill up a vacancy in the Supreme

the 90-day period, or vice versa. They did not need to,

among the sitting justices of the Court even without a JBC

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

Section 12 of the Judiciary Act of 1948 states: Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This

provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.

on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and

The appointment of the next Chief Justice by the

the appointment is never in an acting capacity. The

incumbent President is preferable to having the Associate

express reference to a Chief Justice abhors the idea that

Justice who is first in precedence take over. Under the

the framers contemplated an Acting Chief Justice to head

Constitution, the heads of the Legislative and Executive

the membership of the Supreme Court. Otherwise, they

Departments are popularly elected, and whoever are

would have simply written so in the Constitution.

elected and proclaimed at once become the leaders of

Consequently, to rely on Section 12 of the Judiciary Act of

their respective Departments. However, the lack of any

1948 in order to forestall the imperative need to appoint

appointed occupant of the office of Chief Justice harms the

the next Chief Justice soonest is to defy the plain intent of

independence of the Judiciary, because the Chief Justice

the Constitution.

is the head of the entire Judiciary. The Chief Justice

The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances, the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is appointed or until the disability is removed. performs functions absolutely significant to the life of the Notwithstanding that there is no pressing need to For sure, the framers intended the position of

nation. With the entire Supreme Court being the

Chief Justice to be permanent, not one to be occupied in

Presidential Electoral Tribunal, the Chief Justice is the

an acting or temporary capacity. In relation to the scheme

Chairman of the Tribunal. There being no obstacle to the

of things under the present Constitution, Section 12 of the

appointment of the next Chief Justice, aside from its being

Judiciary Act of 1948 only responds to a rare situation in

mandatory for the incumbent President to make within the

which the new Chief Justice is not yet appointed, or in

90-day period from May 17, 2010, there is no justification

which the incumbent Chief Justice is unable to perform the

to insist that the successor of Chief Justice Puno be

duties

appointed by the next President.

dwell on this peripheral matter after the Court has hereby resolved the question of consequence, we do not find it amiss to confront the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows and

powers

of

the

office. It

ought

to

be

that the Supreme Court is composed of a Chief Justice remembered, however, that it was enacted because the and 14 Associate Justices, who all shall be appointed by Chief Justice appointed under the 1935 Constitution was

Historically, under the present Constitution, there

subject to the confirmation of the Commission on

has been no wide gap between the retirement and the

Appointments, and the confirmation process might take

resignation of an incumbent Chief Justice, on one hand,

longer than expected.

and the appointment to and assumption of office of his

the President from a list of at least three nominees prepared

by

the

JBC

for

every

vacancy,

which

appointments require no confirmation by the Commission

successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as follows:

Section 8(5) and Section 9, Article VIII, mandate May the JBC be compelled to submit the list of

President for every vacancy in the Judiciary:

nominees to the President? 1.

2.

3.

4.

5.

When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day; When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day; When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991; When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998; When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and

Section 8. xxx Mandamus shall

issue

when

any

tribunal,

corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station.

[86]

It is

proper when the act against which it is directed is one addressed

to

the

discretion

of

the

tribunal

or

officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.[87]

When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]

III Writ of mandamus does not lie against the JBC

(5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is

6.

the JBC to submit a list of at least three nominees to the

ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the

duty.[88] For mandamus to lie against the JBC, therefore,

submit the list of nominees to the President to fill the

JBC to submit to the President the list of nominees to fill a

there should be an unexplained delay on its part in

vacancy created by the compulsory retirement of Chief

vacancy in the Supreme Court in order to enable the

recommending nominees to the Judiciary, that is, in

Justice Puno.

President to appoint one of them within the 90-day period

submitting the list to the President.

from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the

The distinction between a ministerial act and a

vacancy occurs, because that shortens the 90-day period

discretionary one has been delineated in the following

allowed by the Constitution for the President to make the

manner:

appointment. For the JBC to do so will be unconscionable on

its

part,

considering

that

it

In light of the foregoing disquisitions, the The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.[89]

will

thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90day period to appoint is ministerial, but its selection of the

IV Writ of prohibition does not lie against the JBC

conclusion is ineluctable that only the President can appoint the Chief Justice. Hence, Soriano’s petition for prohibition in G.R. No. 191032, which proposes to prevent the JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a vote each to

candidates whose names will be in the list to be submitted

the ex officio members from the Senate and the House of

to the President lies within the discretion of the JBC. The

Accordingly, we find no sufficient grounds to grant

Representatives, thereby prejudicing the chances of some

petitions

object of the petitions for mandamus herein should only

the

writ

candidates for nomination by raising the minimum number

refer to the duty to submit to the President the list of

of mandamus against the JBC. The actions for that

of votes required in accordance with the rules of the JBC,

nominees for every vacancy in the Judiciary, because in

purpose are premature, because it is clear that the JBC

is not based on the petitioners’ actual interest, because

order to constitute unlawful neglect of duty, there must be

still has until May 17, 2010, at the latest, within which to

they have not alleged in their petition that they were

an

unjustified

delay

in

performing

that

for mandamus and

to

issue

a

nominated to the JBC to fill some vacancies in the

Judiciary. Thus, the petitioners lack locus standi on that issue.

(b) To prepare the short list of nominees for the position of Chief Justice;

WHEREFORE, the Court: (c) To submit President 1.

Dismisses

the

to the incumbent the

short

list

of

petitions nominees for the position of

for certiorari and mandamus in G.R. No. 191002 and G.R. Chief Justice on or before May No. 191149, and the petition for mandamus in G.R. No. 17, 2010; and 191057 for being premature; (d) To continue its proceedings for 2.

Dismisses the petitions for prohibition in

the nomination of candidates to

G.R. No. 191032 and G.R. No. 191342 for lack of merit;

fill

and

Judiciary

and

President

the

3.

Grants the petition in A.M. No. 10-2-5-

SC and, accordingly, directs the Judicial and Bar Council:

other

vacancies

in

the

submit

to

the

short

list

of

nominees corresponding thereto in accordance with this decision.

(a) To resume its proceedings for the

INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as nongovernmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members of the Philippine Senate who concurred in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary,respondents.

SO ORDERED. nomination of candidates to fill

DECISION

the vacancy to be created by the compulsory retirement of Chief Justice Reynato S. Puno byMay 17, 2010;

PANGANIBAN, J.: WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast majority of countries has revolutionized international business and economic relations amongst states. It has irreversibly propelled the world towards trade liberalization and economic globalization. Liberalization, globalization, deregulation and privatization, the thirdmillennium buzz words, are ushering in a new borderless world of business by sweeping away as mere historical

relics the heretofore traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented global scenario are replacing age-old “beggar-thy-neighbor” policies that unilaterally protect weak and inefficient domestic producers of goods and services. In the words of Peter Drucker, the well-known management guru, “Increased participation in the world economy has become the key to domestic economic growth and prosperity.”

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment of three multilateral institutions -- inspired by that grand political body, the United Nations -- were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation and reconstruction of warravaged and later developing countries; the second, the International Monetary Fund (IMF) which was to deal with currency problems; and the third, the International Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize unilateral protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT -- the General Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty adherents with no institutionalized body administering the agreements or dependable system of dispute settlement. After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body -- the World Trade Organization -- with the signing of the “Final Act” in Marrakesh, Morocco and the ratification of the WTO Agreement by its members.[1]

Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving “Philippine access to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural and industrial products.” The President also saw in the WTO the opening of “new opportunities for the services sector x x x, (the reduction of) costs and uncertainty associated with exporting x x x, and (the attraction of) more investments into the country.” Although the Chief Executive did not expressly mention it in his letter, the Philippines - - and this is of special interest to the legal profession - - will benefit from the WTO system of dispute settlement by judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived at frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of its implementation and enforcement through the release and utilization of public funds, the assignment of public officials and employees, as well as the use of government properties and resources by respondent-heads of various executive offices concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of Trade and Industry (Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity). By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines, agreed:

Arguing mainly (1) that the WTO requires the Philippines “to place nationals and products of membercountries on the same footing as Filipinos and local products” and (2) that the WTO “intrudes, limits and/or impairs” the constitutional powers of both Congress and the Supreme Court, the instant petition before this Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to “develop a self-reliant and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.” Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and economic globalization? Does it prescribe Philippine integration into a global economy that is liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of

“(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions.” On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the President of the Philippines,[3] stating among others that “the Uruguay Round Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.” On August 13, 1994, the members of the Philippine Senate received another letter from the President of the Philippines[4] likewise dated August 11, 1994, which stated among others that “the Uruguay Round Final Act, the

Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.” On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S. 1083, a resolution entitled “Concurring in the Ratification of the Agreement Establishing the World Trade Organization.”[5] On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which “Resolved, as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement Establishing the World Trade Organization.”[6] The text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36volumeUruguay Round of Multilateral Trade Negotiations and includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:

Agreement on Technical Barriers to Trade Agreement on Trade-Related Investment Measures Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994 Agreement on Pre-Shipment Inspection Agreement on Rules of Origin

“ANNEX 1 Annex 1A:

Multilateral Agreement on Trade in Goods General Agreement on Tariffs and Trade 1994 Agreement on Agriculture Agreement on the Application of Sanitary and Phytosanitary Measures Agreement on Textiles and Clothing

Agreement on Imports Licensing Procedures Agreement on Subsidies and Coordinating Measures Agreement on Safeguards Annex 1B: General Agreement on Trade in Services and Annexes Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

Understanding on Rules and Procedures Governing the Settlement of Disputes ANNEX 3 Trade Policy Review Mechanism” On December 16, 1994, the President of the Philippines signed[7] the Instrument of Ratification, declaring: “NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after having seen and considered the aforementioned Agreement Establishing the World Trade Organization and the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.” To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement Proper and “the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof.” On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,[8] the Solicitor General describes these two latter documents as follows: “The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute settlement.

ANNEX 2 The Understanding on Commitments in Financial Services dwell on, among other things, standstill or limitations and

qualifications of commitments to existing non-conforming measures, market access, national treatment, and definitions of non-resident supplier of financial services, commercial presence and new financial service.” On December 29, 1994, the present petition was filed. After careful deliberation on respondents’ comment and petitioners’ reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the parties thereafter filed their respective memoranda. The Court also requested the Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as “Bautista Paper,”[9] for brevity, (1) providing a historical background of and (2) summarizing the said agreements. During the Oral Argument held on August 27, 1996, the Court directed: “(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the transcript of proceedings/hearings in the Senate; and (b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.” After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various “bilateral or multilateral treaties or international instruments involving derogation of Philippine sovereignty.” Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows: “A. Whether the petition presents a political question or is otherwise not justiciable. B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the World Trade Organization or of the validity of the concurrence. C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution. D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987 Philippine Constitution is ‘vested in the Congress of the Philippines’; E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the exercise of judicial power. F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-infirm Agreement Establishing the World Trade Organization. G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing the World Trade Organization, and not with the Presidential submission which included the Final Act,

Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.” On the other hand, the Solicitor General as counsel for respondents “synthesized the several issues raised by petitioners into the following”:[10] “1. Whether or not the provisions of the ‘Agreement Establishing the World Trade Organization and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that agreement’ cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution. 2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative power by Congress. 3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable Court in promulgating the rules of evidence. 4. Whether or not the concurrence of the Senate ‘in the ratification by the President of the Philippines of the Agreement establishing the World Trade Organization’ implied rejection of the treaty embodied in the Final Act.” By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are estopped from joining this suit; and (3) whether the respondentmembers of the Senate acted in grave abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court resolved to deal with these three issues thus: (1) The “political question” issue -- being very fundamental and vital, and being a matter that probes into the very jurisdiction of this Court to hear and decide this case --

was deliberated upon by the Court and will thus be ruled upon as the first issue; (2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents’ favor, will not cause the petition’s dismissal as there are petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and (3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an integral part of the disposition of the four issues raised by the Solicitor General. During its deliberations on the case, the Court noted that the respondents did not question the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized that grave constitutional issues, expenditures of public funds and serious international commitments of the nation are involved here, and that transcendental public interest requires that the substantive issues be met head on and decided on the merits, rather than skirted or deflected by procedural matters.[11] To recapitulate, the issues that will be ruled upon shortly are: (1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION? (2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION? (3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR IMPAIR THE

EXERCISE OF LEGISLATIVE POWER BY CONGRESS? (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE? (5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. “The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld.”[12] Once a “controversy as to the application or interpretation of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.”[13] The jurisdiction of this Court to adjudicate the matters[14] raised in the petition is clearly set out in the 1987 Constitution,[15] as follows: “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting

to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.” The foregoing text emphasizes the judicial department’s duty and power to strike down grave abuse of discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in our political law.[16] As explained by former Chief Justice Roberto Concepcion,[17] “the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.” As this Court has repeatedly and firmly emphasized in many cases,[18] it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government. As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have no equivocation. We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the government’s economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty “to determine whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction” on the part of the Senate in ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

This is the lis mota, the main issue, raised by the petition. Petitioners vigorously argue that the “letter, spirit and intent” of the Constitution mandating “economic nationalism” are violated by the so-called “parity provisions” and “national treatment” clauses scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. Specifically, the “flagship” constitutional provisions referred to are Sec. 19, Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:

In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. xx

xx xx

xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.” Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in their memorandum:[19]

“Article II DECLARATION OF PRINCIPLES AND STATE POLICIES xx

“Article 2

xx xx

“a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

xx

The Annex referred to reads as follows: “ANNEX Illustrative List 1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require: (a) the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of proportion of volume or value of its local production; or (b) that an enterprise’s purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports.

National Treatment and Quantitative Restrictions. Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. xx

xx xx

xx

Article XII NATIONAL ECONOMY AND PATRIMONY xx

xx xx

xx

1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994. 2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the Annex to this Agreement.” (Agreement on TradeRelated Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p.22121, emphasis supplied).

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic laws or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict: (a) the importation by an enterprise of products used in or related to the local production that it exports; (b) the importation by an enterprise of products used in or related to its local production by restricting its access to

foreign exchange inflows attributable to the enterprise; or (c) the exportation or sale for export specified in terms of particular products, in terms of volume or value of products, or in terms of a preparation of volume or value of its local production.” (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal Documents, p.22125, emphasis supplied). The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows: The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favorable than that accorded to like products of national origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. the provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.” (Article III, GATT 1947, as amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments p.177, emphasis supplied). “b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity): Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432 (emphasis supplied) “(c) In the area of the General Agreement on Trade in Services:

National Treatment 1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than it accords to its own like services and service suppliers. 2. A Member may meet the requirement of paragraph I by according to services and service suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers. 3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of completion in favour of services or service suppliers of the Member compared to like services or service suppliers of any other Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis supplied).” It is petitioners’ position that the foregoing “national treatment” and “parity provisions” of the WTO Agreement “place nationals and products of member countries on the same footing as Filipinos and local products,” in contravention of the “Filipino First” policy of the Constitution. They allegedly render meaningless the phrase “effectively controlled by Filipinos.” The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed agreements.[20] Petitioners further argue that these provisions contravene constitutional limitations on the role exports play in national development and negate the

preferential treatment accorded to Filipino labor, domestic materials and locally produced goods. On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with the Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the harshness of sudden trade liberalization. We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a “declaration of principles and state policies.” The counterpart of this article in the 1935 Constitution[21] is called the “basic political creed of the nation” by Dean Vicente Sinco.[22] These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts.[23] They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato,[24] the principles and state policies enumerated in Article II and some sections of Article XII are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.” In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need legislative enactments to implement them, thus: “On petitioners’ allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely

statements of principles and policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. ‘In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. They were rather directives addressed to the executive and to the legislature. If the executive and the legislature failed to heed the directives of the article, the available remedy was not judicial but political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2).” The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade “into the uncharted ocean of social and economic policy making.” Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows: “My suggestion is simply that petitioners must, before the trial court, show a more specific legal right -- a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution -- that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms,

defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter.

to the national economy and patrimony, should be read and understood in relation to the other sections in said article, especially Secs. 1 and 13 thereof which read:

The second is a broader-gauge consideration -- where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads:

“Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

‘Section 1.

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

xxx

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.’ (Emphases supplied) When substantive standards as general as ‘the right to a balanced and healthy ecology’ and ‘the right to health’ are combined with remedial standards as broad ranging as ‘a grave abuse of discretion amounting to lack or excess of jurisdiction,’ the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments -- the legislative and executive departments -- must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene.”

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. x x x x x x x

x x xxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.” As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as follows: 1. A more equitable distribution of opportunities, income and wealth;

Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people; and 3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.

With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing preference in favor of qualified Filipinos “in the grant of rights, privileges and concessions covering the national economy and patrimony”[27] and in the use of “Filipino labor, domestic materials and locally-produced goods”; (2) by mandating the State to “adopt measures that help make them competitive;[28] and (3) by requiring the State to “develop a self-reliant and independent national economy effectively controlled by Filipinos.”[29] In similar language, the Constitution takes into account the realities of the outside world as it requires the pursuit of “a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity”;[30] and speaks of industries “which are competitive in both domestic and foreign markets” as well as of the protection of “Filipino enterprises against unfair foreign competition and trade practices.” It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et [31] al., this Court held that “Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable.” However, as the constitutional provision itself states, it is enforceable only in regard to “the grants of rights, privileges and concessions covering national economy and patrimony” and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are. All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair.[32] In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the

Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each member’s vote equal in weight to that of any other. There is no WTO equivalent of the UN Security Council. “WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision will require assent of all members. Any member may withdraw from the Agreement upon the expiration of six months from the date of notice of withdrawals.”[33] Hence, poor countries can protect their common interests more effectively through the WTO than through one-on-one negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda more decisively than outside the Organization. This is not merely a matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need of developing countries like the Philippines to “share in the growth in international trade commensurate with the needs of their economic development.” These basic principles are found in the preamble[34] of the WTO Agreement as follows:

“The Parties to this Agreement, Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development, Recognizing further that there is need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development, Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations, Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations, Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system, x x x.” (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO Agreement grants developing countries a more

lenient treatment, giving their domestic industries some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be effected within aperiod of six (6) years while developing countries -- including the Philippines -- are required to effect an average tariff reduction of only 24% within ten (10) years. In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10) years. In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that prescribed for developed countries and a longer period of ten (10) years within which to effect such reduction. Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore any basis for the statement that under the WTO, local industries and enterprises will all be wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker situations of developing nations like the Philippines have been taken into account; thus, there would be no basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave abuse of discretion, simply because we disagree with it or simply because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the advantages and disadvantages of trade liberalization as an economic

policy. It will only perform its constitutional duty of determining whether the Senate committed grave abuse of discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a “selfreliant and independent national economy”[35] does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.” As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy: “Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control of the national economy, especially in such strategic industries as in the development of natural resources and public utilities.”[36] The WTO reliance on “most favored nation,” “national treatment,” and “trade without discrimination” cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on “equality and reciprocity,”[37] the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. On the other hand , respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the public at large. Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality? Will WTO/GATT succeed in promoting the Filipinos’ general welfare because it will -- as promised by its promoters -- expand the country’s exports and generate more employment? Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to the Filipino public? The responses to these questions involve “judgment calls” by our policy makers, for which they are answerable to our people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might not have anticipated the advent of a borderless world of business. By the same token, the United Nations was not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the then

Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign relations to the decisions of various UN organs like the Security Council? It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law writer and respected jurist[38] explains: “The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a twinkling by mandate of our delegates, but slowly ‘in the crucible of Filipino minds and hearts,’ where it will in time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation.”

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that “(e)ach Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.”[39] Petitioners maintain that this undertaking “unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign powers of the Philippines because this means that Congress could not pass

legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also to the flow of investments and money x x x as well as to a whole slew of agreements on sociocultural matters x x x.”[40] More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the Congress.[41] And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to “specified limits and x x x such limitations and restrictions” as Congress may provide,[42] as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution “adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations."[43] By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws.[44] One of the oldest and most fundamental rules in international law is pacta sunt servanda -- international agreements must be performed in good faith. “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”[45]

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations.[46] The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, “Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here.”[47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its sovereign rights under the “concept of sovereignty as auto-limitation.”47-AUnder Article 2 of the UN Charter, “(a)ll members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were “expenses of the United Nations” under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their corresponding share in such expenses. In this sense, the

Philippine Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of sovereignty of members within their own territory. Another example: although “sovereign equality” and “domestic jurisdiction” of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the Charter. A final example: under Article 103, “(i)n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligation under the present charter shall prevail,” thus unquestionably denying the Philippines -- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if any, to honor. Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both bilateral and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in his Compliance dated October 24, 1996, as follows: “(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed, among others, to exempt from tax, income received in the Philippines by, among others, the Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries and similar remunerations paid by the United States to its citizens for labor and personal services performed by them as employees or officials of the United States are exempt from income tax by the Philippines. (b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation. (d) Bilateral convention with the French Republic for the avoidance of double taxation. (e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment, spare parts and supplies arriving with said aircrafts. (f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil. (g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the same privileges as those granted to Japanese and Korean air carriers under separate air service agreements. (h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines not exceeding 59 days. (I) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit and visitor visa for a sojourn not exceeding 59 days. (j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special Missions in the Philippines are inviolable and its agents can not enter said premises without consent of the Head of Mission concerned. Special Missions are also

exempted from customs duties, taxes and related charges. (k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be governed by the Vienna Convention on the Law of Treaties. (l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of international obligation.” In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT. “International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But unless anarchy in international relations is preferred as an alternative, in most cases we accept that the benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger set of potential new trading relationship than in

case of the larger country gaining enhanced success to the smaller country’s market.”[48] The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of x x x cooperation and amity with all nations.”

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[49] intrudes on the power of the Supreme Court to promulgate rules concerning pleading, practice and procedures.[50] To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to restate its full text as follows: “Article 34 Process Patents: Burden of Proof 1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process: (a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. 2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled. 3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.” From the above, a WTO Member is required to provide a rule of disputable (note the words “in the absence of proof to the contrary”) presumption that a product shown to be identical to one produced with the use of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such product obtained by the patented product is new, or (2) where there is “substantial likelihood” that the identical product was made with the use of the said patented process but the owner of the patent could not determine the exact process used in obtaining such identical product. Hence, the “burden of proof” contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to overthrow such presumption. Such burden, properly understood, actually refers to the “burden of evidence” (burden of going forward) placed on the producer of the identical (or fake) product to show that his product was produced without the use of the patented process. The foregoing notwithstanding, the patent owner still has the “burden of proof” since, regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged identical product, the fact that it is “identical” to the genuine one produced by the patented process and the fact of “newness” of the genuine product or the fact of “substantial likelihood” that the identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of infringement of patented design or utility model, thus: “SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article or product and in the making, using or selling of the article or product copying the patented design or utility model. Identity or substantial identity with the patented design or utility model shall constitute evidence of copying.” (underscoring supplied) Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1) the product obtained by the patented process is NEW or (2) there is a substantial likelihood that the identical product was made by the process and the process owner has not been able through reasonable effort to determine the process used. Where either of these two provisos does not obtain, members shall be free to determine the appropriate method of implementing the provisions of TRIPS within their own internal systems and processes. By and large, the arguments adduced in connection with our disposition of the third issue -- derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial system. So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights, the adjustment in legislation and rules of procedure will not be substantial.[52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in the other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in representation of the Republic upon authority of the President. They contend that the second letter of the President to the Senate[53] which enumerated what constitutes the Final Act should have been the subject of concurrence of the Senate. “A final act, sometimes called protocol de clôture, is an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference.”[54] It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. The text of the “Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations” is contained in just one page[55] in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative of the Republic of the Philippines undertook: "(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures; and (b) to adopt the Ministerial Declarations and Decisions." The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its signatories, namely, concurrence of the Senate in the WTO Agreement. The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were

approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet “to give effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating the operation and furthering the objectives of this Agreement.”[56] The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the Philippines. It applies only to those 27 Members which “have indicated in their respective schedules of commitments on standstill, elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment with respect to access to payment, clearing systems and refinancing available in the normal course of business.”[57] On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its integral parts,[58] as follows: “Article II Scope of the WTO 1. The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters to the agreements and associated legal instruments included in the Annexes to this Agreement. 2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter referred to as “Multilateral Agreements”) are integral parts of this Agreement, binding on all Members. 3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as “Plurilateral Trade Agreements”) are also part of this Agreement for those Members that have accepted them, and are binding on those Members. The Plurilateral Trade Agreements do not create either obligation or rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as “GATT 1994”) is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or modified (hereinafter referred to as “GATT 1947”). It should be added that the Senate was well-aware of what it was concurring in as shown by the members’ deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994,[59] the senators of the Republic minutely dissected what the Senate was concurring in, as follows: [60] “THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing of this Committee yesterday. Was the observation made by Senator Tañada that what was submitted to the Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay Round which is not the same as the agreement establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed to withdraw upon understanding that his suggestion for an alternative solution at that time was acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of briefings for Senators until the question of the submission could be clarified. And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission which improves on the clarity of the first submission? MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it was his intention to clarify all matters by giving this letter. THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Tañada and later on Senator Tolentino since they were the ones that raised this question yesterday? Senator Tañada, please. SEN. TAÑADA: Thank you, Mr. Chairman. Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding and Commitments in Financial Services. I am now satisfied with the wording of the new submission of President Ramos.

In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the Constitution and the Final Act itself. Thank you, Mr. Chairman. THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales. SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had been adequately reflected in the journal of yesterday’s session and I don’t see any need for repeating the same. Now, I would consider the new submission as an act ex abudante cautela.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman. THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from Senator Tolentino? And after him Senator Neptali Gonzales and Senator Lina. SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the Final Act itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement which is now being submitted. The Final Act itself specifies what is going to be submitted to with the governments of the participants. In paragraph 2 of the Final Act, we read and I quote: ‘By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement for the consideration of the respective competent authorities with a view to seeking approval of the Agreement in accordance with their procedures.’

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this? SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have no further comment to make.”

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this Court’s constitutionally imposed duty “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction” on the part of the Senate in giving its concurrence therein via Senate Resolution No. 97. Procedurally, a writ of certiorarigrounded on grave abuse of discretion may be issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have no other

plain, speedy and adequate remedy in the ordinary course of law. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.[61] Mere abuse of discretion is not enough. It must be graveabuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[62] Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition.[63] In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of regularity in the Senate’s processes, this Court cannot find any cogent reason to impute grave abuse of discretion to the Senate’s exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.[64] It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such principles -- while serving as judicial and legislative guides -- are not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a “trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity” and the promotion of industries “which are competitive in both domestic and foreign markets,” thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced

by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations.

prosperity and stability in the new millennium. Let the people, through their duly authorized elected officers, make their free choice.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate exercise of its sovereign duty and power. We find no “patent and gross” arbitrariness or despotism “by reason of passion or personal hostility” in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

merit.

The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance[65] where “the East will become the dominant region of the world economically, politically and culturally in the next century.” He refers to the “free market” espoused by WTO as the “catalyst” in this coming Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if not economic selfdestruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now straddles the crossroads of an international strategy for economic

WHEREFORE, the petition is DISMISSED for lack of

management

expertise

and/or

an

international

marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel

EN BANC

Corporation, a Filipino corporation, which offered to buy

G.R. No. 122156 February 3, 1997

51% of the MHC or 15,300,000 shares at P41.58 per

MANILA

PRINCE

HOTEL petitioner,

share, and Renong Berhad, a Malaysian firm, with ITTSheraton as its hotel operator, which bid for the same

vs. GOVERNMENT

SERVICE

INSURANCE

SYSTEM,

number of shares at P44.00 per share, or P2.42 more than

MANILA HOTEL CORPORATION, COMMITTEE ON

the bid of petitioner.

PRIVATIZATION and OFFICE OF THE GOVERNMENT

Pertinent provisions of the bidding rules prepared by

CORPORATE COUNSEL, respondents.

respondent GSIS state —

BELLOSILLO, J.:

I. EXECUTION OF THE NECESSARY CONTRACTS

The FiIipino

First

Policy enshrined

in

the

1987

WITH GSIS/MHC —

Constitution, i.e., in the grant of rights, privileges, and

1. The Highest Bidder must comply with the conditions set

concessions

and

forth below by October 23, 1995 (reset to November 3,

patrimony, the State shall give preference to qualified

1995) or the Highest Bidder will lose the right to purchase

covering

the

national

economy

Filipinos, is in oked by petitioner in its bid to acquire 51%

the Block of Shares and GSIS will instead offer the Block

of the shares of the Manila Hotel Corporation (MHC) which

of Shares to the other Qualified Bidders:

owns the historic Manila Hotel. Opposing, respondents

a. The Highest Bidder must negotiate and execute with the

maintain that the provision is not self-executing but

GSIS/MHC

requires an implementing legislation for its enforcement.

Marketing/Reservation System Contract or other type of

Corollarily, they ask whether the 51% shares form part of

contract specified by the Highest Bidder in its strategic

the national economy and patrimony covered by the

plan for the Manila Hotel. . . .

protective mantle of the Constitution.

b. The Highest Bidder must execute the Stock Purchase

The controversy arose when respondent Government

and Sale Agreement with GSIS . . . .

Service Insurance System (GSIS), pursuant to the

K.

privatization program of the Philippine Government under

BIDDER/STRATEGIC PARTNER —

Proclamation No. 50 dated 8 December 1986, decided to

The Highest Bidder will be declared the Winning

sell through public bidding 30% to 51% of the issued and

Bidder/Strategic Partner after the following conditions are

outstanding shares of respondent MHC. The winning

met:

1

bidder, or the eventual “strategic partner,” is to provide

the

Management

DECLARATION

Contract,

OF

THE

International

WINNING

a. Execution of the necessary contracts with GSIS/MHC

practically become a historical monument which reflects

Second, granting that this provision is self-executing,

not later than October 23, 1995 (reset to November 3,

the vibrancy of Philippine heritage and culture. It is a proud

Manila Hotel does not fall under the term national

1995); and

legacy of an earlier generation of Filipinos who believed in

patrimony which only refers to lands of the public domain,

b. Requisite approvals from the GSIS/MHC and COP

the nobility and sacredness of independence and its power

waters, minerals, coal, petroleum and other mineral oils, all

(Committee

and capacity to release the full potential of the Filipino

forces of potential energy, fisheries, forests or timber,

people. To all intents and purposes, it has become a part

wildlife, flora and fauna and all marine wealth in its

on

Privatization)/OGCC

(Office

of

the

Government Corporate Counsel) are obtained. 3

6

Pending the declaration of Renong Berhad as the winning

of the national patrimony. Petitioner also argues that

territorial sea, and exclusive marine zone as cited in the

bidder/strategic partner and the execution of the necessary

since 51% of the shares of the MHC carries with it the

first and second paragraphs of Sec. 2, Art. XII, 1987

contracts, petitioner in a letter to respondent GSIS dated

ownership of the business of the hotel which is owned by

Constitution. According to respondents, while petitioner

28 September 1995 matched the bid price of P44.00 per

respondent GSIS, a government-owned and controlled

speaks of the guests who have slept in the hotel and the

share tendered by Renong Berhad. 4 In a subsequent letter

corporation, the hotel business of respondent GSIS being

events that have transpired therein which make the hotel

dated 10 October 1995 petitioner sent a manager’s check

a part of the tourism industry is unquestionably a part of

historic, these alone do not make the hotel fall under

issued by Philtrust Bank for Thirty-three Million Pesos

the national economy. Thus, any transaction involving 51%

the patrimony of the nation. What is more, the mandate of

(P33.000.000.00) as Bid Security to match the bid of the

of the shares of stock of the MHC is clearly covered by the

the Constitution is addressed to the State, not to

Malaysian Group, Messrs. Renong Berhad . . . which

term national economy, to which Sec. 10, second par., Art.

respondent GSIS which possesses a personality of its own

respondent GSIS refused to accept.

XII, 1987 Constitution, applies. 7

separate and distinct from the Philippines as a State.

that

It is also the thesis of petitioner that since Manila Hotel is

Third, granting that the Manila Hotel forms part of

respondent GSIS has disregarded the tender of the

part of the national patrimony and its business also

the national patrimony, the constitutional provision invoked

matching bid and that the sale of 51% of the MHC may be

unquestionably part of the national economy petitioner

is still inapplicable since what is being sold is only 51% of

hastened by respondent GSIS and consummated with

should be preferred after it has matched the bid offer of the

the outstanding shares of the corporation, not the hotel

Renong Berhad, petitioner came to this Court on

Malaysian firm. For the bidding rules mandate that if for

building nor the land upon which the building stands.

prohibition and mandamus. On 18 October 1995 the Court

any reason, the Highest Bidder cannot be awarded the

Certainly, 51% of the equity of the MHC cannot be

issued

5

On

17

October

a

1995,

temporary

perhaps

restraining

apprehensive

enjoining

Block of Shares, GSIS may offer this to the other Qualified

considered part of the national patrimony. Moreover, if the

respondents from perfecting and consummating the sale to

order

Bidders that have validly submitted bids provided that

disposition of the shares of the MHC is really contrary to

the Malaysian firm.

these Qualified Bidders are willing to match the highest bid

the Constitution, petitioner should have questioned it right

8

On 10 September 1996 the instant case was accepted by

in terms of price per share.

the Court En Banc after it was referred to it by the First

Respondents except. They maintain that: First, Sec. 10,

Fourth, the reliance by petitioner on par. V., subpar. J. 1.,

Division. The case was then set for oral arguments with

second par., Art. XII, of the 1987 Constitution is merely a

of the bidding rules which provides that if for any reason,

former Chief Justice Enrique M. Fernando and Fr. Joaquin

statement of principle and policy since it is not a self-

the Highest Bidder cannot be awarded the Block of

G. Bernas, S.J., as amici curiae.

executing

implementing

Shares, GSIS may offer this to the other Qualified Bidders

In the main, petitioner invokes Sec. 10, second par., Art.

legislation(s) . . . Thus, for the said provision to Operate,

that have validly submitted bids provided that these

XII, of the 1987 Constitution and submits that the Manila

there must be existing laws “to lay down conditions under

Qualified Bidders are willing to match the highest bid in

Hotel has been identified with the Filipino nation and has

which business may be done.” 9

terms of price per share, is misplaced. Respondents

provision

and

from the beginning and not after it had lost in the bidding.

requires

postulate that the privilege of submitting a matching bid

contract whether promulgated by the legislative or by the

provided that a legislative act is necessary to enforce a

has not yet arisen since it only takes place if for any

executive branch or entered into by private persons for

constitutional mandate, the presumption now is that all

reason, the Highest Bidder cannot be awarded the Block

private purposes is null and void and without any force and

provisions of the constitution are self-executing If the

of Shares. Thus the submission by petitioner of a matching

effect. Thus, since the Constitution is the fundamental,

constitutional provisions are treated as requiring legislation

bid is premature since Renong Berhad could still very well

paramount and supreme law of the nation, it is deemed

instead of self-executing, the legislature would have the

be awarded the block of shares and the condition giving

written in every statute and contract.

power to ignore and practically nullify the mandate of the

rise to the exercise of the privilege to submit a matching

Admittedly, some constitutions are merely declarations of

fundamental law. 14 This can be cataclysmic. That is why

bid had not yet taken place.

policies and principles. Their provisions command the

the prevailing view is, as it has always been, that —

Finally, the prayer for prohibition grounded on grave abuse

legislature to enact laws and carry out the purposes of the

. . . in case of doubt, the Constitution should be considered

of discretion should fail since respondent GSIS did not

framers who merely establish an outline of government

self-executing rather than non-self-executing . . . . Unless

exercise its discretion in a capricious, whimsical manner,

providing for the different departments of the governmental

the contrary is clearly intended, the provisions of the

and if ever it did abuse its discretion it was not so patent

machinery

and

Constitution should be considered self-executing, as a

and gross as to amount to an evasion of a positive duty or

inalienable rights of citizens. 12 A provision which lays

contrary rule would give the legislature discretion to

a virtual refusal to perform a duty enjoined by law.

down a general principle, such as those found in Art. II of

determine when, or whether, they shall be effective. These

Similarly,

the

petition

for mandamus should

fail

and

securing

certain

fundamental

as

the 1987 Constitution, is usually not self-executing. But a

provisions would be subordinated to the will of the

petitioner has no clear legal right to what it demands and

provision which is complete in itself and becomes

lawmaking

respondents do not have an imperative duty to perform the

operative without the aid of supplementary or enabling

meaningless by simply refusing to pass the needed

act required of them by petitioner.

legislation, or that which supplies sufficient rule by means

implementing statute. 15

We now resolve. A constitution is a system of fundamental

of which the right it grants may be enjoyed or protected, is

Respondents argue that Sec. 10, second par., Art. XII, of

laws for the governance and administration of a nation. It

self-executing. Thus a constitutional provision is self-

the 1987 Constitution is clearly not self-executing, as they

is supreme, imperious, absolute and unalterable except by

executing if the nature and extent of the right conferred

quote from discussions on the floor of the 1986

the authority from which it emanates. It has been defined

and the liability imposed are fixed by the constitution itself,

Constitutional Commission —

as the fundamental and paramount law of the nation.

10

body,

which

could make them

entirely

It

so that they can be determined by an examination and

MR. RODRIGO. Madam President, I am asking this

prescribes the permanent framework of a system of

construction of its terms, and there is no language

question as the Chairman of the Committee on Style. If the

government, assigns to the different departments their

indicating that the subject is referred to the legislature for

wording of “PREFERENCE” is given to QUALIFIED

13

FILIPINOS,” can it be understood as a preference to

respective powers and duties, and establishes certain

action.

fixed principles on which government is founded. The

As against constitutions of the past, modern constitutions

qualified Filipinos vis-a-vis Filipinos who are not qualified.

fundamental conception in other words is that it is a

have been generally drafted upon a different principle and

So, why do we not make it clear? To qualified Filipinos as

supreme law to which all other laws must conform and in

have often become in effect extensive codes of laws

against aliens?

accordance with which all private rights must be

intended to operate directly upon the people in a manner

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word “QUALIFIED?”.

determined and all public authority administered.

11

Under

similar to that of statutory enactments, and the function of

the doctrine of constitutional supremacy, if a law or

constitutional conventions has evolved into one more like

contract violates any norm of the constitution that law or

that of a legislative body. Hence, unless it is expressly

MR. RODRIGO. No, no, but say definitely “TO QUALIFIED

liability is not necessarily an indication that it was not

provisions on personal dignity, 21 the sanctity of family

FILIPINOS” as against whom? As against aliens or over

intended to be self-executing. The rule is that a self-

life, 22 the vital role of the youth in nation-building 23 the

aliens?

executing provision of the constitution does not necessarily

promotion

of 25

social

justice,

24

and

the

values

of

MR. NOLLEDO. Madam President, I think that is

exhaust legislative power on the subject, but any

education.

understood. We use the word “QUALIFIED” because

legislation must be in harmony with the constitution, further

the constitutional provisions on social justice and human

the existing laws or prospective laws will always lay down

the exercise of constitutional right and make it more

rights 27 and

17

on

education.

28

Lastly, Kilosbayan,

available.

example, qualifications on the setting up of other financial

necessarily mean that the subject constitutional provision

general welfare, 30 the sanctity of family life,

structures, et cetera (emphasis supplied by respondents)

is not, by itself, fully enforceable.

of the youth in nation-building 32 and the promotion of total

MR. RODRIGO. It is just a matter of style.

Respondents also argue that the non-self-executing nature

human liberation and development.

of Sec. 10, second par., of Art. XII is implied from the tenor

provisions indeed clearly shows that they are not judicially

Quite apparently, Sec. 10, second par., of Art XII is

of the first and third paragraphs of the same section which

enforceable constitutional rights but merely guidelines for

couched in such a way as not to make it appear that it is

undoubtedly are not self-executing. 18 The argument is

legislation. The very terms of the provisions manifest that

non-self-executing but simply for purposes of style. But,

flawed. If the first and third paragraphs are not self-

they are only principles upon which the legislations must

certainly, the legislature is not precluded from enacting

executing because Congress is still to enact measures to

be based. Res ipsa loquitur.

other further laws to enforce the constitutional provision so

encourage the formation and operation of enterprises fully

On the other hand, Sec. 10, second par., Art. XII of the of

long as the contemplated statute squares with the

owned by Filipinos, as in the first paragraph, and the State

the 1987 Constitution is a mandatory, positive command

Constitution. Minor details may be left to the legislature

still needs legislation to regulate and exercise authority

which is complete in itself and which needs no further

without impairing the self-executing nature of constitutional

over foreign investments within its national jurisdiction, as

guidelines

provisions.

in the third paragraph, then a fortiori, by the same logic,

enforcement. From its very words the provision does not

In self-executing constitutional provisions, the legislature

the second paragraph can only be self-executing as it

require any legislation to put it in operation. It is per

may still enact legislation to facilitate the exercise of

does not by its language require any legislation in order to

se judicially enforceable When our Constitution mandates

powers directly granted by the constitution, further the

give preference to qualified Filipinos in the grant of rights,

that [i]n the grant of rights, privileges, and concessions

operation of such a provision, prescribe a practice to be

privileges and concessions covering the national economy

covering national economy and patrimony, the State shall

used for its enforcement, provide a convenient remedy for

and patrimony. A constitutional provision may be self-

give preference to qualified Filipinos, it means just that —

MR. NOLLEDO Yes,

19

Inc. v. Morato

29

refers to

conditions under which business may be done. For

16

Subsequent legislation however does not

Tolentino v. Secretary of Finance

26

or

cites provisions on the promotion of

implementing

33

laws

31

the vital role

A reading of these

or

rules

for

its

the protection of the rights secured or the determination

executing in one part and non-self-executing in another.

thereof, or place reasonable safeguards around the

Even the cases cited by respondents holding that certain

Constitution declares that a right exists in certain specified

exercise of the right. The mere fact that legislation may

constitutional

of

circumstances an action may be maintained to enforce

supplement and add to or prescribe a penalty for the

principles and policies, which are basically not self-

such right notwithstanding the absence of any legislation

violation of a self-executing constitutional provision does

executing and only placed in the Constitution as moral

on the subject; consequently, if there is no statute

not render such a provision ineffective in the absence of

incentives to legislation, not as judicially enforceable rights

especially enacted to enforce such constitutional right,

such legislation. The omission from a constitution of any

— are simply not in point. Basco v. Philippine Amusements

such right enforces itself by its own inherent potency and

express provision for a remedy for enforcing a right or

and

Gaming

provisions

are

merely

Corporation 20 speaks

statements

of

constitutional

qualified Filipinos shall be preferred. And when our

puissance, and from which all legislations must take their

bearings. Where there is a right there is a remedy. Ubi jus

headquarters. When the American forces returned to

This is very clear from the proceedings of the 1986

ibi remedium.

recapture Manila the hotel was selected by the Japanese

Constitutional Commission

As regards our national patrimony, a member of the 1986

together with Intramuros as the two (2) places fro their final

THE PRESIDENT. Commissioner Davide is recognized.

stand. Thereafter, in the 1950′s and 1960′s, the hotel

MR. DAVIDE. I would like to introduce an amendment to

The patrimony of the Nation that should be conserved and

became the center of political activities, playing host to

the Nolledo amendment. And the amendment would

developed refers not only to out rich natural resources but

almost every political convention. In 1970 the hotel

consist in substituting the words “QUALIFIED FILIPINOS”

also to the cultural heritage of out race. It also refers to our

reopened after a renovation and reaped numerous

with the following: “CITIZENS OF THE PHILIPPINES OR

intelligence in arts, sciences and letters. Therefore, we

international recognitions, an acknowledgment of the

CORPORATIONS

should develop not only our lands, forests, mines and

Filipino talent and ingenuity. In 1986 the hotel was the site

CAPITAL OR CONTROLLING STOCK IS WHOLLY

other natural resources but also the mental ability or

of a failed coup d’ etat where an aspirant for vice-president

OWNED BY SUCH CITIZENS.

faculty of our people.

was “proclaimed” President of the Philippine Republic.

xxx xxx xxx

We agree. In its plain and ordinary meaning, the term

For more than eight (8) decades Manila Hotel has bore

MR.

patrimony pertains to heritage. 35 When the Constitution

mute witness to the triumphs and failures, loves and

proponent is agreeable, but we have to raise a question.

speaks of national patrimony, it refers not only to the

frustrations of the Filipinos; its existence is impressed with

Suppose it is a corporation that is 80-percent Filipino, do

natural resources of the Philippines, as the Constitution

public interest; its own historicity associated with our

we not give it preference?

could have very well used the term natural resources, but

struggle for sovereignty, independence and nationhood.

MR. DAVIDE. The Nolledo amendment would refer to an

also to the cultural heritage of the Filipinos.

Verily, Manila Hotel has become part of our national

individual Filipino. What about a corporation wholly owned

Manila Hotel has become a landmark — a living

economy and patrimony. For sure, 51% of the equity of the

by Filipino citizens?

testimonial of Philippine heritage. While it was restrictively

MHC comes within the purview of the constitutional shelter

MR. MONSOD. At least 60 percent, Madam President.

an American hotel when it first opened in 1912, it

for it comprises the majority and controlling stock, so that

MR. DAVIDE. Is that the intention?

immediately evolved to be truly Filipino, Formerly a

anyone who acquires or owns the 51% will have actual

MR. MONSOD. Yes, because, in fact, we would be limiting

concourse for the elite, it has since then become the

control and management of the hotel. In this instance, 51%

it if we say that the preference should only be 100-percent

venue of various significant events which have shaped

of the MHC cannot be disassociated from the hotel and the

Filipino.

Philippine history. It was called the Cultural Center of the

land on which the hotel edifice stands. Consequently, we

MR: DAVIDE. I want to get that meaning clear because

1930′s. It was the site of the festivities during the

cannot sustain respondents’ claim that the Filipino First

“QUALIFIED FILIPINOS” may refer only to individuals and

inauguration of the Philippine Commonwealth. Dubbed as

Policy provision is not applicable since what is being sold

not to juridical personalities or entities.

the Official Guest House of the Philippine Government. it

is only 51% of the outstanding shares of the corporation,

MR. MONSOD. We agree, Madam President.

plays host to dignitaries and official visitors who are

not the Hotel building nor the land upon which the building

xxx xxx xxx

stands. 38

MR. RODRIGO. Before we vote, may I request that the

The history of the hotel has been chronicled in the

The argument is pure sophistry. The term qualified

amendment be read again.

book The Manila Hotel: The Heart and Memory of a

Filipinos as used in Our Constitution also includes

MR. NOLLEDO. The amendment will read: “IN THE

City. 37 During World War II the hotel was converted by the

corporations at least 60% of which is owned by Filipinos.

GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS

Constitutional Commission

34

explains —

accorded the traditional Philippine hospitality.

Japanese

Military

Administration

into

36

a

military

MONSOD.

COVERING

OR

Madam

THE

ASSOCIATIONS

President,

NATIONAL

WHOSE

apparently

the

39

ECONOMY

AND

PATRIMONY, THE STATE SHALL GIVE PREFERENCE

The

the

constitutional provision — by the government itself — is

TO QUALIFIED FILIPINOS.” And the word “Filipinos” here,

Constitutional Commission regarding the subject provision

only too distressing. To adopt such a line of reasoning is to

as intended by the proponents, will include not only

was still further clarified by Commissioner Nolledo 43 —

renounce

individual Filipinos but also Filipino-controlled entities or

Paragraph 2 of Section 10 explicitly mandates the “Pro-

Constitution. For, even some of the provisions of the

entities fully-controlled by Filipinos. 40

Filipino” bias in all economic concerns. It is better known

Constitution which evidently need implementing legislation

The phrase preference to qualified Filipinos was explained

as the FILIPINO FIRST Policy . . . This provision was

have juridical life of their own and can be the source of a

thus —

never found in previous Constitutions . . . .

judicial remedy. We cannot simply afford the government a

MR. FOZ. Madam President, I would like to request

The term “qualified Filipinos” simply means that preference

defense that arises out of the failure to enact further

Commissioner Nolledo to please restate his amendment

shall be given to those citizens who can make a viable

enabling, implementing or guiding legislation. In fine, the

so that I can ask a question.

exchange

of

views

in

the

sessions

of

the

duty

to

ensure

faithfulness

to

the

contribution to the common good, because of credible

discourse of Fr. Joaquin G. Bernas, S.J., on constitutional

RIGHTS,

competence and efficiency. It certainly does NOT mandate

government is apt —

PRIVILEGES AND CONCESSIONS COVERING THE

the pampering and preferential treatment to Filipino

The executive department has a constitutional duty to

NATIONAL ECONOMY AND PATRIMONY, THE STATE

citizens or organizations that are incompetent or inefficient,

implement laws, including the Constitution, even before

SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.”

since such an indiscriminate preference would be counter

Congress acts — provided that there are discoverable

MR FOZ. In connection with that amendment, if a foreign

productive and inimical to the common good.

legal standards for executive action. When the executive

enterprise is qualified and a Filipino enterprise is also

In the granting of economic rights, privileges, and

acts, it must be guided by its own understanding of the

qualified, will the Filipino enterprise still be given a

concessions, when a choice has to be made between a

constitutional command and of applicable laws. The

preference?

“qualified foreigner” end a “qualified Filipino,” the latter

responsibility

MR. NOLLEDO. Obviously.

shall be chosen over the former.”

Constitution and the laws is not the sole prerogative of

MR. FOZ. If the foreigner is more qualified in some

Lastly, the word qualified is also determinable. Petitioner

Congress. If it were, the executive would have to ask

aspects than the Filipino enterprise, will the Filipino still be

was so considered by respondent GSIS and selected as

Congress, or perhaps the Court, for an interpretation every

preferred?

one of the qualified bidders. It was pre-qualified by

time the executive is confronted by a constitutional

MR. NOLLEDO. The answer is “yes.”

respondent GSIS in accordance with its own guidelines so

command. That is not how constitutional government

MR. FOZ. Thank you, 41

that the sole inference here is that petitioner has been

operates. 45

Expounding further on the Filipino First Policy provision

found to be possessed of proven management expertise in

Respondents further argue that the constitutional provision

Commissioner Nolledo continues —

the hotel industry, or it has significant equity ownership in

is addressed to the State, not to respondent GSIS which

MR. NOLLEDO. Yes, Madam President. Instead of

another hotel company, or it has an overall management

by itself possesses a separate and distinct personality.

“MUST,” it will be “SHALL — THE STATE SHALL GlVE

and marketing proficiency to successfully operate the

This argument again is at best specious. It is undisputed

PREFERENCE

Manila Hotel. 44

that the sale of 51% of the MHC could only be carried out

embodies the so-called “Filipino First” policy. That means

The penchant to try to whittle away the mandate of the

with the prior approval of the State acting through

that Filipinos should be given preference in the grant of

Constitution by arguing that the subject provision is not

respondent Committee on Privatization. As correctly

concessions, privileges and rights covering the national

self-executory and requires implementing legislation is

pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone

patrimony. 42

quite

makes the sale of the assets of respondents GSIS and

MR.

NOLLEDO.

“IN

TO

THE

GRANT

QUALIFIED

OF

FILIPINOS.

This

disturbing.

The

attempt

to

violate

a

clear

for

reading

and

understanding

the

MHC a “state action.” In constitutional jurisprudence, the

an assurance that the highest bidder will be declared the

Filipino matches the bid of a foreign firm the award should

acts of persons distinct from the government are

winning bidder. Resultantly, respondents are not bound to

go to the Filipino. It must be so if we are to give life and

considered “state action” covered by the Constitution (1)

make the award yet, nor are they under obligation to enter

meaning to the Filipino First Policy provision of the 1987

when the activity it engages in is a “public function;“ (2)

into one with the highest bidder. For in choosing the

Constitution. For, while this may neither be expressly

when the government is so significantly involved with the

awardee respondents are mandated to abide by the

stated nor contemplated in the bidding rules, the

private actor as to make the government responsible for

dictates of the 1987 Constitution the provisions of which

constitutional fiat is, omnipresent to be simply disregarded.

his action; and, (3) when the government has approved or

are presumed to be known to all the bidders and other

To ignore it would be to sanction a perilous skirting of the

authorized the action. It is evident that the act of

interested parties.

basic law.

respondent GSIS in selling 51% of its share in respondent

Adhering to the doctrine of constitutional supremacy, the

This Court does not discount the apprehension that this

MHC comes under the second and third categories of

subject constitutional provision is, as it should be, impliedly

policy

“state action.” Without doubt therefore the transaction.

written in the bidding rules issued by respondent GSIS,

Constitution and laws of the Philippines are understood to

although entered into by respondent GSIS, is in fact a

lest the bidding rules be nullified for being violative of the

be always open to public scrutiny. These are given factors

transaction of the State and therefore subject to the

Constitution. It is a basic principle in constitutional law that

which investors must consider when venturing into

constitutional command. 46

all laws and contracts must conform with the fundamental

business in a foreign jurisdiction. Any person therefore

When the Constitution addresses the State it refers not

law of the land. Those which violate the Constitution lose

desiring to do business in the Philippines or with any of its

only to the people but also to the government as elements

their reason for being.

agencies or instrumentalities is presumed to know his

of the State. After all, government is composed of three (3)

Paragraph V. J. 1 of the bidding rules provides that [if] for

rights and obligations under the Constitution and the laws

divisions of power — legislative, executive and judicial.

any reason the Highest Bidder cannot be awarded the

of the forum.

Accordingly, a constitutional mandate directed to the State

Block of Shares, GSIS may offer this to other Qualified

The argument of respondents that petitioner is now

is correspondingly directed to the three(3) branches of

Bidders that have validly submitted bids provided that

estopped from questioning the sale to Renong Berhad

government. It is undeniable that in this case the subject

these Qualified Bidders are willing to match the highest bid

since petitioner was well aware from the beginning that a

constitutional injunction is addressed among others to the

in terms of price per share. 47 Certainly, the constitutional

foreigner could participate in the bidding is meritless.

Executive

Department

investors.

But

the

mandate itself is reason enough not to award the block of

Undoubtedly, Filipinos and foreigners alike were invited to

shares immediately to the foreign bidder notwithstanding

the bidding. But foreigners may be awarded the sale only if

State.

its submission of a higher, or even the highest, bid. In fact,

no Filipino qualifies, or if the qualified Filipino fails to match

It should be stressed that while the Malaysian firm offered

we cannot conceive of a stronger reason than the

the highest bid tendered by the foreign entity. In the case

the higher bid it is not yet the winning bidder. The bidding

constitutional injunction itself.

before us, while petitioner was already preferred at the

rules expressly provide that the highest bidder shall only

In the instant case, where a foreign firm submits the

inception of the bidding because of the constitutional

be declared the winning bidder after it has negotiated and

highest bid in a public bidding concerning the grant of

mandate, petitioner had not yet matched the bid offered by

executed the necessary contracts, and secured the

rights, privileges and concessions covering the national

Renong Berhad. Thus it did not have the right or

requisite

the

GSIS,

foreign

a

Since

respondent

discourage

government instrumentality deriving its authority from the

approvals.

and

may

“Filipino

First

economy and patrimony, thereby exceeding the bid of a

personality then to compel respondent GSIS to accept its

Policy provision of the Constitution bestows preference on

Filipino, there is no question that the Filipino will have to

earlier bid. Rightly, only after it had matched the bid of the

qualified Filipinos the mere tending of the highest bid is not

be allowed to match the bid of the foreign entity. And if the

foreign firm and the apparent disregard by respondent

GSIS of petitioner’s matching bid did the latter have a

to defend. It is worth emphasizing that it is not the intention

take precedence over non-material values. A commercial,

cause of action.

of this Court to impede and diminish, much less

nay even a budgetary, objective should not be pursued at

Besides, there is no time frame for invoking the

undermine, the influx of foreign investments. Far from it,

the expense of national pride and dignity. For the

constitutional safeguard unless perhaps the award has

the Court encourages and welcomes more business

Constitution enshrines higher and nobler non-material

been finally made. To insist on selling the Manila Hotel to

opportunities but avowedly sanctions the preference for

values. Indeed, the Court will always defer to the

foreigners when there is a Filipino group willing to match

Filipinos whenever such preference is ordained by the

Constitution in the proper governance of a free society;

the bid of the foreign group is to insist that government be

Constitution. The position of the Court on this matter could

after all, there is nothing so sacrosanct in any economic

treated as any other ordinary market player, and bound by

have not been more appropriately articulated by Chief

policy as to draw itself beyond judicial review when the

its mistakes or gross errors of judgment, regardless of the

Justice Narvasa —

Constitution is involved. 49

consequences

The

As scrupulously as it has tried to observe that it is not its

Nationalism is inherent, in the very concept of the

miscomprehension of the Constitution is regrettable. Thus

to

the

Filipino

people.

function to substitute its judgment for that of the legislature

Philippines being a democratic and republican state, with

we would rather remedy the indiscretion while there is still

or the executive about the wisdom and feasibility of

sovereignty residing in the Filipino people and from whom

an opportunity to do so than let the government develop

legislation economic in nature, the Supreme Court has not

all government authority emanates. In nationalism, the

the habit of forgetting that the Constitution lays down the

been spared criticism for decisions perceived as obstacles

happiness and welfare of the people must be the goal. The

basic conditions and parameters for its actions.

to economic progress and development . . . in connection

nation-state

Since petitioner has already matched the bid price

with a temporary injunction issued by the Court’s First

interpretation of any constitutional provision must adhere

tendered by Renong Berhad pursuant to the bidding rules,

Division against the sale of the Manila Hotel to a Malaysian

to such basic concept. Protection of foreign investments,

respondent GSIS is left with no alternative but to award to

Firm and its partner, certain statements were published in

while laudible, is merely a policy. It cannot override the

petitioner the block of shares of MHC and to execute the

a major daily to the effect that injunction “again

demands of nationalism. 50

necessary agreements and documents to effect the sale in

demonstrates that the Philippine legal system can be a

The Manila Hotel or, for that matter, 51% of the MHC, is

accordance not only with the bidding guidelines and

major obstacle to doing business here.

not just any commodity to be sold to the highest bidder

procedures but with the Constitution as well. The refusal of

Let it be stated for the record once again that while it is no

solely for the sake of privatization. We are not talking

respondent GSIS to execute the corresponding documents

business of the Court to intervene in contracts of the kind

about an ordinary piece of property in a commercial

with petitioner as provided in the bidding rules after the

referred to or set itself up as the judge of whether they are

district. We are talking about a historic relic that has hosted

latter has matched the bid of the Malaysian firm clearly

viable or attainable, it is its bounden duty to make sure that

many of the most important events in the short history of

constitutes grave abuse of discretion.

can

have

no

higher

purpose.

Any

they do not violate the Constitution or the laws, or are not

the Philippines as a nation. We are talking about a hotel

Philippine

adopted or implemented with grave abuse of discretion

where heads of states would prefer to be housed as a

nationalism. It is embodied in the 1987 Constitution not

amounting to lack or excess of jurisdiction. It will never

strong manifestation of their desire to cloak the dignity of

merely to be used as a guideline for future legislation but

shirk that duty, no matter how buffeted by winds of unfair

the highest state function to their official visits to the

primarily to be enforced; so must it be enforced. This Court

and ill-informed criticism. 48

Philippines. Thus the Manila Hotel has played and

as the ultimate guardian of the Constitution will never

Privatization of a business asset for purposes of

continues to play a significant role as an authentic

shun, under any reasonable circumstance, the duty of

enhancing its business viability and preventing further

repository of twentieth century Philippine history and

upholding the majesty of the Constitution which it is tasked

losses, regardless of the character of the asset, should not

culture. In this sense, it has become truly a reflection of the

The Filipino

First

Policy is

a

product

of

Filipino soul — a place with a history of grandeur; a most

Hotel Corporation at P44.00 per share and thereafter to

and possessions of the people. It is to be noted that the

historical setting that has played a part in the shaping of a

execute the necessary clearances and to do such other

framers did not stop with conservation. They knew that

country. 51

acts and deeds as may be necessary for purpose.

conservation alone does not spell progress; and that this

This Court cannot extract rhyme nor reason from the

SO ORDERED.

may be achieved only through development as a

determined efforts of respondents to sell the historical

Regalado, Davide, Jr., Romero, Kapunan, Francisco and

correlative factor to assure to the people not only the

landmark — this Grand Old Dame of hotels in Asia — to a

Hermosisima, Jr., JJ., concur.

exclusive ownership, but also the exclusive benefits of their national patrimony). 3

total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be

Separate Opinions

Moreover, the concept of national patrimony has been

less than mephistophelian for it is, in whatever manner

PADILLA, J., concurring:

viewed as referring not only to our rich natural resources

viewed, a veritable alienation of a nation’s soul for some

I concur with the ponencia of Mr. Justice Bellosillo. At the

but

pieces of foreign silver. And so we ask: What advantage,

same time, I would like to expound a bit more on the

race. 4

which cannot be equally drawn from a qualified Filipino,

concept of national patrimony as including within its scope

There is no doubt in my mind that the Manila Hotel is very

can be gained by the Filipinos Manila Hotel — and all that

and meaning institutions such as the Manila Hotel.

much a part of our national patrimony and, as such,

it stands for — is sold to a non-Filipino? How much of

It is argued by petitioner that the Manila Hotel comes

deserves constitutional protection as to who shall own it

national pride will vanish if the nation’s cultural heritage is

under “national patrimony” over which qualified Filipinos

and benefit from its operation. This institution has played

entrusted to a foreign entity? On the other hand, how

have the preference, in ownership and operation. The

an important role in our nation’s history, having been the

much dignity will be preserved and realized if the national

Constitutional provision on point states:

venue of many a historical event, and serving as it did, and

patrimony is safekept in the hands of a qualified, zealous

xxx xxx xxx

as it does, as the Philippine Guest House for visiting

and well-meaning Filipino? This is the plain and simple

In the grant of rights, privileges, and concessions covering

foreign heads of state, dignitaries, celebrities, and others. 5

meaning of the Filipino First Policy provision of the

the national economy and patrimony, the State shall Give

It is therefore our duty to protect and preserve it for future

Philippine Constitution. And this Court, heeding the clarion

preference to qualified Filipinos. 1

generations of Filipinos. As President Manuel L. Quezon

call of the Constitution and accepting the duty of being the

Petitioner’s argument, I believe, is well taken. Under the

once said, we must exploit the natural resources of our

elderly watchman of the nation, will continue to respect

1987 Constitution, “national patrimony” consists of the

country, but we should do so with. an eye to the welfare of

and protect the sanctity of the Constitution.

natural resources provided by Almighty God (Preamble) in

the future generations. In other words, the leaders of today

WHEREFORE, respondents GOVERNMENT SERVICE

our territory (Article I) consisting of land, sea, and

are the trustees of the patrimony of our race. To preserve

INSURANCE

the

cultural

heritage

of

our

HOTEL

air. study of the 1935 Constitution, where the concept of

our national patrimony and reserve it for Filipinos was the

“national patrimony” originated, would show that its

intent of the distinguished gentlemen who first framed our

OFFICE

THE

MANILA

to

CORPORATION, COMMITTEE ON PRIVATIZATION and OF

SYSTEM,

2

also

CORPORATE

framers decided to adopt the even more comprehensive

Constitution. Thus, in debating the need for nationalization

COUNSEL are directed to CEASE and DESIST from

GOVERNMENT

expression “Patrimony of the Nation” in the belief that the

of our lands and natural resources, one expounded that

selling 51% of the shares of the Manila Hotel Corporation

phrase encircles a concept embracing not only their

we should “put more teeth into our laws, and; not make the

to RENONG BERHAD, and to ACCEPT the matching bid

natural resources of the country but practically everything

nationalization of our lands and natural resources a

of petitioner MANILA PRINCE HOTEL CORPORATION to

that belongs to the Filipino people, the tangible and the

subject

purchase the subject 51% of the shares of the Manila

material as well as the intangible and the spiritual assets

enactment” 6 To quote further: “Let not our children be

of ordinary legislation but

of constitutional

mere tenants and trespassers in their own country. Let us

Filipino people to preserve our national patrimony,

Filipino to match the foreign bid for, as a particular matter, I

preserve and bequeath to them what is rightfully theirs,

including our historical and cultural heritage in the hands of

cannot see any bid that literally calls for millions of dollars

free from all foreign liens and encumbrances”. 7

Filipinos.

to be at par (to the last cent) with another. The magnitude

Now, a word on preference. In my view “preference to

of the magnitude of the bids is such that it becomes hardly

qualified Filipinos”, to be meaningful, must refer not only to

READ

things that are peripheral, collateral, or tangential. It must

Commercial Law

CASE

DIGESTS: Filipino

First

Policy; Special

possible for the competing bids to stand exactly “equal” which alone, under the dissenting view, could trigger the

touch and affect the very “heart of the existing order.” In

right of preference.

the field of public bidding in the acquisition of things that

VITUG, J., concurring:

It is most unfortunate that Renong Berhad has not been

pertain to the national patrimony, preference to qualified

I agree with Mr. Justice Josue N. Bellosillo on his clear-cut

spared this great disappointment, a letdown that it did not

Filipinos must allow a qualified Filipino to match or equal

statements, shared by Mr. Justice Reynato S. Puno in a

deserve, by a simple and timely advise of the proper rules

the higher bid of a non-Filipino; the preference shall not

well written separate (dissenting) opinion, that:

of

operate only when the bids of the qualified Filipino and the

First, the provision in our fundamental law which provides

implications of the proposed transaction. It is also

non-Filipino are equal in which case, the award should

that “(I)n the grant of rights, privileges, and concessions

regrettable that the Court at time is seen, to instead, be the

undisputedly be made to the qualified Filipino. The

covering the national economy and patrimony, the State

refuge for bureaucratic inadequate which create the

Constitutional preference should give the qualified Filipino

shall give preference to qualified Filipinos” is self-

perception

an opportunity to match or equal the higher bid of the non-

executory. The provision verily does not need, although it

controversies.

Filipino bidder if the preference of the qualified Filipino

can obviously be amplified or regulated by, an enabling

All told, I am constrained to vote for granting the petition.

bidder is to be significant at all.

law or a set of rules.

It is true that in this present age of globalization of attitude

Second, the term “patrimony” does not merely refer to the

READ

towards foreign investments in our country, stress is on the

country’s natural resources but also to its cultural heritage.

Commercial Law

elimination of barriers to foreign trade and investment in

A “historical landmark,” to use the words of Mr. Justice

the country. While government agencies, including the

Justo P. Torres, Jr., Manila Hotel has now indeed become

MENDOZA, J., concurring in the judgment:

courts should re-condition their thinking to such a trend,

part of Philippine heritage.

I take the view that in the context of the present

and make it easy and even attractive for foreign investors

Third, the act of the Government Service Insurance

controversy the only way to enforce the constitutional

to come to our shores, yet we should not preclude

System (“GSIS”), a government entity which derives its

mandate that “[i]n the grant of rights, privileges and

ourselves from reserving to us Filipinos certain areas

authority from the State, in selling 51% of its share in MHC

concessions covering the national patrimony the State

where our national identity, culture and heritage are

should be considered an act of the State subject to the

shall give preference to qualified Filipinos” 1 is to allow

involved. In the hotel industry, for instance, foreign

Constitutional mandate.

petitioner Philippine corporation to equal the bid of the

investors have established themselves creditably, such as

On the pivotal issue of the degree of “preference to

Malaysian firm Renong Berhad for the purchase of the

in the Shangri-La, the Nikko, the Peninsula, and Mandarin

qualified Filipinos,” I find it somewhat difficult to take the

controlling

Hotels. This should not stop us from retaining 51% of the

same path traversed by the forceful reasoning of Justice

Corporation. Indeed, it is the only way a qualified Filipino

capital stock of the Manila Hotel Corporation in the hands

Puno. In the particular case before us, the only meaningful

of Philippine corporation can be given preference in the

of Filipinos. This would be in keeping with the intent of the

preference, it seems, would really be to allow the qualified

1

bidding

along

that

CASE

it

with

even

the

peculiar

takes

DIGESTS: Filipino

shares

of

stocks

in

on

First

the

constitutional

non-justiciable

Policy; Special

Manila

Hotel

enjoyment of a right, privilege or concession given by the

alien vendors in the public markets even if there were

Nor should there be any doubt that by awarding the shares

State, by favoring it over a foreign national corporation.

available other stalls as good as those occupied by aliens.

of stocks to petitioner we would be trading competence

Under the rules on public bidding of the Government

“The law, apparently, is applicable whenever there is a

and capability for nationalism. Both petitioner and the

Service and Insurance System, if petitioner and the

conflict of interest between Filipino applicants and aliens

Malaysian

Malaysian firm had offered the same price per share,

for lease of stalls in public markets, in which situation the

prequalification process.

“priority [would be given] to the bidder seeking the larger

right to preference immediately arises.” 8

bidding that is sought to be modified by enabling petitioner

ownership interest in MHC,” so that petitioner bid for

Our legislation on the matter thus antedated by a quarter

to up its bid to equal the highest bid.

more shares, it would be preferred to the Malaysian

of a century efforts began only in the 1970s in America to

Nor, finally, is there any basis for the suggestion that to

corporation for that reason and not because it is a

realize the promise of equality, through affirmative action

allow a Filipino bidder to match the highest bid of an alien

Philippine corporation. Consequently, it is only in cases

and reverse discrimination programs designed to remedy

could encourage speculation, since all that a Filipino entity

like the present one, where an alien corporation is the

past discrimination against colored people in such areas

would then do would be not to make a bid or make only a

2

9

firm

are

qualified, 12

having

hurdled

the

It is only the result of the public

highest bidder, that preferential treatment of the Philippine

as employment, contracting and licensing. Indeed, in vital

token one and, after it is known that a foreign bidder has

corporation is mandated not by declaring it winner but by

areas of our national economy, there are situations in

submitted the highest bid, make an offer matching that of

allowing it “to match the highest bid in terms of price per

which the only way to place Filipinos in control of the

the foreign firm. This is not possible under the rules on

share” before it is awarded the shares of stocks. That, to

national economy as contemplated in the Constitution

is

public bidding of the GSIS. Under these rules there is a

me, is what “preference to qualified Filipinos” means in the

to give them preferential treatment where they can at least

minimum bid required (P36.87 per share for a range of 9 to

context of this case — by favoring Filipinos whenever they

stand on equal footing with aliens.

15 million shares). 13 Bids below the minimum will not be

are at a disadvantage vis-a-vis foreigners.

There need be no fear that thus preferring Filipinos would

considered. On the other hand, if the Filipino entity, after

This was the meaning given in Co Chiong v. Cuaderno 4 to

either invite foreign retaliation or deprive the country of the

passing the prequalification process, does not submit a

a 1947 statute giving “preference to Filipino citizens in the

benefit of foreign capital or know-how. We are dealing

bid, he will not be allowed to match the highest bid of the

lease of public market stalls.” 5 This Court upheld the

here not with common trades of common means of

foreign firm because this is a privilege allowed only to

cancellation of existing leases covering market stalls

livelihood which are open to aliens in our midst,

occupied by persons who were not Filipinos and the award

the sale of government property, which is like the grant of

is, to say the least, fanciful and has no basis in fact.

thereafter of the stalls to qualified Filipino vendors as

government largess of benefits and concessions covering

For the foregoing reasons, I vote to grant the petition.

ordered

Similarly,

the national economy” and therefore no one should

in Vda. de Salgado v. De la Fuente, 6 this Court sustained

begrudge us if we give preferential treatment to our

READ

the validity of a municipal ordinance passed pursuant to

citizens. That at any rate is the command of the

Commercial Law

the statute (R.A. No. 37), terminating existing leases of

Constitution. For the Manila Hotel is a business owned by

public market stalls and granting preference to Filipino

the Government. It is being privatized. Privatization should

TORRES, JR., J., separate opinion:

citizens in the issuance of new licenses for the occupancy

result in the relinquishment of the business in favor of

Constancy in law is not an attribute of a judicious mind. I

of the stalls. In Chua Lao v. Raymundo, the preference

private individuals and groups who are Filipino citizens, not

say this as we are not confronted in the case at bar with

granted under the statute was held to apply to cases in

in favor of aliens.

legal and constitutional issues — and yet I am driven so to

3

by

the

Department

of

Finance.

7

which Filipino vendors sought the same stalls occupied by

11

10

but with

those who have “validly submitted bids.” 14 The suggestion

CASE

DIGESTS: Filipino

First

Policy; Special

speak on the side of history. The reason perhaps is due to

the belief that in the words of Justice Oliver Wendell

MR. MONSOD. We also wanted to add, as Commissioner

I subscribe to the view that history, culture, heritage, and

Holmes, Jr., a “page of history is worth a volume of logic.”

Villegas said, this committee and this body already

traditions are not legislated and is the product of events,

I will, however, attempt to share my thoughts on whether

approved what is known as the Filipino First policy which

customs, usages and practices. It is actually a product of

the Manila Hotel has a historical and cultural aspect within

was suggested by Commissioner de Castro. So that it is

growth and acceptance by the collective mores of a race. It

the meaning of the constitution and thus, forming part of

now in our Constitution (Vol. IV, Records of the

is the spirit and soul of a people.

the “patrimony of the nation”.

Constitutional Commission, p. 225).

The Manila Hotel is part of our history, culture and

Section 10, Article XII of the 1987 Constitution provides:

Commissioner Jose Nolledo explaining the provision

heritage. Every inch of the Manila Hotel is witness to

xxx xxx xxx

adverted to above, said:

historic events (too numerous to mention) which shaped

In the grant of rights, privileges, and concessions covering

MR. NOLLEDO. In the grant of rights, privileges and

our history for almost 84 years.

the national economy and patrimony, the State shall give

concessions

and

As I intimated earlier, it is not my position in this opinion, to

preference to qualified Filipinos.

patrimony, the State shall give preference to qualified

examine the single instances of the legal largese which

The State shall regulate and exercise authority over

Filipinos.

have given rise to this controversy. As I believe that has

foreign investments within its national goals and priorities.

MR. FOZ. In connection with that amendment, if a foreign

been exhaustively discussed in the ponencia. Suffice it to

The foregoing provisions should be read in conjunction

enterprise is qualified and the Filipinos enterprise is also

say at this point that the history of the Manila Hotel should

with Article II of the same Constitution pertaining to

qualified, will the Filipino enterprise still be given a

not be placed in the auction block of a purely business

“Declaration of Principles and State Policies” which ordain

preference?

transaction, where profits subverts the cherished historical

—

MR. NOLLEDO. Obviously.

values of our people.

The State shall develop a self-reliant and independent

MR. FOZ. If the foreigner is more qualified in some

As a historical landmark in this “Pearl of the Orient Seas”,

national economy effectively by Filipinos. (Sec. 19).

aspects than the Filipino enterprise, will the Filipino still be

it has its enviable tradition which, in the words of the

Interestingly, the matter of giving preference to “qualified

preferred:?

philosopher Salvador de Madarriaga tradition is “more of a

Filipinos” was one of the highlights in the 1987 Constitution

MR. NOLLEDO. The answer is “yes”. (Vol. III, p. 616,

river than a stone, it keeps flowing, and one must view the

Commission proceedings thus:

Records of the Constitutional Commission).

flowing , and one must view the flow of both directions. If

xxx xxx xxx

The nationalistic provisions of the 1987 Constitution reflect

you look towards the hill from which the river flows, you

MR. NOLLEDO. The Amendment will read: “IN THE

the history and spirit of the Malolos Constitution of 1898,

see tradition in the form of forceful currents that push the

GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS

the 1935 Constitution and the 1973 Constitutions. That we

river or people towards the future, and if you look the other

COVERING

covering

the

national

economy

have no reneged on this nationalist policy is articulated in

way, you progress.”

PATRIMONY, THE STATE SHALL GIVE PREFERENCE

one of the earliest case, this Court said —

Indeed, tradition and progress are the same, for progress

TO QUALIFIED FILIPINOS”. And the word “Filipinos” here,

The nationalistic tendency is manifested in various

depends on the kind of tradition. Let us not jettison the

as intended by the proponents, will include not only

provisions of the Constitution. . . . It cannot therefore be

tradition of the Manila Hotel and thereby repeat our

individual Filipinos but also Filipino-Controlled entities fully

said that a law imbued with the same purpose and spirit

colonial history.

controlled

underlying many of the provisions of the Constitution is

I grant, of course the men of the law can see the same

unreasonable, invalid or unconstitutional (Ichong, et al. vs.

subject in different lights.

THE

by

NATIONAL

Filipinos

(Vol.

ECONOMY

III,

Constitutional Commission, p. 608).

Records

AND

of

the

Hernandez, et al., 101 Phil. 1155).

I remember, however, a Spanish proverb which says —

corporation, and Renong Berhad, Malaysian firm with ITT

Parties interested in bidding for MHC should be able to

“He is always right who suspects that he makes mistakes”.

Sheraton as operator, prequalified.

On this note, I say that if I have to make a mistake, I would

The bidding rules and procedures entitled “Guidelines and

and/or international marketing/reservation system for The

rather err upholding the belief that the Filipino be first

Procedures: Second Prequalification and Public Bidding of

Manila Hotel.

under his Constitution and in his own land.

the MHC Privatization” provide:

xxx xxx xxx

I vote GRANT the petition.

I INTRODUCTION AND HIGHLIGHTS

D. PREQUALIFICATION DOCUMENTS

PUNO, J., dissenting:

DETERMINING THE WINNING BIDDER/STRATEGIC

xxx xxx xxx

This is a. petition for prohibition and mandamus filed by

PARTNER

E. APPLICATION PROCEDURE

the

domestic

The party that accomplishes the steps set forth below will

1. DOCUMENTS AVAILABLE AT THE REGISTRATION

corporation, to stop the Government Service Insurance

be declared the Winning Bidder/Strategic Partner and will

OFFICE

System (GSIS) from selling the controlling shares of the

be awarded the Block of Shares:

The prequalification documents can be secured at the

Manila Hotel Corporation to a foreign corporation.

First — Pass the prequalification process;

Registration Office between 9:00 AM to 4:00 PM during

Allegedly, the sale violates the second paragraph of

Second — Submit the highest bid on a price per share

working days within the period specified in Section III.

section 10, Article XII of the Constitution.

basis for the Block of Shares;

Each set of documents consists of the following:

Respondent GSIS is a government-owned and controlled

Third — Negotiate and execute the necessary contracts

a. Guidelines and Procedures: Second Prequalification

corporation. It is the sole owner of the Manila Hotel which it

with GSIS/MHC not later than October 23, 1995;

and Public Bidding of the MHC Privatization

operates

xxx xxx xxx

b. Confidential Information Memorandum: The Manila

Manila

Prince

through

Hotel

its

Corporation,

subsidiary,

the

a

Manila

Hotel

2

provide access to the requisite management expertise

Corporation. Manila Hotel was included in the privatization

IV GUIDELINES FOR PREQUALIFICATION

program of the government. In 1995, GSIS proposed to

A.

sell to interested buyers 30% to 51% of its shares, ranging

PREQUALIFICATION

Conference

from 9,000,000 to 15,300,000 shares, in the Manila Hotel

The Winning Bidder/Strategic Partner will be expected to

xxx xxx xxx

Corporation. After the absence of bids at the first public

provide management expertise and/or an international

4. PREQUALIFICATION AND BIDDING CONFERENCE

bidding, the block of shares offered for sale was increased

marketing reservation system, and financial support to

A prequalification and bidding conference will be held at

from a maximum of 30% to 51%. Also, the winning bidder,

strengthen the profitability and performance of The Manila

The Manila Hotel on the date specified in Section III to

or the eventual “strategic partner” of the GSIS was

Hotel. In this context, the GSIS is inviting to the

allow the Applicant to seek clarifications and further

required to “provide management expertise and/or an

prequalification

foreign

information regarding the guidelines and procedures. Only

international marketing/reservation system, and financial

corporation, consortium/joint venture or juridical entity with

those who purchased the prequalification documents will

support to strengthen the profitability and performance of

at least one of the following qualifications:

be allowed in this conference. Attendance to this

the Manila Hotel” 1 The proposal was approved by

a. Proven management .expertise in the hotel industry; or

conference is strongly advised, although the Applicant will

respondent Committee on Privatization.

b. Significant equity ownership (i.e. board representation)

not be penalized if it does not attend.

In July 1995, a conference was held where prequalification

in another hotel company; or

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS

documents and the bidding rules were furnished interested

c. Overall management and marketing expertise to

The applicant should submit 5 sets of the prequalification

parties. Petitioner Manila Prince Hotel, a domestic

successfully operate the Manila Hotel.

documents (1 original set plus 4 copies) at the Registration

PARTIES

WHO

process

MAP

any

local

APPLY

and/or

Hotel Corporation FOR

c. Letter of Invitation. to the Prequalification and Bidding

Office between 9:00 AM to 4:00 PM during working days

consideration for being included in the shortlist is ground

details; improper accomplishment may be a sufficient basis

within the period specified in Section III.

for disqualification of the Applicant.

for disqualification.

F. PREQUALIFICATION PROCESS

V. GUIDELINES FOR THE PUBLIC BIDDING

2. During the Public Bidding, the Qualified Bidder will

1. The Applicant will be evaluated by the PBAC with the

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC

submit the Official Bid Form, which will indicate the offered

assistance of the TEC based on the Information Package

BIDDING

purchase price, in a sealed envelope marked “OFFICIAL

and other information available to the PBAC.

All parties in the shortlist of Qualified Bidders will be

BID.”

2. If the Applicant is a Consortium/Joint Venture, the

eligible to participate in the Public Bidding.

F. SUPPORTING DOCUMENTS

evaluation will consider the overall qualifications of the

B. BLOCK OF SHARES

During the Public Bidding, the following documents should

group, taking into account the contribution of each member

A range of Nine Million (9,000,000) to Fifteen Million Three

be submitted along with the bid in a separate envelop

to the venture.

Hundred

marked “SUPPORTING DOCUMENTS”:

3. The decision of the PBAC with respect to the results of

representing Thirty Percent to Fifty-One Percent (30%-

1. WRITTEN AUTHORITY TO BID (UNDER OATH).

the PBAC evaluation will be final.

51%) of the issued and outstanding shares of MHC, will be

If the Qualified Bidder is a corporation, the representative

4. The Applicant shall be evaluated according to the

offered in the Public Bidding by the GSIS. The Qualified

of the Qualified Bidder should submit a Board resolution

criteria set forth below:

Bidders will have the Option of determining the number of

which adequately authorizes such representative to bid for

a. Business management expertise, track record, and

shares within the range to bid for. The range is intended to

and in behalf of the corporation with full authority to

experience

attract bidders with different preferences and objectives for

perform such acts necessary or requisite to bind the

b. Financial capability.

the operation and management of The Manila Hotel.

Qualified Bidder.

c. Feasibility and acceptability of the proposed strategic

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE

If the Qualified Bidder is a Consortium/Joint Venture, each

plan for the Manila Hotel

BASIS

member of the Consortium/Joint venture should submit a

5. The PBAC will shortlist such number of Applicants as it

1. Bids will be evaluated on a price per share basis.The

Board resolution authorizing one of its members and such

may deem appropriate.

minimum bid required on a price per share basis for the

member’s representative to make the bid on behalf of the

6. The parties that prequalified in the first MHC public

Block of Shares is Thirty-Six Pesos and Sixty-Seven

group with full authority to perform such acts necessary or

bidding — ITT Sheraton, Marriot International Inc.,

Centavos (P36.67).

requisite to bind the Qualified Bidder.

Renaissance Hotels International Inc., consortium of

2. Bids should be in the Philippine currency payable to the

2. BID SECURITY

RCBC Capital/Ritz Carlton — may participate in the Public

GSIS.

a. The Qualified Bidder should deposit Thirty-Three Million

Bidding without having to undergo the prequalification

3. Bids submitted with an equivalent price per share below

Pesos (P33,000,00), in Philippine currency as Bid Security

process again.

the minimum required will not considered.

in the form of:

G. SHORTLIST OF QUALIFIED BIDDERS

D. TRANSFER COSTS

i. Manager’s check or unconditional demand draft payable

1. A notice of prequalification results containing the

xxx xxx xxx

to the “Government Service Insurance System” and issued

shortlist of Qualified Bidders will be posted at the

E. OFFICIAL BID FORM

by a reputable banking institution duly licensed to do

Registration Office at the date specified in Section III.

1. Bids must be contained in the prescribed Official Bid

business in the Philippines and acceptable to GSIS; or

2. In the case of a Consortium/Joint Venture, the

Form, a copy of which is attached as Annex IV. The

ii. Standby-by letter of credit issued by a reputable banking

withdrawal by member whose qualification was a material

Official Bid Form must be properly accomplished in all

institution acceptable to the GSIS.

Thousand

(15,300,000)

shares

of

stock

b. The GSIS will reject a bid if:

1. The Public Bidding will be held on September 7, 1995 at

1. After the closing time of 2:00 PM on the date of the

i. The bid does not have Bid Security; or

the following location:

Public Bidding, the PBAC will open all sealed envelopes

ii. The Bid Security accompanying the bid is for less than

New

the required amount.

Financial

c. If the Bid Security is in the form of a manager’s check or

Roxas Boulevard, Pasay City, Metro Manila.

incomplete/insufficient documents or document/s which

unconditional demand draft, the interest earned on the Bid

2. The Secretariat of the PBAC will be stationed at the

is/are not substantially in the form required by PBAC will

Security will be for the account of GSIS.

Public Bidding to accept any and all bids and supporting

be disqualified. The envelope containing their Official Bid

requirements. Representatives from the Commission on

Form will be immediately returned to the disqualified

Bidder/Strategic Partner, the Bid Security will be applied as

Audit and COP will be invited to witness the proceedings.

bidders.

the downpayment on the Qualified Bidder’s offered

3. The Qualified Bidder should submit its bid using the

2. The sealed envelopes marked “OFFICIAL BID” will be

purchase price.

Official Bid Form. The accomplished Official Bid Form

opened at 3:00 PM. The name of the bidder and the

e. The Bid Security of the Qualified Bidder will be returned

should be submitted in a sealed envelope marked

amount of its bid price will be read publicly as the

immediately after the Public Bidding if the Qualified Bidder

“OFFICIAL BID.”

envelopes are opened.

is not declared the Highest Bidder.

4. The Qualified Bidder should submit the following

3. Immediately following the reading of the bids, the PBAC

f. The Bid Security will be returned by October 23, 1995 if

documents

will formally announce the highest bid and the Highest

the Highest Bidder is unable to negotiate and execute with

“SUPPORTING BID DOCUMENTS”

Bidder.

GSIS/MHC

a. Written Authority Bid

4. The highest bid will be, determined on a price per share

Marketing/Reservation System Contract or other types of

b. Bid Security

basis. In the event of a tie wherein two or more bids have

contract specified by the Highest Bidder in its strategic

5. The two sealed envelopes marked “OFFICIAL BID” and

the same equivalent price per share, priority will be given

plan for The Manila Hotel.

“SUPPORTING BID DOCUMENTS” must be submitted

to the bidder seeking the larger ownership interest in MHC.

g. The Bid Security of the Highest Bidder will be forfeited in

simultaneously to the Secretariat between 9:00 AM and

5. The Public Bidding will be declared a failed bidding in

favor of GSIS if the Highest Bidder, after negotiating and

2:00 PM, Philippine Standard Time, on the date of the

case:

executing

d.

If

the

Qualified

the

the

Bidder

Management

Management

becomes

Contract,

Contract,

the

winning

International

International

GSIS

Headquarters

Center,

Building

Reclamation

in another sealed

envelope

Area

marked

marked “SUPPORTING BID DOCUMENTS” for screening, evaluation

and

acceptance.

Those

who

submitted

Public Bidding. No bid shall be accepted after the closing

a. No single bid is submitted within the prescribed period;

Marketing/Reservation System Contract specified by the

time. Opened or tampered bids shall not be accepted.

or

Highest Bidder or other types of contract in its strategic

6. The Secretariat will log and record the actual time of

b. There is only one (1) bid that is submitted and

plan for The Manila Hotel, fails or refuses to:

submission of the two sealed envelopes. The actual time

acceptable to the PBAC.

i. Execute the Stock Purchase and Sale Agreement with

of submission will also be indicated by the Secretariat on

I. EXECUTION OF THE NECESSARY CONTRACTS

GSIS not later than October 23, 1995; or

the face of the two envelopes.

WITH GSIS/MHC

ii. Pay the full amount of the offered purchase price not

7. After Step No. 6, the two sealed envelopes will be

1. The Highest Bidder must comply with the conditions set

later than October 23, 1995; or

dropped in the corresponding bid boxes provided for the

forth below by October 23, 1995 or the Highest Bidder will

iii. Consummate the sale of the Block of Shares for any

purpose. These boxes will be in full view of the invited

lose the right to purchase the Block of Shares and GSIS

other reason.

public.

will instead offer the Block of Shares to the other Qualified

G. SUBMISSION OF BIDS

H. OPENING AND READING OF BIDS

Bidders:

a. The Highest Bidder must negotiate and execute with

A Qualified Bidder envisioning a Management Contract for

“Government Service Insurance System,” issued by a

GSIS/MHC

International

The Manila Hotel should determine whether or not the

reputable banking institution licensed to do business in the

Marketing Reservation System Contract or other type of

management fee structure above is acceptable before

Philippines and acceptable to GSIS.

contract specified by the Highest Bidder in its strategic

submitting their prequalification documents to GSIS.

M. GENERAL CONDITIONS

plan for The Manila Hotel. If the Highest Bidder is

J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS

1. The GSIS unconditionally reserves the right to reject any

intending to provide only financial support to The Manila

1. If for any reason, the Highest Bidder cannot be awarded

or all applications, waive any formality therein, or accept

Hotel,

Management

the Block of Shares, GSIS may offer this to the other

such application as maybe considered most advantageous

Qualified Bidders that have validly submitted bids provided

to the GSIS. The GSIS similarly reserves the right to

b. The Highest Bidder must execute the Stock Purchase

that these Qualified are willing to match the highest bid in

require the submission of any additional information from

and Sale Agreement with GSIS, a copy of which will be

terms of price per share.

the Applicant as the PBAC may deem necessary.

distributed to each of the Qualified Bidder after the

2. The order of priority among the interested Qualified

2. The GSIS further reserves the right to call off the Public

prequalification process is completed.

Bidders will be in accordance wit the equivalent price per

Bidding prior to acceptance of the bids and call for a new

2. In the event that the Highest Bidder chooses a

share of their respective bids in their public Bidding, i.e.,

public bidding under amended rules, and without any

Management Contract for The Manila Hotel, the maximum

first and second priority will be given to the Qualified

liability whatsoever to any or all the Qualified Bidders,

levels for the management fee structure that GSIS/MHC

Bidders that submitted the second and third highest bids

except the obligation to return the Bid Security.

are prepared to accept in the Management Contract are as

on the price per share basis, respectively, and so on.

3. The GSIS reserves the right to reset the date of the

follows:

K.

prequalification/bidding conference, the deadline for the

a. Basic management fee: Maximum of 2.5% of gross

BIDDER/STRATEGIC PARTNER

submission of the prequalification documents, the date of

revenues.(1)

The Highest Bidder will be declared the Winning

the Public Bidding or other pertinent activities at least three

b. Incentive fee: Maximum of 8.0% of gross operating

Bidder/Strategic Partner after the following conditions are

(3) calendar days prior to the respective deadlines/target

profit(1) after deducting undistributed overhead expenses

met:

dates.

and the basic management fee.

a. Execution of the necessary contract with GSIS/MHC not

4. The GSIS sells only whatever rights, interest and

later than October 23, 1995; and

participation it has on the Block of Shares.

Fixed

separate

institution

Contract,

aforementioned contract/s with GSIS/MHC.

c.

a

the

component

of

may

the

enter

into

the

international

DECLARATION

Requisite

approvals

OF

from

THE

the

WINNING

marketing/reservation system fee: Maximum of 2.0% of

b.

GSIS/MHC

and

gross room revenues.(1) The Applicant should indicate in

COP/OGCC are obtained.

Bidders, except the Bid Security, may be returned upon

its Information Package if it is wishes to charge this fee.

I. FULL PAYMENT FOR THE BLOCK OF SHARES

request.

Note (1): As defined in the uniform system of account for

1. Upon execution of the necessary contracts with

6. The decision of the PBAC/GSIS on the results of the

hotels.

GSIS/MHC, the Winning Bidder/Strategic Partner must

Public Bidding is final. The Qualified Bidders, by

The GSIS/MHC have indicated above the acceptable

fully pay, not later than October 23, 1995, the offered

participating in the Public Bidding, are deemed to have

parameters for the hotel management fees to facilitate the

purchase price for the Block of Shares after deducting the

agreed to accept and abide by these results.

negotiations with the Highest Bidder for the Management

Bid Security applied as downpayment.

7. The GSIS will be held free and harmless form any

Contract after the Public Bidding.

2. All payments should be made in the form of a Manager’s

liability, suit or allegation arising out of the Public Bidding

Check or unconditional Demand Draft, payable to the

5. All documents and materials submitted by the Qualified

by the Qualified Bidders who have participated in the Public Bidding.

3

(2) Assuming section 10 paragraph 2 of Article XII is self-

legislation for their enforcement.

10

The reason is not

executing whether the controlling shares of the Manila

difficult to discern. For if they are not treated as self-

The second public bidding was held on September 18,

Hotel Corporation form part of our patrimony as a nation;

executing, the mandate of the fundamental law ratified by

1995. Petitioner bidded P41.00 per share for 15,300,000

(3) Whether GSIS is included in the term “State,” hence,

the sovereign people can be easily ignored and nullified by

shares and Renong Berhad bidded P44.00 per share also

mandated to implement section 10, paragraph 2 of Article

Congress. 11 Suffused with wisdom of the ages is the

for 15,300,000 shares. The GSIS declared Renong Berhad

XII of the Constitution;

unyielding rule that legislative actions may give breath to

the highest bidder and immediately returned petitioner’s

(4) Assuming GSIS is part of the State, whether it failed to

constitutional rights but congressional in action should not

bid security.

give

suffocate them. 12

On September 28, 1995, ten days after the bidding,

corporation, over and above Renong Berhad, a foreign

Thus, we have treated as self-executing the provisions in

petitioner wrote to GSIS offering to match the bid price of

corporation, in the sale of the controlling shares of the

the Bill of Rights on arrests, searches and seizures, 13 the

Renong Berhad. It requested that the award be made to

Manila Hotel Corporation;

rights of a person under custodial investigation,

preference

to

petitioner,

a

qualified

Filipino

15

14

the

itself citing the second paragraph of Section 10, Article XII

(5) Whether petitioner is estopped from questioning the

rights of an accused,

of the Constitution. It sent a manager’s check for thirty-

sale of the shares to Renong Berhad, a foreign

incrimination, 16 It is recognize a that legislation is

three million pesos (P33,000,000.00) as bid security.

corporation.

unnecessary to enable courts to effectuate constitutional

Respondent GSIS, then in the process of negotiating with

Anent the first issue, it is now familiar learning that a

provisions guaranteeing the fundamental rights of life,

Renong Berhad the terms and conditions of the contract

Constitution provides the guiding policies and principles

liberty and the protection of property.

and technical agreements in the operation of the hotel,

upon which is built the substantial foundation and general

treatment

is

accorded

and the privilege against self-

to

17

constitutional

The same provisions

refused to entertain petitioner’s request.

framework of the law and government. As a rule, its

forbidding the taking or damaging of property for public

Hence, petitioner filed the present petition. We issued a

provisions are deemed self-executing and can be enforced

use without just compensation. 18

temporary restraining order on October 18, 1995.

without further legislative action. 6 Some of its provisions,

Contrariwise, case law lays down the rule that a

Petitioner anchors its plea on the second paragraph of

however, can be implemented only through appropriate

constitutional provision is not self-executing where it

Article XII, Section 10 of the Constitution 4 on the “National

laws enacted by the Legislature, hence not self-executing.

merely announces a policy and its language empowers the

Economy and Patrimony” which provides:

To determine whether a particular provision of a

Legislature to prescribe the means by which the policy

xxx xxx xxx

Constitution is self-executing is a hard row to hoe. The key

shall be carried into effect. 19 Accordingly, we have held

In the grant of rights, privileges, and concessions covering

lies on the intent of the framers of the fundamental law

that the provisions in Article II of our Constitution entitled

the national economy and patrimony, the State shall give

oftentimes submerged in its language. A searching inquiry

“Declaration of Principles and State Policies” should

preference to qualified Filipinos.

should be made to find out if the provision is intended as a

generally be construed as mere statements of principles of

xxx xxx xxx

present enactment, complete in itself as a definitive law, or

the State. 20 We have also ruled that some provisions of

The vital issues can be summed up as follows:

if

and

Article XIII on “Social Justice and Human Rights,” 21 and

(1) Whether section 10, paragraph 2 of Article XII of the

enforcement. 7 The inquiry demands a micro-analysis of

Article XIV on “Education Science and Technology, Arts,

5

it

needs

future

legislation

for

completion

Culture end Sports” 22 cannot be the basis of judicially

8

Constitution is a self-executing provision and does not

the text and the context of the provision in question.

need implementing legislation to carry it into effect;

Courts as a rule consider the provisions of the Constitution as

self-executing, 9 rather

than

as

requiring

future

enforceable rights. Their enforcement is addressed to the

discretion of Congress though they provide the framework for legislation

23

to effectuate their policy content.

24

The first paragraph of Section 10 is not self-executing. By

is now. The second and the third paragraphs of Section

its express text, there is a categorical command for

10, Article XII are thus self-executing.

Guided by this map of settled jurisprudence, we now

Congress to enact laws restricting foreign ownership in

This submission is strengthened by Article II of the

consider whether Section 10, Article XII of the 1987

certain areas of investments in the country and to

Constitution entitled “Declaration of Principles and State

Constitution is self-executing or not. It reads:

encourage the formation and operation of wholly-owned

Policies.” Its Section 19 provides that “[T]he State shall

Sec. 10. The Congress shall, upon recommendation of the

Filipino enterprises. The right granted by the provision is

develop a self-reliant and independent national economy

economic and planning agency, when the national interest

clearly still in esse. Congress has to breathe life to the right

effectively controlled by Filipinos.” It engrafts the all-

dictates, reserve to citizens of the Philippines or to

by means of legislation. Parenthetically, this paragraph

important Filipino First policy in our fundamental law and

corporations or associations at least sixty per centum of

was plucked from section 3, Article XIV of the 1973

by the use of the mandatory word “shall,” directs its

27

whose capital is owned by such citizens, or such higher

Constitution.

percentage as Congress may prescribe, certain areas of

affirmed our ruling in the landmark case of Lao Ichong

The provision in the 1973 Constitution

28

where

we

upheld

the

enforcement by the whole State without any pause or a half- pause in time.

investments. The Congress shall enact measures that will

v. Hernandez,

discretionary

The second issue is whether the sale of a majority of the

encourage the formation and operation of enterprises

authority of Congress to Filipinize certain areas of

stocks of the Manila Hotel Corporation involves the

whose capital is wholly owned by Filipinos.

investments. 29 By reenacting the 1973 provision, the first

disposition of part of our national patrimony. The records of

In the grant of rights, privileges, and concessions covering

paragraph of section 10 affirmed the power of Congress to

the

the national economy and patrimony, the State shall give

nationalize certain areas of investments in favor of

Commissioners entertained the same view as to its

preference to qualified Filipinos.

Filipinos.

meaning. According to Commissioner Nolledo, “patrimony”

The State shall regulate and exercise authority over

The second and third paragraphs of Section 10 are

refers not only to our rich natural resources but also to the

foreign investments within its national jurisdiction and in

different. They are directed to the State and not to

cultural heritage of our race.

accordance with its national goals and priorities.

Congress alone which is but one of the three great

Manila Hotel falls within the coverage of the constitutional

The first paragraph directs Congress to reserve certain

branches of our government. Their coverage is also

provision giving preferential treatment to qualified Filipinos

areas of investments in the country 25 to Filipino citizens or

broader for they cover “the national economy and

in the grant of rights involving our national patrimony. The

Constitutional

Commission

30

show

that

the

By this yardstick, the sale of

of whose capital stock is

patrimony” and “foreign investments within [the] national

unique value of the Manila Hotel to our history and culture

owned by Filipinos. It further commands Congress to enact

jurisdiction” and not merely “certain areas of investments.”

cannot be viewed with a myopic eye. The value of the

laws that will encourage the formation and operation of

Beyond debate, they cannot be read as granting Congress

hotel goes beyond pesos and centavos. As chronicled by

one hundred percent Filipino-owned enterprises. In

the exclusive power to implement by law the policy of

Beth Day Romulo, 31 the hotel first opened on July 4, 1912

checkered contrast, the second paragraph orders the

giving preference to qualified Filipinos in the conferral of

as a first-class hotel built by the American Insular

entire State to give preference to qualified Filipinos in the

rights and privileges covering our national economy and

Government for Americans living in, or passing through,

grant of rights and privileges covering the national

patrimony. Their language does not suggest that any of

Manila while traveling to the Orient. Indigenous materials

economy and patrimony. The third paragraph also directs

the State agency or instrumentality has the privilege to

and Filipino craftsmanship were utilized in its construction,

the State to regulate foreign investments in line with our

hedge or to refuse its implementation for any reason

For sometime, it was exclusively used by American and

national goals and well-set priorities.

whatsoever. Their duty to implement is unconditional and it

Caucasian

to corporations sixty per cent

26

travelers

and

served

as

the

“official

guesthouse” of the American Insular Government for

visiting foreign dignitaries. Filipinos began coming to the

The third issue is whether the constitutional command to

demands. Only a constitution strung with elasticity can

Hotel as guests during the Commonwealth period. When

the State includes the respondent GSIS. A look at its

grow as a living constitution.

the Japanese occupied Manila, it served as military

charter will reveal that GSIS is a government-owned and

Thus, during the deliberations in the Constitutional

headquarters and lodging for the highest-ranking officers

controlled corporation that administers funds that come

Commission, Commissioner Nolledo to define the phrase

from Tokyo. It was at the Hotel and the Intramuros that the

from the monthly contributions of government employees

brushed aside a suggestion to define the phrase “qualified

Japanese made their last stand during the Liberation of

and the government. 33 The funds are held in trust for a

Filipinos.” He explained that present and prospective

Manila. After the war, the Hotel again served foreign

distinct

“laws” will take care of the problem of its interpretation, viz:

guests and Filipinos alike. Presidents and kings, premiers

indifferently. 34 They are to be used to finance the

xxx xxx xxx

and potentates, as well as glamorous international film and

retirement, disability and life insurance benefits of the

THE

sports celebrities were housed in the Hotel. It was also the

employees

Commissioner Rodrigo? Is it to remove the word

situs of international conventions and conferences. In the

expenses of the GSIS, 35 Excess funds, however, are

“QUALIFIED?”

local scene, it was the venue of historic meetings, parties

allowed to be invested in business and other ventures for

MR. RODRIGO. No, no, but say definitely “TO QUALIFIED

and conventions of political parties. The Hotel has reaped

the benefit of the employees. 36 It is thus contended that

FILIPINOS” as against whom? As against aliens over

and continues reaping numerous recognitions and awards

the GSIS investment in the Manila Hotel Corporation is a

aliens?

from international hotel and travel award-giving bodies, a

simple business venture, hence, an act beyond the

MR. NOLLEDO. Madam President, I think that is

fitting acknowledgment of Filipino talent and ingenuity.

contemplation of section 10, paragraph 2 of Article XII of

understood. We use the word “QUALIFIED” because the

These are judicially cognizable facts which cannot be bent

the Constitution.

existing laws or the prospective laws will always lay down

by a biased mind.

The submission is unimpressive. The GSIS is not a pure

conditions under which business map be done, for

The Hotel may not, as yet, have been declared a national

private corporation. It is essentially a public corporation

example, qualifications on capital, qualifications on the

cultural treasure pursuant to Republic Act No. 4846 but

created by Congress and granted an original charter to

setting up of other financial structures, et cetera.

that does not exclude it from our national patrimony.

serve a public purpose. It is subject to the jurisdictions of

MR. RODRIGO. It is just a matter of style.

Republic

the Civil Service Commission 37 and the Commission on

MR. NOLLEDO Yes.

Act

No.

4846,

“The

Cultural

Properties

purpose

and

which

the

cannot

administrative

be

disposed

and

of

operational

PRESIDENT.

suggestion

skin-bound to adhere to the policies spelled out in the

QUALIFIED FILIPINOS,” it can be understood as giving

classified a “national cultural treasure” or an “important

general welfare of the people. One of these policies is the

preference to qualified Filipinos as against Filipinos who

cultural property.

32

Approved on June 18, 1966 and

RODRIGO.

“PREFERENCE

of

Audit.

MR.

say,

the

procedure whereby a particular cultural property may be

As state-owned and controlled corporation, it is

we

is

Preservation and Protection Act,” merely provides a

38

If

What

TO

Filipino First policy which the people elevated as a

are not qualified.

amended by P.D. 374 in 1974, the law is limited in its

constitutional command.

MR. NOLLEDO. Madam President, that was the intention

reach and cannot be read as the exclusive law

The fourth issue demands that we look at the content of

of the proponents. The committee has accepted the

implementing

1987

phrase “qualified Filipinos” and their “preferential right.”

amendment.

Constitution. To be sure, the law does not equate cultural

The Constitution desisted from defining their contents. This

xxx xxx xxx

treasure and cultural property as synonymous to the

is as it ought to be for a Constitution only lays down

As previously discussed, the constitutional command to

phrase “patrimony of the nation.”

flexible policies and principles which can bent to meet

enforce the Filipino First policy is addressed to the State

today’s manifest needs and tomorrow’s unmanifested

and not to Congress alone. Hence, the word “laws” should

section

10,

Article

XII

of

the

not be understood as limited to legislations but all state

define the degree of the right of preference to be given to

Constitution is deemed part of said rules and regulations.

actions which include applicable rules and regulations

qualified Filipinos. They knew that for the right to serve the

Pursuant to legal hermeneutics which demand that we

adopted by agencies and instrumentalities of the State in

general welfare, it must have a malleable content that can

interpret rules to save them from unconstitutionality, I

the exercise of their rule-making power. In the case at bar,

be adjusted by our policy-makers to meet the changing

submit that the right of preference of petitioner arises only

the bidding rules and regulations set forth the standards to

needs of our people. In fine, the right of preference of

if it tied the bid of Benong Berhad. In that instance, all

measure the qualifications of bidders Filipinos and

qualified Filipinos is to be determined by degree as time

things stand equal, and bidder, as a qualified Pilipino

foreigners alike. It is not seriously disputed that petitioner

dictates and circumstances warrant. The lesser the need

bidder, should be preferred.

for alien assistance, the greater the degree of the right of

It is with deep regret that I cannot subscribe to the view

Thus, we come to the critical issue of the degree of

preference can be given to Filipinos and vice verse.

that petitioner has a right to match the bid of Renong

preference which GSIS should have accorded petitioner, a

Again, it should be stressed that the right and the duty to

Berhad. Petitioner’s submission must be supported by the

qualified Filipino, over Renong Berhad, a foreigner, in the

determine the degree of this privilege at any given time is

rules but even if we examine the rules inside-out .thousand

purchase of the controlling shares of the Manila Hotel.

addressed

our

times, they can not justify the claimed right. Under the

Petitioner claims that after losing the bid, this right of

constitutional scheme, the right primarily belongs to

rules, the right to match the highest bid arises only “if for

preference gives it a second chance to match the highest

Congress

our

any reason, the highest bidder cannot be awarded block of

bid of Renong Berhad.

government, other branches of government, and all their

shares . . .” No reason has arisen that will prevent the

With due respect, I cannot sustain petitioner’s submission.

agencies and instrumentalities, share the power to enforce

award to Renong Berhad. It qualified as bidder. It complied

I prescind from the premise that the second paragraph of

this state policy. Within the limits of their authority, they

with the procedure of bidding. It tendered the highest bid. It

section 10, Article XII of the Constitution is pro-Pilipino but

can act or promulgate rules and regulations defining the

was declared as the highest bidder by the GSIS and the

not anti-alien. It is pro-Filipino for it gives preference to

degree of this right of preference in cases where they have

rules say this decision is final. It deserves the award as a

Filipinos. It is not, however, anti-alien per se for it does not

to make grants involving the national economy and judicial

matter of right for the rules clearly did not give to the

absolutely bar aliens in the grant of rights, privileges and

duty. On the other hand, our duty is to strike down acts of

petitioner as a qualified Filipino privilege to match the

concessions

the state that violate the policy.

higher bid of a foreigner. What the rules did not grant,

patrimony. Indeed, in the absence of qualified Filipinos, the

To date, Congress has not enacted a law defining the

petitioner cannot demand. Our symphaties may be with

State is not prohibited from granting these rights, privileges

degree of the preferential right. Consequently, we must

petitioner but the court has no power to extend the latitude

and concessions to foreigners if the act will promote the

turn to the rules and regulations of on respondents

and longtitude of the right of preference as defined by the

weal of the nation.

Committee Privatization and GSIS to determine the degree

rules. The parameters of the right of preference depend on

In implementing the policy articulated in section 10, Article

of preference that petitioner is entitled to as a qualified

galaxy of facts and factors whose determination belongs to

XII of the Constitution, the stellar task of our State policy-

Filipino in the subject sale. A tearless look at the rules and

the province of the policy-making branches and agencies

makers is to maintain a creative tension between two

regulations will show that they are silent on the degree of

of the State. We are duty-bound to respect that

desiderata — first, the need to develop our economy and

preferential right to be accorded qualified Filipino bidder.

determination even if we differ with the wisdom of their

patrimony with the help of foreigners if necessary, and,

Despite their silence, however, they cannot be read to

judgment. The right they grant may be little but we must

second, the need to keep our economy controlled by

mean that they do not grant any degree of preference to

uphold the grant for as long as the right of preference is

Filipinos. Rightfully, the framers of the Constitution did not

petitioner for paragraph 2, section 10, Article XII of the

not denied. It is only when a State action amounts to a

qualified to bid as did Renong Berhad.

covering

the

39

national

economy

and

to as

the the

entire

State.

lawmaking

While

under

department

of

denial of the right that the Court can come in and strike

makers can write laws and rules giving favored treatment

2. Aside from being prohibited by the Constitution, such

down the denial as unconstitutional.

to the Filipino but we are not free to be unfair to a foreigner

judicial is short-sighted and, viewed properly, gravely

Finally, I submit that petitioner is estopped from assailing

after writing the laws and the rules. After the laws are

prejudicial to long-term Filipino interest. It encourages

the winning bid of Renong Berhad. Petitioner was aware of

written, they must be obeyed as written, by Filipinos and

other countries — in the guise of reverse comity or worse,

the rules and regulations of the bidding. It knew that the

foreigners alike. The equal protection clause of the

unabashed retaliation — to discriminate against us in their

rules and regulations do not provide that a qualified

Constitution protects all against unfairness. We can be

own jurisdictions by authorizing their own nationals to

Filipino bidder can match the winning bid submitting an

pro-Filipino without unfairness to foreigner.

similarly equal and defeat the higher bids of Filipino

inferior bid. It knew that the bid was open to foreigners and

I vote to dismiss the petition.

enterprises solely, while on the other hand, allowing similar

that foreigners qualified even during the first bidding.

Narvasa, C.J., and Melo, J., concur.

bids of other foreigners to remain unchallenged by their nationals. The majority’s thesis will thus marginalize

Petitioner cannot be allowed to repudiate the rules which it agreed to respect. It cannot be allowed to obey the rules

READ

CASE

DIGESTS: Filipino

when it wins and disregard them when it loses. If

Commercial Law

First

Policy; Special

Filipinos as pariahs in the global marketplace with absolute no chance of winning any bidding outside our country.

sustained, petitioners’ stance will wreak havoc on he

Even authoritarian regimes and hermit kingdoms have

essence of bidding. Our laws, rules and regulations require

PANGANIBAN, J., dissenting:

long ago found out unfairness, greed and isolation are self-

highest bidding to raise as much funds as possible for the

I regret I cannot join the majority. To the incisive

defeating and in the long-term, self-destructing.

government to maximize its capacity to deliver essential

Dissenting Opinion of Mr. Justice Reynato S. Puno, may I

The moral lesson here is simple: Do not do unto other

services to our people. This is a duty that must be

just add

what you dont want other to do unto you.

discharged by Filipinos and foreigners participating in a

1. The majority contends the Constitution should be

3. In the absence of a law specifying the degree or extent

bidding contest and the rules are carefully written to attain

interpreted to mean that, after a bidding process is

of the “Filipino First” policy of the Constitution, the

this objective. Among others, bidders are prequalified to

concluded, the losing Filipino bidder should be given the

constitutional preference for the “qualified Filipinos” may

insure their financial capability. The bidding is secret and

right to equal the highest foreign bid, and thus to win.

be allowed only where all the bids are equal. In this

the bids are sealed to prevent collusion among the parties.

However, the Constitution [Sec. 10 (2), Art. XII] simply

manner, we put the Filipino ahead without self-destructing

This objective will be undermined if we grant petitioner that

states that “in the grant of rights . . . covering the national

him and without being unfair to the foreigner.

privilege to know the winning bid and a chance to match it.

economy and patrimony, the State shall give preference to

In short, the Constitution mandates a victory for the

For plainly, a second chance to bid will encourage a bidder

qualified Filipinos.” The majority concedes that there is no

qualified Filipino only when the scores are tied. But not

not to strive to give the highest bid in the first bidding.

law defining

when the ballgame is over and the foreigner clearly posted

We support the Filipino First policy without any reservation.

preference. Specifically, no statute empowers a losing

The visionary nationalist Don Claro M. Recto has warned

Filipino bidder to increase his bid and equal that of the

us that the greatest tragedy that can befall a Filipino is to

winning foreigner. In the absence of such empowering law,

be an alien in his own land. The Constitution has

the majority’s strained interpretation, I respectfully submit

embodied Recto’s counsel as a state policy. But while the

constitutes unadulterated judicial legislation, which makes

Filipino First policy requires that we incline to a Filipino, it

bidding a ridiculous sham where no Filipino can lose and

does not demand that we wrong an alien. Our policy

where no foreigner can win. Only in the Philippines!.

the

extent

or

degree of

such

the highest score.

G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA

NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners. The Solicitor General for respondents.

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to — (1) Cancel all existing timber license agreements in the country;

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the

siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that: CAUSE OF ACTION 7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin oldgrowth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11. Public records reveal that the defendant's, predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour — nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands

will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country. A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B". 17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. 18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State — (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and wellbeing. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to — a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.); d. "protect and advance the right of the people to a balanced and healthful

ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6 On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and selfperpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate

the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,

as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions

based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in

accord with the rhythm and harmony of nature.

MR. VILLACORTA:

This right unites with the right to health which is provided for in the preceding section of the same article:

Does this section mandate the State to provide sanctions against all forms of pollution — air, water and noise pollution?

Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of

Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,

wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: . . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-avis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that: The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24 We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . . Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State

regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the nonimpairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed. 27 cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of nonimpairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED. Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

Separate Opinions

FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance

of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case.

cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management;

The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or

(d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities; (v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and subheadings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves

intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should

cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

# Separate Opinions FELICIANO, J., concurring I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this case which, to my mind, is one of the most important cases decided by this Court in the last few years. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment, which of course embraces the utilization of all the natural resources in the territorial base of our polity. I have therefore sought to clarify, basically to myself, what the Court appears to be saying. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly

regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora;

and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 — all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon the other hand, a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating to an extremely wide range of topics: (a) air quality management; (b) water quality management; (c) land use management; (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources; (ii) wild life; (iii) forestry and soil conservation; (iv) flood control and natural calamities;

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce. Secondly, the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and subheadings mentioned above. The Philippine Environment Code does not, in other words, appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. My suggestion is simply that petitioners must, before the trial court, show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

(v) energy development; (vi) conservation and utilization of surface and ground water (vii) mineral resources

It seems to me important that the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves

intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been agrave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualification. Where no specific, operable norms and standards are shown to exist, then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene. My learned brother Davide, Jr., J., rightly insists that the timber companies, whose concession agreements or TLA's petitioners demand public respondents should

cancel, must be impleaded in the proceedings below. It might be asked that, if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this, petitioners implicitly assume), what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege, as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners, under all the circumstances which exist. I vote to grant the Petition for Certiorari because the protection of the environment, including the forest cover of our territory, is of extreme importance for the country. The doctrines set out in the Court's decision issued today should, however, be subjected to closer examination.

GEORGE T. VILLENA, CARLOS N. VILLENA, AURORA M. BONDOC and RONNIE C. FERNANDEZ, and their Respective Spouses, petitioners, vs. Spouses ANTONIO C. CHAVEZ and NOEMI MARCOS-CHAVEZ and CARLITA C. CHAVEZ, respondents. DECISION PANGANIBAN, J.: Stare decisis simply means that a judgment reached in one case should be applied to successive ones in which the facts are substantially identical, even though the parties may be different. Like cases ought to be decided alike.

Before this Court is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the May 9, 2001 Decision[2] of the Court of Appeals (CA) in CA-GR SP No. 58329. The decretalportion of the Decision reads as follows: “WHEREFORE, the judgment dated March 29, 2000 of Branch 56 of the RTC of Angeles City is hereby REVERSED and SET ASIDE, and a new judgment entered in favor of the petitioners, ordering the respondents and all persons claiming rights under them to vacate from the subject lots and to remove their houses and/or any other structures or constructions thereon.”[3] The overturned Decision of the Regional Trial Court (RTC) of Angeles City, Branch 56,[4] affirmed in toto the Municipal Trial Court (MTC) of Angeles City, Branch II.[5]

The Facts

The facts of the case are summarized by the CA in this wise: “In a Complaint for Illegal Detainer with Damages filed on October 15, 1998, the [respondents] alleged that they are the owners of four (4) parcels of land designated as Lot Nos. 164, 165, 166, and 167 of the Cadastral Survey of Angeles City, and covered, respectively, by Transfer Certificates of Title Nos. 83247, 83246, 83248 and 83249, all issued by the Register of Deeds of Angeles City. These four (4) parcels of land have been consolidated and subdivided into several blocks and lots, and are now collectively designated as Bagong Silang Phase III-C. By mere permission and tolerance of the [respondents], the [petitioners] have occupied and erected their homes on four (4) of the said lots, as follows: George T. Villena and wife = Block 5, Lot 14

The Case

Carlos N. Villena and wife = Block 5, Lot 13 Aurora M. Bondoc and husband = Block 2, Lot 4

Ronnie C. Hernandez and wife = Block 3, Lot 5 “All the [petitioners] are members of the Bagong Silang Phase III-C Homeowners’ Association, Inc., with office address at Cutud, Angeles City. The [respondents] allowed the [petitioners] and other members of the said homeowners’ association to continue occupying the subject lots and ultimately to acquire ownership of the lots occupied, in consideration of a certain amount to be paid to the [respondents] as equity. “The [respondents] further alleged that the other members of the said homeowners’ association paid to the [respondents] their respective equity for their right to continue occupying and ultimately acquiring ownership of the occupied lots. However, notwithstanding repeated demands made upon the [petitioners], they have refused and failed without any justifiable ground to pay their respective equity. In view of such failure to pay, the [petitioners] have forfeited their right to continue occupying the lots in question. Formal demand letters were then sent by registered mail to the [petitioners], wherein they were given a period of thirty (30) days from receipt within which to vacate and remove their houses from the subject lots. The period given to the [petitioners] lapsed on April 11, 1998, but up to the present time, the [petitioners] refused and failed without any justifiable reason or ground to vacate and remove their houses from the said lots. “The [respondents] then prayed in their Complaint that the [petitioners] be ordered to vacate and remove their houses from the lots currently occupied; that each of the [petitioners] be ordered to pay the [respondents] P1,000.00 a month as reasonable rental for the use and occupation of the lots starting from April 11, 1998 until they have finally vacated and removed their houses from said lots; and that the [petitioners] jointly and severally pay the [respondents] P25,000.00 as actual and compensatory damages, P2,000.00 as appearance fee per hearing, exemplary damages, and the costs of the suit. “In their answer with compulsory counter-claim filed on November 3, 1998, the [petitioners] countered that the [respondents] have no cause of action to institute the present action, considering that the properties in question are under the community mortgage program implemented

by the National Home Mortgage Finance Corporation. Moreover, the [petitioners] claimed that they are lawful tenants of the premises, and that they have been paying their equity to their originator, the Urban Land and Development Foundation[,] Inc. However, they were not issued the corresponding receipts evidencing payment and a copy of their contract. The [petitioners] further averred that they were willing to continue paying their equity until the same shall have been fully paid, but their originator, without justifiable reason, refused to accept the tender of payment made by them. The [petitioners] subsequently agreed with their originator that the payment of equity should be continued only upon the release of a Purchase Commitment Line (PCL). “In addition, the [petitioners] alleged that they are qualified beneficiaries under Republic Act No. 7279, otherwise known as the Urban Development and Housing Act of 1992; hence, they cannot be summarily evicted and their dwelling houses demolished unless and until they have been relocated. According to the [petitioners], they are also builders in good faith and should be indemnified for the improvements they constructed on the properties in question. “The [petitioners] prayed in their answer that the complaint be dismissed; that they be declared lawful tenants and qualified beneficiaries under R.A. 7279; that the [respondents] be ordered to sell the lots in question to them, and to pay attorney’s fees and the costs of suit. “After the pre-trial conference, both parties submitted their position papers. On September 15, 1999, MTC Branch II of Angeles City rendered a decision dismissing both the [respondents’] complaint and the [petitioners’] counterclaim, on the ground that the filing of an ejectment case based on the alleged violation of the parties’ agreement which has not yet been rescinded is premature, and that it is beyond the competence of the said court to act on the case, as rescission or specific performance is beyond the jurisdiction of the said court. “The [respondents] appealed such adverse judgment to the RTC of Angeles City, which appeal was raffled to Branch 56 of the said court. On March 29, 2000, RTC

Branch 56 of Angeles City rendered a decision affirming in toto the MTC judgment.”[6]

“I. Whether or not the Honorable Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction in reversing and setting aside the Decisions of the Municipal Trial Court, Branch II and of the Regional Trial Court, Branch 56 both of Angeles City[;]

Ruling of the Court of Appeals “II. Whether or not the Honorable Municipal Trial Court has jurisdiction over the case; The CA held that the right of petitioners to continue occupying the subject properties hinged on their continued payment of the agreed amount as equity.[7] Even after formal letters of demand to vacate the premises had been sent to them, however, they still did not make any effort to pay their equity to protect their right to continue occupying those lots. Thus, the appellate court ruled that their failure to pay made their occupancy unlawful, in consequence of which they became subject to an ejectment suit. The CA rejected the contention of petitioners that they were protected by RA 7279. According to the appellate court, there was no express declaration by the local government unit that the parcels of land owned by respondents were to be used for socialized housing. Neither was there proof of the allegation that they had applied therefor under the Community Mortgage Program of the National Home Mortgage Finance Corporation under Section 31 of RA 7279. Besides, even granting that petitioners were protected under RA 7279, they were still liable to pay amortization or face eviction. Likewise debunked was the allegation of petitioners that respondents were not the real parties in interest. Being the owners of the lots occupied by the former, the latter had a material interest in the suit and stood to be benefited or injured by any judgment affecting those parcels of land. Hence, this Petition.

[8]

The Issues

Petitioners raise the following issues for our consideration:

“III. Whether or not the non-inclusion of the Bagong Silang Homeowners Association Inc., is fatal to respondents[‘] cause of action[;] “IV. Whether or not ejectment is proper in the case at bar; “V. Whether or not the absence of contractual relation[s] between the respondents and the petitioners bar[s] the filing of any action by the respondents against the petitioner.”[9] The primordial issue to be resolved is whether unlawful detainer is the proper action to resolve this case. If it is, then the MTC indeed had jurisdiction over the case, and the CA was correct in overturning the RTC’s ruling that the MTC had no jurisdiction over the case.

The Court’s Ruling

The Petition is meritorious. Main Issue: Propriety of Unlawful Detainer The CA ruled that petitioners’ possession or occupancy of the subject premises was by mere tolerance of respondents. Hence, once petitioners failed to pay the agreed amount as equity, their right to continue occupying the lots was lost. We disagree. Contradictory were the statements of the appellate court that, on the one hand, there was no contract between the parties; and yet, on the other, that

petitioners failed to pay theagreed equity. The fact that the CA found that there was failure to pay the equity was an indication of an agreement. To be sure, petitioners’ possession of the subject premises was not by mere tolerance of respondents. In the Complaint[10] of respondents, filed before Branch II of the Municipal Trial Court of Angeles City, they themselves alleged the presence of an agreement between the parties as follows: “10. That in consideration of a certain amount to be paid to the [respondents] by each of the [petitioners] as equity for their right to continue occupying and ultimately acquire ownership of the lots that they occupy, the said homeowners’ association has made arrangements with the [respondents] to allow the [petitioners] and other members of the said homeowners’ association to continue occupying and ultimately acquire ownership of the lots that they occupy[.]”[11] Further, in the Special Power of Attorney[12] annexed to their Complaint, they constituted and appointed Teodorico B. Sanchez and/or Arturo M. Yadan as their attorneys-in-fact to do, among others, the following: “1. To collect and receive any amount or amounts as equity for the sale thereof to them from the occupants or any other interested buyer or buyers of any portion or portions of the following-described parcels of land: xxx xxx xxx of which we are the absolute and exclusive owners, and which comprise the parcels of land being acquired by the members or beneficiaries of the BAGONG SILANG PHASE III-C HOMEOWNERS ASSOCIATION, at Brgy. Cutud, Angeles City[.]”[13] Based on the admissions of respondents themselves, they entered into an agreement with petitioners. Necessarily, the latter’s occupancy of the lots in question was not based merely on theformer’s tolerance

or permission. Thus, petitioners were not necessarily bound by an implied promise to vacate upon demand, failing which, a summary action for ejectment would have become proper. The MTC’s findings instructive:

of

fact

on this

point

are

“About the only thing that the parties have met on a common ground is that: [Respondents] have entered into an arrangement/agreement with Bagong Silang Homeowners’ Association, Inc. that called for the payment of certain amounts as equity for [petitioners’] right to continue occupying the lots with the end in view of eventually becoming the owners thereof, that pursuant to such agreement [petitioners] have paid certain amounts as acquisition fees or as equity but later discontinued making payments in view of the non-issuance of the so-called purchase commitment line/loan, and as a consequence, [respondents] are now accusing [petitioners] for violating the agreement and on the basis of such breach of the agreement by [petitioners], demands for the latter to vacate the lots were made by [respondents].”[14] When respondents alleged that the Bagong Silang Phase III-C Homeowners’ Association made arrangements with them to allow petitioners and other members of the association to continue to occupy and ultimately to acquire ownership of the lots in question, respondents explicitly admitted that a contract had indeed been entered into. The eventual transfer of ownership of real property evidenced that obligation. What is clear is that in their Complaint, respondents alleged that petitioners had violated the stipulations of their agreement as follows: “11. That the other members of the Ba[g]ong Silang Phase III-C Homeowners’ Association, Inc., paid to the [respondents] their respective equity for their right to continue occupying and ultimately acquire ownership of the lots that they occupy, but notwithstanding repeated demands made on them, up to the present time, the [petitioners] have refused and failed without any justifiable ground or reason to pay their respective equity to the [respondents], and, in view of such refusal and failure, the [petitioners] have forfeited their right to continue occupying

and ultimately acquire ownership of the lots that they occupy[.]”[15] Petitioners, on the other hand, denied any breach on their part and argued that the principal issue was one of interpretation, enforcement and/or rescission of the contract. Under these circumstances, proof of violation of the provisions of the contract is a condition precedent to resolution or rescission.[16] The contract can be declared rescinded only when its nature has been clarified and the eventual violation thereof, if any, has been established. Upon such rescission, in turn, hinges a pronouncement that the possession of the realty has become unlawful. Thus, the basic issue is not possession but interpretation, enforcement and/or rescission of the contract -- a matter that is beyond the jurisdiction of the Municipal Trial Court to hear and determine. An allegation of a violation of a contract or agreement in a detainer suit may be proved by the presentation of competent evidence, upon which an MTC judge might make a finding to that effect. But certainly, that court cannot declare and hold that the contract is rescinded, as such power is vested in the RTC.[17] The rescission of the contract is the basis of, and therefore a condition precedent for, the illegality of a party’s possession of a piece of realty.[18] Without judicial intervention and determination, even a stipulation entitling one party to take possession of the land and building in case the other party violates the contract cannot confer upon the former the right to take possession thereof, if that move is objected to.[19] To be sure, the jurisdiction of a court is determined by the allegations in the complaint.[20] Thus, in ascertaining whether or not an action is one for unlawful detainer falling within the exclusive jurisdiction of the inferior courts, the averments of the complaint and the character of the relief sought should be examined. Also, as correctly pleaded by petitioners, a similar case had been decided by the CA in CA-GR SP No. 58679, in which it ruled that the proper action should have been a complaint for rescission or specific performance, not for illegal detainer. In that case, the same plaintiffs filed the same charges against a different but similarly situated set of defendants.

The appellate court ruled therein that there was an existing agreement or contract that determined the nature of the parties’ relationship.[21] Thus, it held that the proper action should have been for rescission of contract or specific performance, not unlawful detainer.[22] When the CA Decision was elevated, this Court denied the appeal for failure to show that a reversible error had been committed by the appellate court. Thereafter, the Decision became final and executory on April 23, 2002.[23]

Decisions of the MTC and the RTC of Angeles City are REINSTATED. No pronouncement as to costs.

FRANCISCO A. VELOSO, petitioner, vs. COURT OF APPEALS, AGLALOMA B. ESCARIO, assisted by her husband GREGORIO L. ESCARIO, the REGISTER OF DEEDS FOR THE CITY OF MANILA, respondents.

Said the appellate court in the previous case: DECISION “Inasmuch as the relationship existing between the parties is not a lessor-lessee relationship but one that emanated from the agreement between appellants and the Urban Land and Development Foundation, Inc., the socalled originator of the Bagong Silang Homeowners Association, Inc., the relief being sought then by appellants appears to be improper. If ever there was no payment of equity as provided for under the said agreement, the same cannot be considered as non-payment of rentals. Thus, it cannot be a sufficient basis for filing an ejectment case against appellees, the proper remedy being an action for rescission of contract or specific performance.”[24] We stress that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same.[25] Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same, even though the parties may be different.[26] It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike.[27] Having ruled that the MTC had indeed no jurisdiction to take cognizance of this case in the first place, we see no more need to address the other issues raised by petitioners. WHEREFORE, the Petition is hereby GRANTED and the assailed Decision of the Court of Appeals is OVERTURNED. Consequently, the

TORRES, JR., J.: This petition for review assails the decision of the Court of Appeals, dated July 29, 1991, the dispositive portion of which reads: “WHEREFORE, the decision appealed from is hereby AFFIRMED IN TOTO. Costs against appellant.”[1] The following are the antecedent facts: Petitioner Francisco Veloso was the owner of a parcel of land situated in the district of Tondo, Manila, with an area of one hundred seventy seven (177) square meters and covered by Transfer Certificate of Title No. 49138 issued by the Registry of Deeds of Manila.[2] The title was registered in the name of Francisco A. Veloso, single,[3] on October 4, 1957.[4] The said title was subsequently canceled and a new one, Transfer Certificate of Title No. 180685, was issued in the name of Aglaloma B. Escario, married to Gregorio L. Escario, on May 24, 1988.[5] On August 24, 1988, petitioner Veloso filed an action for annulment of documents, reconveyance of property with damages and preliminary injunction and/or restraining order. The complaint, docketed as Civil Case No. 8845926, was raffled to the Regional Trial Court, Branch 45, Manila. Petitioner alleged therein that he was the absolute owner of the subject property and he never authorized anybody, not even his wife, to sell it. He alleged that he was in possession of the title but when his wife, Irma, left for abroad, he found out that his copy was missing. He then verified with the Registry of Deeds of Manila and

there he discovered that his title was already canceled in favor of defendant Aglaloma Escario. The transfer of property was supported by a General Power of Attorney[6] dated November 29, 1985 and Deed of Absolute Sale, dated November 2, 1987, executed by Irma Veloso, wife of the petitioner and appearing as his attorney-in-fact, and defendant Aglaloma Escario.[7] Petitioner Veloso, however, denied having executed the power of attorney and alleged that his signature was falsified. He also denied having seen or even known Rosemarie Reyes and Imelda Santos, the supposed witnesses in the execution of the power of attorney. He vehemently denied having met or transacted with the defendant. Thus, he contended that the sale of the property, and the subsequent transfer thereof, were null and void. Petitioner Veloso, therefore, prayed that a temporary restraining order be issued to prevent the transfer of the subject property; that the General Power of Attorney, the Deed of Absolute Sale and the Transfer Certificate of Title No. 180685 be annulled; and the subject property be reconveyed to him. Defendant Aglaloma Escario in her answer alleged that she was a buyer in good faith and denied any knowledge of the alleged irregularity. She allegedly relied on the general power of attorney of Irma Veloso which was sufficient in form and substance and was duly notarized. She contended that plaintiff (herein petitioner), had no cause of action against her. In seeking for the declaration of nullity of the documents, the real party in interest was Irma Veloso, the wife of the plaintiff. She should have been impleaded in the case. In fact, Plaintiff’s cause of action should have been against his wife, Irma. Consequently, defendant Escario prayed for the dismissal of the complaint and the payment to her of damages.[8] Pre-trial was conducted. The sole issue to be resolved by the trial court was whether or not there was a valid sale of the subject property.[9] During the trial, plaintiff (herein petitioner) Francisco Veloso testified that he acquired the subject property from the Philippine Building Corporation, as evidenced by a Deed of Sale dated October 1, 1957.[10] He married Irma Lazatin on January 20, 1962.[11] Hence, the property did not belong to their conjugal partnership. Plaintiff further asserted that he did not sign the power of attorney and as

proof that his signature was falsified, he presented Allied Bank Checks Nos. 16634640, 16634641 and 16634643, which allegedly bore his genuine signature. Witness for the plaintiff Atty. Julian G. Tubig denied any participation in the execution of the general power of attorney. He attested that he did not sign thereon, and the same was never entered in his Notarial Register on November 29, 1985. In the decision of the trial court dated March 9, 1990,[12] defendant Aglaloma Escaro was adjudged the lawful owner of the property as she was deemed an innocent purchaser for value. The assailed general power of attorney was held to be valid and sufficient for the purpose. The trial court ruled that there was no need for a special power of attorney when the special power was already mentioned in the general one. It also declared that plaintiff failed to substantiate his allegation of fraud. The court also stressed that plaintiff was not entirely blameless for although he admitted to be the only person who had access to the title and other important documents, his wife was still able to possess the copy. Citing Section 55 of Act 496, the court held that Irma’s possession and production of the certificate of title was deemed a conclusive authority from the plaintiff to the Register of Deeds to enter a new certificate. Then applying the principle of equitable estoppel, plaintiff was held to bear the loss for it was he who made the wrong possible. Thus: “WHEREFORE, the Court finds for the defendants and against plaintiffa. declaring that there was a valid sale of the subject property in favor of the defendant; b. denying all other claims of the parties for want of legal and factual basis.

Hence, this petition for review before us. This petition for review was initially dismissed for failure to submit an affidavit of service of a copy of the petition on the counsel for private respondent. [13] A motion for reconsideration of the resolution was filed but it was denied in a resolution dated March 30, 1992.[14] A second motion for reconsideration was filed and in a resolution dated Aug. 3, 1992, the motion was granted and the petition for review was reinstated.[15] A supplemental petition was filed on October 9, 1992 with the following assignment of errors: I The Court of Appeals committed a grave error in not finding that the forgery of the power of attorney (Exh. “C”) had been adequately proven, despite the preponderant evidence, and in doing so, it has so far departed from the applicable provisions of law and the decisions of this Honorable Court, as to warrant the grant of this petition for review on certiorari. II There are principles of justice and equity that warrant a review of the decision. III The Court of Appeals erred in affirming the decision of the trial court which misapplied the principle of equitable estoppel since the petitioner did not fail in his duty of observing due diligence in the safekeeping of the title to the property. We find petitioner’s contentions not meritorious.

Without pronouncement as to costs. SO ORDERED.” Not satisfied with the decision, petitioner Veloso filed his appeal with the Court of Appeals. The respondent court affirmed in toto the findings of the trial court.

An examination of the records showed that the assailed power of attorney was valid and regular on its face. It was notarized and as such, it carries the evidentiary weight conferred upon it with respect to its due execution. While it is true that it was denominated as a general power of attorney, a perusal thereof revealed that it stated an authority to sell, to wit:

“2. To buy or sell, hire or lease, mortgage or otherwise hypothecate lands, tenements and hereditaments or other forms of real property, more specifically TCT No. 49138, upon such terms and conditions and under such covenants as my said attorney shall deem fit and proper.”[16] Thus, there was no need to execute a separate and special power of attorney since the general power of attorney had expressly authorized the agent or attorney in fact the power to sell the subject property. The special power of attorney can be included in the general power when it is specified therein the act or transaction for which the special power is required. The general power of attorney was accepted by the Register of Deeds when the title to the subject property was canceled and transferred in the name of private respondent. In LRC Consulta No. 123, Register of Deeds of Albay, Nov. 10, 1956, it stated that: “Whether the instrument be denominated as “general power of attorney” or “special power of attorney,” what matters is the extent of the power or powers contemplated upon the agent or attorney in fact. If the power is couched in general terms, then such power cannot go beyond acts of administration. However, where the power to sell is specific, it not being merely implied, much less couched in general terms, there can not be any doubt that the attorney in fact may execute a valid sale. An instrument may be captioned as “special power of attorney” but if the powers granted are couched in general terms without mentioning any specific power to sell or mortgage or to do other specific acts of strict dominion, then in that case only acts of administration may be deemed conferred.” Petitioner contends that his signature on the power of attorney was falsified. He also alleges that the same was not duly notarized for as testified by Atty. Tubig himself, he did not sign thereon nor was it ever recorded in his notarial register. To bolster his argument, petitioner had presented checks, marriage certificate and his residence certificate to prove his alleged genuine signature which when compared to the signature in the power of attorney, showed some difference.

We found, however, that the basis presented by the petitioner was inadequate to sustain his allegation of forgery. Mere variance of the signatures cannot be considered as conclusive proof that the same were forged. Forgery cannot be presumed.[17] Petitioner, however, failed to prove his allegation and simply relied on the apparent difference of the signatures. His denial had not established that the signature on the power of attorney was not his. We agree with the conclusion of the lower court that private respondent was an innocent purchaser for value. Respondent Aglaloma relied on the power of attorney presented by petitioner’s wife, Irma. Being the wife of the owner and having with her the title of the property, there was no reason for the private respondent not to believe in her authority. Moreover, the power of attorney was notarized and as such, carried with it the presumption of its due execution. Thus, having had no inkling on any irregularity and having no participation thereof, private respondent was a buyer in good faith. It has been consistently held that a purchaser in good faith is one who buys property of another, without notice that some other person has a right to, or interest in such property and pays a full and fair price for the same, at the time of such purchase, or before he has notice of the claim or interest of some other person in the property.[18] Documents acknowledged before a notary public have the evidentiary weight with respect to their due execution. The questioned power of attorney and deed of sale, were notarized and therefore, presumed to be valid and duly executed. Atty. Tubig denied having notarized the said documents and alleged that his signature had also been falsified. He presented samples of his signature to prove his contention. Forgery should be proved by clear and convincing evidence and whoever alleges it has the burden of proving the same. Just like the petitioner, witness Atty. Tubig merely pointed out that his signature was different from that in the power of attorney and deed of sale. There had never been an accurate examination of the signature, even that of the petitioner. To determine forgery, it was held in Cesar vs. Sandiganbayan[19] (quoting Osborn, The Problem of Proof) that: “The process of identification, therefore, must include the determination of the extent, kind, and significance of this resemblance as well as of the variation. It then becomes necessary to determine whether the variation is due to the

operation of a different personality, or is only the expected and inevitable variation found in the genuine writing of the same writer. It is also necessary to decide whether the resemblance is the result of a more or less skillful imitation, or is the habitual and characteristic resemblance which naturally appears in a genuine writing. When these two questions are correctly answered the whole problem of identification is solved.” Even granting for the sake of argument, that the petitioner’s signature was falsified and consequently, the power of attorney and the deed of sale were null and void, such fact would not revoke the title subsequently issued in favor of private respondent Aglaloma. In the case of Tenio-Obsequio vs. Court of Appeals,[20] it was held, viz.:

Considering the foregoing premises, We found no error in the appreciation of facts and application of law by the lower court that will warrant the reversal or modification of the appealed decision. ACCORDINGLY, the petition for review is hereby DENIED for lack of merit. SO ORDERED.

EOVILLO

C. AGUSTIN, petitioner, vs. COURT OF APPEALS and FILINVEST FINANCE CORP., respondents. RESOLUTION

“The right of an innocent purchaser for value must be respected and protected, even if the seller obtained his title through fraud. The remedy of the person prejudiced is to bring an action for damages against those who caused or employed the fraud, and if the latter are insolvent, an action against the Treasurer of the Philippines may be filed for recovery of damages against the Assurance Fund.” Finally, the trial court did not err in applying equitable estoppel in this case. The principle of equitable estoppel states that where one or two innocent persons must suffer a loss, he who by his conduct made the loss possible must bear it. From the evidence adduced, it should be the petitioner who should bear the loss. As the court a quo found: “Besides, the records of this case disclosed that the plaintiff is not entirely free from blame. He admitted that he is the sole person who has access to TCT No. 49138 and other documents appertaining thereto (TSN, May 23, 1989, pp. 7-12). However, the fact remains that the Certificate of Title, as well as other documents necessary for the transfer of title were in the possession of plaintiff’s wife, Irma L. Veloso, consequently leaving no doubt or any suspicion on the part of the defendant as to her authority. Under Section 55 of Act 496, as amended, Irma’s possession and production of the Certificate of Title to defendant operated as “conclusive authority from the plaintiff to the Register of Deeds to enter a new certificate.”[21]

FRANCISCO, J.: This is an appeal by certiorari from the decision of respondent Court of Appeals in CA-G.R. No. 24684[1] which affirmed the order of Regional Trial Court, Branch 40, Manila, in Civil Case No. 84804.[2] The dispute stemmed from an unpaid promissory note dated October 28, 1970, executed by petitioner Leovillo C. Agustin in favor of ERM Commercial for the amount of P43,480.80. The note was payable in monthly installments[3] and secured by a chattel mortgage over an Isuzu diesel truck,[4] both of which were subsequently assigned to private respondent Filinvest Finance Corporation.[5] When petitioner defaulted in paying the installments, private respondent demanded from him the payment of the entire balance or, in lieu thereof, the possession of the mortgaged vehicle. Neither payment nor surrender was made. Aggrieved, private respondent filed a complaint with the Regional Trial Court of Manila, Branch 26 (RTC Branch 26) against petitioner praying for the issuance of a writ of replevin or, in the alternative, for the payment of P32,723.97 plus interest at the rate of 14% per annum from due date until fully paid.[6] Trial ensued and, thereafter, awrit of replevin was issued by RTC Branch 26. By virtue thereof, private respondent acquired possession of the vehicle. Upon repossession, the latter discovered that the vehicle was no longer in running condition and that several parts were missing which private respondent replaced. The vehicle was then foreclosed and sold at public auction.

Private respondent subsequently filed a “supplemental complaint” claiming additional reimbursement worth P8,852.76 as value of replacement parts[7] and for expenses incurred in transporting the mortgaged vehicle from Cagayan to Manila. In response, petitioner moved to dismiss the supplemental complaint arguing that RTC Branch 26 had already lost jurisdiction over the case because of the earlier extra-judicial foreclosure of the mortgage. The lower court granted the motion and the case was dismissed.[8] Private respondent elevated the matter to the appellate court, docketed as CA-G.R. No. 56718-R, which set aside the order of dismissal and ruled that repossession expenses incurred by private respondent should be reimbursed.[9] This decision became final and executory, hence the case was accordingly remanded to the Regional Trial Court of Manila, Branch 40 (RTC Branch 40) for reception of evidence to determine the amount due from petitioner.[10] After trial, RTC Branch 40 found petitioner liable for the repossession expenses, attorney's fees, liquidated damages, bonding fees and other expenses in the seizure of the vehicle in the aggregate sum of P18,547.38. Petitioner moved for reconsideration. Acting thereon, RTC Branch 40 modified its decision by lowering the monetary award toP8,852.76, the amount originally prayed for in the supplemental complaint.[11] Private respondent appealed the case with respect to the reduction of the amount awarded. Petitioner, likewise, appealed impugning the trial court’s order for him to pay private respondent P8,852.76, an amount over and above the value received from the foreclosure sale. Both appeals were consolidated and in CA- G.R. No. 24684, the modified order of RTC Branch 40 was affirmed. Petitioner filed a motion for reconsideration, but to no avail[12] Hence, this petition for review on certiorari. Petitioner contends that the award of repossession expenses to private respondent as mortgagee is "contrary to the letter, intent and spirit of Article 1484[13] of the Civil Code".[14] He asserts that private respondent’s repossession expenses have been amply covered by the foreclosure of the chattel mortgage, hence he could no longer be held liable. The arguments are devoid of merit. Petitioner’s contentions, we note, were previously rejected by respondent court in its decision in CA-G.R. No. 56718-R the dispositive portion of which provides as follows:

"WHEREFORE, the order dismissing the case is hereby set aside and the case is remanded to the lower court for reception of evidence of `expenses properly incurred in effecting seizure of the chattel (and) of recoverable attorney's fees in prosecuting the action for replevin' as `repossession expenses' prayed for in the supplemental complaint, without pronouncement as to costs."[15] which ruling has long acquired finality. It is clear, therefore, that the appellate court had already settled the propriety of awarding repossession expenses in favor of private respondent. The remand of the case to RTC Branch 40 was for the sole purpose of threshing out the correct amount of expenses and not for relitigating the accuracy of the award. Thus, the findings of RTC Branch 40, as affirmed by the appellate court in CA-G.R. No. 24684, was confined to the appreciation of evidence relative to the repossession expenses for the query or issue passed upon by the respondent court in CA-G.R. No. 56718-R (propriety of the award for repossession expenses) has become the “law of the case”. This principle is defined as “a term applied to an established rule that when an appellate court passes on a question and remands the cause to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal.”[16] Having exactly the same parties and issues, the decision in the former appeal (CA-G.R. No. 56718-R) is now the established and controlling rule. Petitioner may not therefore be allowed in a subsequent appeal (CA-G.R. No. 24684) and in this petition to resuscitate and revive formerly settled issues. Judgment of courts should attain finality at some point in time, as in this case, otherwise, there will be no end to litigation. At any rate, even if we were to brush aside the “law of the case” doctrine we find the award for repossession expenses still proper. In Filipinas Investment & Finance Corporation v. Ridad,[17] the Court recognized an exception to the rule stated under Article 1484(3) upon which petitioner relies. Thus: “x x x Where the mortgagor plainly refuses to deliver the chattel subject of the mortgage upon his failure to pay two or more installments, or if he conceals the chattel to place it beyond the reach of the mortgagee, what then is the mortgagee expected to do? x x x It logically follows as a matter of common sense, that the necessary expenses

incurred in the prosecution by the mortgagee of the action for replevin so that he can regain possession of the chattel, should be borne by the mortgagor. Recoverable expenses would, in our view, include expenses properly incurred in effecting seizure of the chattel and reasonable attorney’s fees in prosecuting the action for replevin.”[18] Anent the denial of the award for attorney’s fees, we find the same in order. The trial court, as well as respondent court, found no evidence to support the claim for attorney's fees which factual finding is binding on us.[19] We find no compelling reason, and none was presented, to set aside this ruling. ACCORDINGLY, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is hereby AFFIRMED in toto. SO ORDERED.

AMELIA D. DE MESA, ARACELI ADATO, RODRIGO ALVARAN, AIDA CASTRO, BALTAZAR ESTRELLES, ANTONIO A. FERRER, DANILO GARCIA, JULIO M. GONZALES, MARRIETA A. JOSE, PEPITA JUNTADO, EDUARDO U. LAGO, NESTOR RODA, JAIME SANCHEZ and JUANITA SANCHEZ, petitioners, vs. PEPSI COLA PRODUCTS PHILS., INC. and PEPSICO INC., respondents. RESOLUTION QUISUMBING, J.: For review on certiorari is the Order,[1] dated April 18, 2002, of the Regional Trial Court of Makati City, Branch 142 in Civil Cases Nos. 94-2414 to 94-2421. In the said Order, the RTC granted herein respondents’ motion to dismiss the complaints filed by petitioners herein based on the principle of stare decisis. The instant case arose from the same set of facts as (1) Mendoza v. Pepsi-Cola Products Philippines, Inc., et al., G.R. No. 153183 promulgated on July 24, 2002[2] affirming the Court of Appeals Decision, dated April 16, 2002, in CA-G.R. CV No. 53860;[3] and (2) Rodrigo v.

Pepsi Cola Products (Phils.), Inc. and Pepsico, Inc., G.R. No. 149411, dated October 1, 2001, which also affirmed the Court of Appeals Decision of May 21, 2001 in CA-G.R. CV No. 62837.[4]

Numerous holders of the supposedly winning “349” crowns were not honored and paid by respondents, which led these rejected crown holders to file separate complaints for specific performance and damages.

The facts are culled from the aforesaid Decisions of the Court of Appeals as affirmed by this Court.

Civil Case No. 93-68351 was originally filed before the Regional Trial Court of Manila, Branch 16, but the plaintiffs in the said case withdrew their complaint, leaving Gerson Mendoza as the sole plaintiff in Gerson M. Mendoza v. Pepsi-Cola Products Phils., Inc. and Pepsico, Inc.[7] The other plaintiffs re-filed their complaints before the Regional Trial Court of Manila, Branch 50, entitled Romulo Rodrigo, et al. v. Pepsi Cola Products Philippines, Inc., et al., docketed as Civil Case No. 9471403.[8]

Petitioners are holders of soft drink bottle caps bearing the number “349,” allegedly a winning combination in a contest sponsored by respondents Pepsi Cola Products Phils., Inc. (PCPPI) and PEPSICO, Inc. (PI). Respondent PCPPI is a domestic corporation engaged in the production, bottling, and distribution of carbonated drinks, while respondent PI is a foreign corporation licensed to do business in the Philippines and is the major stockholder of PCPPI. D.G. Consultores, a Mexican consulting firm that handled similar promotions in other countries, was tasked to randomly pre-select the winning numbers and send to respondents a list of the 60 winning numbers with their corresponding security codes. The process of selecting the winning numbers was implemented with the approval of the Department of Trade and Industry (DTI). During the initial promotion period, from February 17 to May 8, 1992, respondents seeded 1000 numbers, 60 of which were winning numbers, 510 non-winning numbers, while the remaining 430 were unused. To ensure that the winning numbers would not be tampered, the DTI required respondents to submit the list of winning numbers including their security codes which was then deposited in a safety deposit box in a bank.[5] Owing to the promotional campaign’s success, respondents extended the “Number Fever” by five more weeks, from May 10 to June 12, 1992. Pepsi again tapped D.G. Consultores to predetermine the 25 additional winning numbers from the list of unused numbers. On May 25, 1992, respondents announced “349” as the winning number for the May 26 draw. Later the same night, Quintin Gomez, Jr., then PCPPI’s Marketing Services Manager called DTI Director Madarang informing her that due to some security code problems a mistake had been made in the announcement of number “349” as the winning number.[6]

For their part, petitioners herein filed their separate complaints, docketed as Civil Cases Nos. 94-2414 to 942421, before the Regional Trial Court of Makati, Branch 142. In the Mendoza case, the RTC dismissed the complaint filed against herein respondents for specific performance and damages in connection with the Number Fever fiasco.[9] Mendoza appealed to the Court of Appeals, in CA-G.R. CV No. 53860, which was dismissed for lack of merit.[10] Unfazed, Mendoza filed with this Court a petition for review, which was denied for failure to sufficiently show that the Court of Appeals committed any reversible error.[11] In the Rodrigo case, the RTC likewise dismissed the complaint against herein respondents for specific performance and damages arising from the said promotion.[12] On appeal, docketed as CA-G.R. CV No. 62837, the Court of Appeals affirmed the RTC decision.[13] A petition for review was subsequently filed with this Court, which was denied for failure to show that a reversible error was committed by the appellate court. The motion for reconsideration was also denied with finality[14] and entry of judgment was made.[15] However, prior to the resolution of the Mendoza and Rodrigo cases, herein petitioners filed with the RTC, on December 11, 2000, a motion for leave[16] to (1) adopt the previous testimonial and documentary evidence in the Mendoza and Rodrigo cases; or (2) archive the case until final resolution of the said two cases, which were then pending with the Court of Appeals.

The RTC granted the said motion on January 8, 2001 and the case was accordingly archived.[17] Meantime, the Rodrigo case became final and executory on February 5, 2002 in view of our denial of therein petitioners’ petition for review on certiorari and motion for reconsideration. Hence, on February 20, 2002, herein respondents filed with the RTC a motion to dismiss[18] the complaints filed by petitioners herein invoking the principle of stare decisis. The RTC, in its assailed Order,[19] granted the motion to dismiss ratiocinating as follows: The Court finds the instant motion meritorious under the principle of stare decisis. The said doctrine embodies the legal maxim that a principle or rule of law which has been established by the decision of a court of controlling jurisdiction will be followed in other cases involving similar situation. It is founded on the necessity for securing certainty and stability in the law and does not require identity or privy of parties. This is explicitly ordained in Article 8 of the Civil Code which provides that decisions applying or interpreting the laws or the Constitution shall form part of the legal system. Such decisions “assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those in duty bound to enforce obedience thereto” (Kilosbayan, Inc. et al. vs. Manuel Morato, G.R. No. 118910, July 17, 1995). In the instant cases as well as in Civil Case No. 93-68351 (the Mendoza case), not only are the legal rights and relations of the parties substantially the same as those passed upon in Civil Case No. 94-71403 (the Rodrigo case), but the facts, the applicable laws, the causes of action, the issues, and the testimonial and documentary evidence are identical such that a ruling in one case, i.e. the Rodrigo case in Civil Case No. 94-71403, under the rule of stare decisis, is a bar to any attempt to relitigate the same issue.[20] Petitioners now come to us in this petition for review claiming that (1) the principle of res judicata does not apply; and (2) the dismissal of the complaint was

premature as petitioners’ motion to archive the case and the grant thereof was based on the condition that there be a final resolution in the Mendoza and Rodrigo cases.[21] Simply put, the sole issue is whether the present case is barred by this Court’s ruling in the Mendoza and Rodrigo cases. Petitioners contend that res judicata does not apply as there is no identity of parties to begin with. Moreover, they argue that stare decisis is not a hard and fast rule. They insist another review should be taken on the cause of action in this case because the Court of Appeals, in the Mendoza and Rodrigo cases, erred in ruling that the security code determines the real winning crowns. They claim that the trial court’s dismissal of their complaint was premature. Lastly, petitioners posit that there was a breached contract between the parties; therefore, respondents should be made to perform their contractual obligation. For their part, respondents counter that the RTC correctly dismissed petitioners’ complaint on the ground of res judicata. Respondents contend that, like the Mendoza and Rodrigo cases, the civil cases filed by petitioners arose from the conduct of respondents’ “Number Fever” promotion. Petitioners’ causes of action, testimonial and documentary evidence, are the same as those in the Mendoza and Rodrigo cases. Lastly, respondents point out that the findings of fact in the said two cases are also the same, i.e.: (i) Respondents did not breach any contract since the “349” crowns with security code “L-2560-FQ” are not winning crowns; and (ii) Respondents were not negligent in the conduct of their promotion and they exerted efforts to ensure the integrity and smooth conduct of the same. The instant petition must be denied. The principle of stare decisis et non quieta movere[22] is entrenched in Article 8 of the Civil Code, to wit: ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. It enjoins adherence to judicial precedents. It requires our courts to follow a rule already established in a

final decision of the Supreme Court. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument.[23] In the instant case, the legal rights and relations of the parties, the facts, the applicable laws, the causes of action, the issues, and the evidence are exactly the same as those in the decided cases of Mendoza and Rodrigo, supra. Hence, nothing is left to be argued. The issue has been settled and this Court’s final decision in the said cases must be respected. This Court’s hands are now tied by the finality of the said judgments. We have no recourse but to deny the instant petition. WHEREFORE, the instant petition is hereby DENIED. The assailed Order of the Regional Trial Court of Makati City, Branch 142, in Civil Cases Nos. 94-2414 to 94-2421, is AFFIRMED. Costs against petitioners. SO ORDERED.

MARVIN MERCADO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Court as the penalty of thirty (30) years was already reclusion perpetua, pursuant to the last paragraph of Sec. 13, Rule 124,[2] of the 2000 Rules of Criminal Procedure. We cannot sustain the petition; we agree instead with the Court of Appeals. In denying the prayer of petitioner, the Court of Appeals correctly held that the provision of Sec. 13, Rule 124, relied upon by petitioner, was applicable only when the penalty imposed wasreclusion perpetua or higher as a single indivisible penalty, i.e., the penalty was at least reclusion perpetua. Hence, the penalty imposed by the appellate court on the accused was clearly in accordance with Sec. 14 of RA 6538,[3] which is not considered reclusion perpetua for purposes of Sec. 13, Rule 124.[4] The Court of Appeals in its assailed resolution relied on People v. Omotoy[5] where the Regional Trial Court found the accused guilty of arson and sentenced him to imprisonment ranging from twelve (12) years of prision mayor maximum, as minimum, to reclusion perpetua. The case reached this Court on automatic appeal. In Footnote 16 of the decision, it was observed -

MARVIN MERCADO, together with Rommel Flores, Michael Cummins, Mark Vasques and Enrile Bertumen, was charged with and convicted of violation of R.A. 6538 or The Anti-Carnapping Act of 1972, as amended, for which he and his co-accused were sentenced to a prison term of twelve (12) years and one (1) day as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum.[1]

The appeal was taken directly to this Tribunal for the reason no doubt that the penalty of reclusion perpetua is involved, albeit joined to prision mayor in its maximum period in accordance with the Indeterminate Sentence Law. Actually, the appeal should have gone to the Court of Appeals since strictly speaking, this Court entertains appeals in criminal cases only where “the penalty imposed is reclusion perpetua or higher” (Sec. 5[2](d), Article VIII, Constitution), i.e., the penalty is at least reclusion perpetua (or life imprisonment, in special offenses). The lapse will be overlooked so as not to delay the disposition of the case. It is of slight nature, the penalty of reclusion perpetua having in fact been imposed on the accused, and causes no prejudice whatsoever to any party.

The case before us concerns only the petition for review of accused Marvin Mercado where he assails his conviction, and arguing that the Court of Appeals having increased the penalty imposed by the court a quo to a prison term of seventeen (17) years and four (4) months to thirty (30) years, should have certified the case to this

Petitioner now asks whether the last paragraph of Sec. 13, Rule 124, of the 2000 Rules of Criminal Procedure is applicable to the instant case considering that the penalty imposed was seventeen (17) years and four (4) months to thirty (30) years.

DECISION BELLOSILLO, J.:

Article 27 of The Revised Penal Code states that the penalty of reclusion perpetua shall be from twenty (20) years and one (1) day to forty (40) years. While the thirty (30)-year period falls within that range, reclusion perpetua nevertheless is a single indivisible penalty which cannot be divided into different periods. The thirty (30)year period for reclusion perpetua is only for purposes of successive service of sentence under Art. 70 of The Revised Penal Code.[6] More importantly, the crime committed by petitioner is one penalized under RA 6538 or The Anti-Carnapping Act of 1972 which is a special law and not under The Revised Penal Code.Unless otherwise specified, if the special penal law imposes such penalty, it is error to designate it with terms provided for in The Revised Penal Code since those terms apply only to the penalties imposed by the Penal Code, and not to the penalty in special penal laws.[7] This is because generally, special laws provide their own specific penalties for the offenses they punish, which penalties are not taken from nor refer to those in The Revised Penal Code.[8] The penalty of fourteen (14) years and eight (8) months under RA 6538 is essentially within the range of the medium period of reclusion temporal. However, such technical term under The Revised Penal Code is not similarly used or applied to the penalty for carnapping. Also, the penalty for carnapping attended by the qualifying circumstance of violence against or intimidation of any person or force upon things, i.e., seventeen (17) years and four (4) months to thirty (30) years, does not correspond to that in The Revised Penal Code.[9] But it is different when the owner, driver or occupant of the carnapped vehicle is killed or raped in the course of the carnapping or on the occasion thereof, since this is penalized with reclusion perpetua to death.[10] Hence, it was error for the trial court to impose the penalty of “x x x imprisonment of TWELVE (12) YEARS and ONE (1) DAY as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal as maximum.”[11] For these reasons the use of the term reclusion temporal in the decretal portion of its decision is not proper. Besides, we see no basis for the trial court to set the minimum penalty at twelve (12) years and one (1) day since RA 6538 sets the minimum penalty for carnapping at fourteen (14) years and eight (8) months.

We see no error by the appellate court in relying on a Footnote in Omotoy[12] to affirm the conviction of the accused. The substance of the Footnote may not be the ratio decidendi of the case, but it still constitutes an important part of the decision since it enunciates a fundamental procedural rule in the conduct of appeals. That this rule is stated in a Footnote to a decision is of no consequence as it is merely a matter of style. It may be argued that Omotoy is not on all fours with the instant case since the former involves an appeal from the Regional Trial Court to the Supreme Court while the case at bar is an appeal from the Court of Appeals to the Supreme Court. As enunciated in Omotoy, the Supreme Court entertains appeals in criminal cases only where the penalty imposed is reclusion perpetua or higher. The basis for this doctrine is the Constitution itself which empowers this Court to review, revise, reverse, modify or affirm on appeal, as the law or the Rules of Court may provide, final judgments of lower courts in all criminal cases in which the penalty imposed is reclusion perpetua or higher.[13] Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from entering judgment thereon, certify the case and elevate the entire records to this Court for review.[14] This will obviate the unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and can, without bothering the Court of Appeals which has fully completed the exercise of its jurisdiction, do justice in the case.[15] On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of the case may be had only by petition for review on certiorari under Rule 45[16]where only errors or questions of law may be raised. Petitioner, in his Reply, also brings to fore the issue of whether there was indeed a violation of The AntiCarnapping Act. This issue is factual, as we shall find hereunder. In the evening of 26 May 1996 Leonardo Bhagwani parked the subject Isuzu Trooper in front of his house at No. 7015-B Biac-na-Bato St., Makati City, Metro Manila. The vehicle was owned by Augustus Zamora but was used

by Bhagwani as a service vehicle in their joint venture. The following day the Isuzu Trooper was nowhere to be found prompting Bhagwani to report its disappearance to the Makati Police Station and the Anti-Carnapping (ANCAR) Division which immediately issued an Alarm Sheet.[17] On 31 May 1996 Bhagwani’s neighbor, fireman Avelino Alvarez, disclosed that he learned from his daughter, a common-law wife of accused Michael Cummins, that the accused Rommel Flores, Mark Vasques, Enrile Bertumen and Michael Cummins himself stole the Isuzu Trooper. Alvarez’s daughter however refused to issue any statement regarding the incident.[18] In the evening of 31 May 1996 SPO3 “Miling” Flores brought to his house Michael Cummins, Mark Vasques, Enrile Bertumen, Rommel Flores, and complaining witness Bhagwani. In that meeting, Cummins, Vasques, Bertumen and Flores admitted that they took the vehicle and used it in going to Laguna, La Union and Baguio.[19] They claimed however that it was with the knowledge and consent of Bhagwani. They alleged that on the night they took the vehicle, they invited Bhagwani to join them in their outing to Laguna. But when Bhagwani declined, they asked him instead if they could borrow the Isuzu Trooper. Bhagwani allegedly agreed and even turned over the keys to them.[20] Petitioner Marvin Mercado was absent during that confrontasi in the house of SPO3 “Miling” Flores but his co-accused narrated his participation in the crime.[21] The Court of Appeals affirmed their conviction but increased the penalty imposed on the four (4) accused from a prison term of twelve (12) years and one (1) day as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum to seventeen (17) years and four (4) months to thirty (30) years.[22] Petitioner insists that the accused were more motivated by fun rather than theft in taking the Isuzu Trooper, and that they merely took the vehicle for a joyride with no intention of stealing it. If they were really thieves, according to petitioner, they would have sold the vehicle outright instead of simply abandoning it in Baguio.[23] Petitioner apparently overlooks the fact that this is a petition for review on certiorari where only questions of law, and not questions of fact, may be raised. The issue before us being factual, a reevaluation of the facts and the evidence may not be entertained in this appeal. Besides,

findings of fact of the trial court, when affirmed by the Court of Appeals, are binding upon the Supreme Court.[24] This rule may be disregarded only when the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court, or are not supported by the evidence on record. But there is no ground to apply this exception to the instant case. This Court will not assess all over again the evidence adduced by the parties particularly where as in this case the findings of both the trial court and the Court of Appeals completely coincide.[25] However, we disagree with the Court of Appeals on its imposition of the penalty. Republic Act No. 6538 imposes the penalty of imprisonment for seventeen (17) years and four (4) months to thirty (30) years when the carnapping is committed by means of violence against or intimidation of any person, or force upon things. The evidence in this case shows that the accused broke a quarter window of the Isuzu Trooper to gain access to it, thus demonstrating that force was used upon the vehicle; nonetheless, we believe that this does not merit the imposition of the full penalty. With the application of The Indeterminate Sentence Law, the penalty to be imposed may be reduced to an indeterminate prison term of seventeen (17) years and four (4) months to twenty-two (22) years. WHEREFORE, the assailed Decision of the Court of Appeals denying the Motion and Manifestation of petitioner Marvin Mercado dated 19 January 2001 is AFFIRMED with the MODIFICATION that the penalty imposed is reduced to an indeterminate prison term of seventeen (17) years and four (4) months to twenty-two (22) years. No costs. SO ORDERED. PROCOPIO VILLANUEVA, NICOLAS RETUYA and PACITA VILLANUEVA, petitioners, vs. COURT OF APPEALS and THE HEIRS OF EUSEBIA NAPISA RETUYA, respondents. DECISION CARPIO, J.: This petition for review on certiorari[1] seeks the reversal of the Court of Appeals’ Decision dated 31 January 2000 as well as its Resolution dated 25 April 2000

in CA-G.R. No. CV-46716. The assailed Decision dismissed petitioners’ appeal of the Decision of the Regional Trial Court, Branch 55, Mandaue City (“trial court”). On 13 October 1988, Eusebia Napisa Retuya (“Eusebia”) filed a complaint before the trial court against her husband Nicolas Retuya (“Nicolas”), Pacita Villanueva (“Pacita”), and Nicolas’ son with Pacita, Procopio Villanueva (“Procopio”). Eusebia sought the reconveyance from Nicolas and Pacita of several properties listed in paragraph 2 of the complaint (“subject properties”), claiming the subject properties are her conjugal properties with Nicolas. Eusebia also prayed for accounting, damages and the delivery of rent and other income from the subject properties.

Antecedent Facts

The facts as found by the trial court are as follows: Plaintiff Eusebia Napisa Retuya, is the legal wife of defendant Nicolas Retuya, having been married to the latter on October 7, 1926. Out of the lawful wedlock, they begot five (5) children, namely, Natividad, Angela, Napoleon, Salome, and Roberta. Spouses Retuya resided at Tipolo, Mandaue City. During their marriage they acquired real properties and all improvements situated in Mandaue City, and Consolacion, Cebu, more particularly described as follows: ‘1. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24951; 2. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24952; 3. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24953; 4. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24954;

5. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24956; 6. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24957; 7. A parcel of land located at Pulpugan, Consolacion, Cebu under tax dec. No. 24958; 8. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01042; 9. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01043; 10. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01046; 11. A parcel of land located at Tipolo, Mandaue City, covered by tax dec. No. 01041; 12. A parcel of land located at NawanaoSubangdaku, Mandaue City covered by tax dec. No. 01488; 13. A parcel of land located at Baklid, Mandaue City, covered by tax dec. No. 00492; 14. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01044; 15. A residential house located at Tipolo, Mandaue City covered by tax dec. No. 01050; 16. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01048; 17. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01051; 18. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01047;

19. A parcel of land located at Banilad, Mandaue City covered by tax dec. No. 02381;

1731 over an area of 6,000 sq. meters for an annual rental of P9,500.00 for a period of 2 years from June 1, 1982;

family asking for settlement but no settlement was reached by the parties.

20. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01049;

f) Visayan Timber and Machinery Corp. – over a parcel of land at Nawanaw, Mandaue City, for a period of 2 years from June 1, 1987 and renewable for another 12 years at an annual income of P4,000.00;

Further, plaintiff’s witness, Natividad Retuya, testified that the parcel of land covered by tax declaration marked Exhibit “T” was the property bought by her father from Adriano Marababol for at the time of purchase of the property, defendant Pacita Villanueva had no means of livelihood (TSN, p. 6).

21. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01045; 22. A parcel of land located at Tipolo, Mandaue City covered by tax dec. No. 01450 (in the name of Pacita Villanueva).’ Also, defendant, Nicolas Retuya, is co-owner of a parcel of land situated in Mandaue City which he inherited from his parents Esteban Retuya and Balbina Solon as well as the purchasers of hereditary shares of approximately eight (8) parcels of land in Mandaue City. Some of these properties above-mentioned earn income from coconuts and the other lands/houses are leased to the following: a) Mandaue Food Products Company – for Lot 121-F, Lot 121-G and Lot 121-H under TCT No. 11300 at an annual rental of P10,800.00; b) Barben Wood Industries, Inc. – for Lot 148 covered by TCT No. 1731 for an annual rental of P21,600.00; c) Metaphil, Inc. – parcel of land consisting of 2,790.51 sq. meters at the rate of P2,700.00 annually for the first five (5) years, and P3,240.00 for the second years; d) Benedicto Development Corp. – for a portion of Lot 148 covered by TCT No. 1731 for a period of 20 years at an annual rate of P3,500.00 renewable for another 20 years after April 1, 1995 at an annual rate of P4,000.00; e) Benedicto Development Corporation – for a portion of Lot No. 148 covered by Certificate of Title No.

g) House lessees listed in Exhibit “13” with total monthly rentals of P1,975.00 a month for the 24 lessees or P24,700.00 annually. (Exhs. “7” to “13”) In 1945, defendant Nicolas Retuya no longer lived with his legitimate family and cohabited with defendant, Pacita Villanueva, wherein defendant, Procopio Villanueva, is their illegitimate son. Nicolas, then, was the only person who received the income of the above-mentioned properties.

The trial court rendered its Decision on 16 February 1994 in favor of Eusebia. The dispositive portion of the Decision states: WHEREFORE, in view of the foregoing considerations, judgment is rendered in favor of the plaintiff Eusebia Napisa Retuya and against defendants Procopio Villanueva, Nicolas Retuya and Pacita Villanueva:

Defendant, Pacita Villanueva, from the time she started living in concubinage with Nicolas, has no occupation, she had no properties of her own from which she could derive income.

1. Declaring the properties listed in paragraph 2 of the amended complaint as conjugal properties of the spouses plaintiff Eusebia Retuya and the defendant Nicolas Retuya;

In 1985, Nicolas suffered a stroke and cannot talk anymore, cannot walk anymore and they have to raise him up in order to walk. Natividad Retuya knew of the physical condition of her father because they visited him at the hospital. From the time defendant Nicolas Retuya suffered a stroke on January 27, 1985 and until the present, it is defendant Procopio Villanueva, one of Nicolas’ illegitimate children who has been receiving the income of these properties. Witness Natividad Retuya went to Procopio to negotiate because at this time their father Nicolas was already senile and has a childlike mind. She told defendant, Procopio that their father was already incapacitated and they had to talk things over and the latter replied that it was not yet the time to talk about the matter.

2. Ordering the transfer of the sole administration of conjugal properties of the spouses Eusebia Retuya and Nicolas Retuya in accordance with Art. 124 of the Family Code to the plaintiff Eusebia Napisa Retuya;

Plaintiff, then, complained to the Barangay Captain for reconciliation/mediation but no settlement was reached, hence, the said official issued a certification to file action. Written demands were made by plaintiff, through her counsel, to the defendants, including the illegitimate

3. Ordering defendant Procopio Villanueva to account and turnover all proceeds or rentals or income of the conjugal properties from January 27, 1985 when he took over as ‘administrator’ thereof and until he shall have ceased administering the same in accordance with the judgment of this Court; 4. Ordering defendants jointly and severally to reconvey the parcel of land situated at Tipolo, Mandaue City now in the name of defendant Pacita Villanueva under tax dec. No. 01450 and transfer the same into the names of the conjugal partners Eusebia N. Retuya and Nicolas Retuya;

5. Ordering the City Assessor’s Office of Mandaue City to cancel tax declaration No. 01450 in the name of Pacita Villanueva and direct the issuance of a new title and tax declaration in the names of Eusebia Napisa Retuya and Nicolas Retuya;

Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed conjugal unless the contrary is proved.

6. Ordering defendants jointly and severally to reconvey that certain building of strong materials located at Tipolo, Mandaue City under tax dec. No. 01450 into the names of Eusebia Retuya and Nicolas Retuya;

The trial court ruled that the documents and other evidence Eusebia presented constitute “solid evidence” which proved that the subject properties were acquired during her marriage with Nicolas. This made the presumption in Article 116 applicable to the subject properties. Thus, the trial court ruled that Eusebia had proved that the subject properties are conjugal in nature. On the other hand, the trial court found that petitioners failed to meet the standard of proof required to maintain their claim that the subject properties are paraphernal properties of Nicolas. The trial court added that Pacita presented no “factual solidity” to support her claim that she bought Lot No. 152[2] exclusively with her own money.

7. Ordering defendants jointly and severally to pay plaintiff the sum of P50,000.00 by way of attorney’s fees and expenses of litigation in the sum of P5,000.00 plus the costs. SO ORDERED. Petitioners appealed the trial court’s decision to the Court of Appeals. Eusebia died on 23 November 1996. Thereafter, Eusebia’s heirs substituted her pursuant to the resolution of the Court of Appeals dated 7 April 1997. The Court of Appeals eventually upheld the Decision of the trial court but deleted the award of attorney’s fees, ruling in this wise: WHEREFORE, the decision dated February 16, 1994 is AFFIRMED with the modification that the award of attorney’s fees of P50,000.00 is deleted. SO ORDERED.

COURT THAT THE PROPERTIES LISTED IN PARAGRAPH 2 OF THE COMPLAINT ARE CONJUGAL PROPERTIES OF NICOLAS RETUYA AND EUSEBIA RETUYA ALTHOUGH THIS WAS NOT ONE OF THE CAUSES OF ACTION IN EUSEBIA’S COMPLAINT. 2.

WHETHER THE COURT OF APPEALS ERRED IN APPLYING THE PRESUMPTION THAT PROPERTIES ACQUIRED DURING THE EXISTENCE OF THE MARRIAGE OF NICOLAS RETUYA AND EUSEBIA RETUYA ARE CONJUGAL.

3.

WHETHER THE COURT OF APPEALS ERRED IN NOT APPLYING INSTEAD THE PRESUMPTION UNDER ARTICLE 148 OF THE FAMILY CODE IN FAVOR OF CO-OWNERSHIP BETWEEN NICOLAS RETUYA AND PACITA VILLANUEVA.

4.

WHETHER THE COURT OF APPEALS ERRED IN NOT DECLARING THAT THE ACTION FOR RECONVEYANCE OVER LOT NO. 152 IS ALREADY BARRED BY PRESCRIPTION OR LACHES.[3]

The Court of Appeals’ Ruling

The Court of Appeals concurred with the findings of the trial court. The appellate court found that Pacita failed to rebut the presumption under Article 116 of the Family Code that the subject properties are conjugal. The appellate court dismissed Pacita’s defense of prescription and laches since she failed to have the issue included in the pre-trial order after raising it in her answer with her copetitioners.

Petitioners filed a Motion for Reconsideration on 23 February 2000 which the Court of Appeals denied in a Resolution dated 11 May 2000.

The Issues

The Ruling of the Court

Hence, this petition.

The Trial Court’s Ruling

Petitioners Nicolas, Pacita and Procopio contend that both the trial and appellate courts erred in ruling in favor of Eusebia. They seek a reversal and raise the following issues for resolution: 1.

The trial court applied Article 116 of the Family Code, which reads:

WHETHER THE COURT OF APPEALS ERRED IN SUSTAINING THE DECLARATION OF THE TRIAL

The petition lacks merit.

First Issue: On the Alleged Failure To Claim that the Properties are Conjugal

Petitioners’ contention that Eusebia’s complaint failed to state that the subject properties are conjugal is absolutely without basis. A cursory reading of the complaint readily shows that the complaint maintains that the subject properties are conjugal.[4] The first sentence of the second paragraph of the complaint states: 2. The plaintiff Eusebia Retuya and defendant Nicolas Retuya are husband and wife and conjugal owners of real properties and all improvements thereon situated in Mandaue City and Consolacion, Cebu more particularly described as follows: (Emphasis added) The same claim is restated and repleaded throughout the complaint. Petitioners should know better than to clutter their appeal with useless arguments such as this. The other issues petitioners raise contest in essence the finding that the subject properties are conjugal in nature. Apart from this, the only other issue raised is whether prescription or laches bars Eusebia’s complaint. We shall resolve first the issue of prescription and laches.

Second Issue: Prescription and Laches

We agree with the Court of Appeals’ observation that while petitioners did raise the issue of prescription and laches in their Answer,[5] they failed to have the same included in the pre-trial order for consideration during the trial. Now, petitioners wish to raise the issue on appeal by relying on Section 1, Rule 9 of the Rules of Court, which provides: Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Petitioners are mistaken. The determination of issues during the pre-trial conference bars the consideration of other questions, whether during trial or on appeal.[6] Section 1 of Rule 9 covers situations where a defense or objection is not raised in a motion to dismiss or an answer. What we have before us is the exact opposite. Here, petitioners in fact raised in their answer the defense of prescription and laches. However, despite raising the defense of prescription and laches in their answer, petitioners failed to include this defense among the issues for consideration during the trial. The non-inclusion of this defense in the pre-trial order barred its consideration during the trial. Clearly, Section 1 of Rule 9 does not apply to the present case. Pre-trial is primarily intended to insure that the parties properly raise all issues necessary to dispose of a case.[7] The parties must disclose during pre-trial all issues they intend to raise during the trial, except those involving privileged or impeaching matters.[8] Although a pre-trial order is not meant to catalogue each issue that the parties may take up during the trial, issues not included in the pretrial order may be considered only if they are impliedly included in the issues raised or inferable from the issues raised by necessary implication.[9] The basis of the rule is simple. Petitioners are bound by the delimitation of the issues during the pre-trial because they themselves agreed to the same.[10] Petitioners argue that in past instances we have reviewed matters raised for the first time during appeal. True, but we have done so only by way of exception involving clearly meritorious situations.[11] This case does not fall under any of those exceptions. The fact that the case proceeded to trial, with the petitioners actively participating without raising the necessary objection, all the more requires that they be bound by the stipulations they made at the pre-trial.[12] Petitioners were well aware that they raised the defense of prescription and laches since they included it in their answer. However, for reasons of their own, they did not include this defense in the pre-trial. Able counsels represented both parties. We see no claim that either counsel erred or was negligent. This could only mean that petitioners’ counsel chose to waive, or did not consider important, the defense of prescription and laches. Petitioners are bound by their counsel’s

choice. Other than arguing that it is allowable to raise the issue for the first time on appeal, we have no explanation from petitioners why they suddenly decided to change their mind. Parties are not allowed to flip-flop. Courts have neither the time nor the resources to accommodate parties who choose to go to trial haphazardly. Moreover, it would be grossly unfair to allow petitioners the luxury of changing their mind to the detriment of private respondents at this late stage. To put it simply, since petitioners did not raise the defense of prescription and laches during the trial, they cannot now raise this defense for the first time on appeal.[13]

Third Issue: Whether the Subject Properties Are Conjugal

We proceed to the crux of this petition. We reiterate the basic rule that a petition for review should only cover questions of law.[14] Questions of fact are not reviewable. The exceptions apply only in the presence of extremely meritorious circumstances.[15] None exists in this case. We note with disfavor that most of the issues raised in this petition are factual. We caution the petitioners that this practice of deluging the Court with factual issues in defiance of well-settled rule, in the hope of having them reviewed, is unacceptable. The only issue proper for resolution is the question of whether the subject properties are conjugal. Petitioners claim that the subject properties[16] are exclusive properties of Nicolas except for Lot No. 152, which they claim is Pacita’s exclusive property. This issue is easily resolved. The Family Code provisions on conjugal partnerships govern the property relations between Nicolas and Eusebia even if they were married before the effectivity of Family Code.[17] Article 105[18] of the Family Code explicitly mandates that the Family Code shall apply to conjugal partnerships established before the Family Code without prejudice to vested rights already acquired under the Civil Code or other laws. Thus, under the Family Code, if the properties are acquired during the marriage, the presumption is that they are conjugal.[19] The burden of proof is on the party claiming that they are not conjugal.[20] This is counter-balanced by the requirement that the properties must first be proven to have been acquired during the marriage before they are presumed

conjugal.[21] Petitioners argue that Eusebia failed to prove this pre-requisite. We disagree.

Court of Cebu, Branch IV, in Civil Case No. R9602[27] involving the acquisition of Lot No. 152.

The question of whether the subject properties were acquired during the marriage of Nicolas and Eusebia is a factual issue. Both the trial and appellate courts agreed that the subject properties were in fact acquired during the marriage of Nicolas and Eusebia.[22] The tax declarations[23] covering the subject properties, along with the unrebutted testimony of Eusebia’s witnesses, establish this fact. We give due deference to factual findings of trial courts,[24] especially when affirmed by the appellate court. A reversal of this finding can only occur if petitioners show sufficient reason for us to doubt its correctness. Petitioners in the present case have not.

The decision in Civil Case No. R-9602 stated that Tranquiliana Marababol Remulta testified that the one who offered to buy the lot from her was none other than Nicolas Retuya.[28]Tranquiliana narrated that at first she refused to sign the deed of sale because the buyer placed in the deed was Pacita and not Nicolas, her understanding being that the buyer was Nicolas. We find that the trial court in the present case correctly took into consideration the decision in Civil Case No. R-9602.[29] Considering that the decision in Civil Case No. R-9602 has become final and executory, its findings of fact involving the sale of Lot No. 152 to Nicolas and Pacita are conclusive and binding on petitioners who introduced in evidence the decision.

Moreover, on whether Lot No. 152 is conjugal or not, the answer came from petitioners themselves. Nicolas and Eusebia were married on 7 October 1926. Nicolas and Pacita started cohabiting in 1936. Eusebia died on 23 November 1996. Pacita and Nicolas were married on 16 December 1996. Petitioners themselves admit that Lot No. 152 was purchased on 4 October 1957.[25] The date of acquisition of Lot No. 152 is clearly during the marriage of Nicolas and Eusebia. Since the subject properties, including Lot No. 152, were acquired during the marriage of Nicolas and Eusebia, the presumption under Article 116 of the Family Code is that all these are conjugal properties of Nicolas and Eusebia. The burden is on petitioners to prove that the subject properties are not conjugal. The presumption in Article 116, which subsists “unless the contrary is proved,” stands as an obstacle to any claim the petitioners may have. The burden of proving that a property is exclusive property of a spouse rests on the party asserting it and the evidence required must be clear and convincing.[26] Petitioners failed to meet this standard. Petitioners point out that the deed of sale, the transfer certificate of title and the tax declaration of Lot No. 152 are all in the name of Pacita. Petitioners maintain that this can only mean that Pacita is the real owner of Lot No. 152. We disagree. The totality of the evidence reveals that this was merely just one of the several schemes Nicolas employed to deprive Eusebia of their conjugal property. Ironically, petitioners themselves submitted in evidence a decision rendered by the Regional Trial

Petitioners also point out that all the other tax declarations presented before the trial court are in the name of Nicolas alone. Petitioners argue that this serves as proof of Nicolas’ exclusive ownership of these properties. Petitioners are mistaken. The tax declarations are not sufficient proof to overcome the presumption under Article 116 of the Family Code. All property acquired by the spouses during the marriage, regardless in whose name the property is registered, is presumed conjugal unless proved otherwise.[30] The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses only.[31] Article 116 of the Family Code expressly provides that the presumption remains even if the property is “registered in the name of one or both of the spouses.” In some of the documents that petitioners presented, Nicolas misrepresented his civil status by claiming that he was single. Petitioners point to this as proof of Nicolas’ desire to exclude Eusebia from the properties covered by the documents.[32] Petitioners further claim that this supports their stand that the subject properties are not conjugal. This argument is baseless. Whether a property is conjugal or not is determined by law and not by the will of one of the spouses. No unilateral declaration by one spouse can change the character of conjugal property. The clear intent of Nicolas in placing his status as single is to exclude Eusebia from her lawful share in the conjugal property. The law does not allow this. Petitioners point out that Pacita had the means to buy Lot No. 152. Even if Pacita had the financial capacity,

this does not prove that Pacita bought Lot No. 152 with her own money. To rebut the presumption that Lot No. 152 is conjugal, petitioners must prove that Pacita used her own money to pay for Lot No. 152. Petitioners failed to prove this. Petitioners further argue that since Nicolas and Pacita were already cohabiting when Lot No. 152 was acquired, the lot cannot be deemed conjugal property of Nicolas and Eusebia. Petitioners keep belaboring this point in their petition and memorandum. Petitioners’ argument is flawed. The cohabitation of a spouse with another person, even for a long period, does not sever the tie of a subsisting previous marriage.[33] Otherwise, the law would be giving a stamp of approval to an act that is both illegal and immoral. What petitioners fail to grasp is that Nicolas and Pacita’s cohabitation cannot work to the detriment of Eusebia, the legal spouse. The marriage of Nicolas and Eusebia continued to exist regardless of the fact that Nicolas was already living with Pacita. Hence, all property acquired from 7 October 1926, the date of Nicolas and Eusebia’s marriage, until 23 November 1996, the date of Eusebia’s death, are still presumed conjugal. Petitioners have neither claimed nor proved that any of the subject properties was acquired outside or beyond this period. Finally, petitioners’ reliance on Article 148 of the Family Code[34] is misplaced. A reading of Article 148 readily shows that there must be proof of “actual joint contribution” by both the live-in partners before the property becomes co-owned by them in proportion to their contribution. The presumption of equality of contribution arises only in the absence of proof of their proportionate contributions, subject to the condition that actual joint contribution is proven first. Simply put, proof of actual contribution by both parties is required, otherwise there is no co-ownership and no presumption of equal sharing. Petitioners failed to show proof of actual contribution by Pacita in the acquisition of Lot No. 152. In short, petitioners failed to prove that Pacita bought Lot No. 152 with her own money, or that she actually contributed her own money to acquire it. WHEREFORE, we DENY the petition. The Decision of the Court of Appeals dated 31 January 2000 in CA-G.R. CV No. 46716 is AFFIRMED.

SO ORDERED.

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, respondents. DECISION PANGANIBAN, J.: When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretary’s ruling is persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action. This principle is explained in this Decision resolving a petition for review on certiorari of the Decision[1] of the Court of Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecution’s withdrawal of a criminal information against petitioner.

Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint. Finding ‘sufficient legal and factual basis,’ the Quezon City Prosecutor’s Office filed on July 6, 1992 an Information for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104.[3] The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: [4] “That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit: ‘27June 1991 Dr. Esperanza I. Cabral Director Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991. Respondents: Medicine Section

Dr. Juan F. Torres, Jr., Chief, Nuclear

Dr. Orestes P. Monzon, The Antecedent Facts Staff Consultant From the pleadings submitted in this case, the undisputed facts are as follows:

Dear Dr. Cabral,

Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutor’s

This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year

1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively. Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres. In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption. I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis. Let me make clear my intention of pursuing this matter legally should there be no favorable action in my

behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption. Thank you.’ and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice.” A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911. The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further proceedings and to elevate the entire records of the case.[5] Accordingly, a “Motion to Defer Arraignment” dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court granted the motion and deferred petitioner’s arraignment until the final termination of the petition for review.[7] Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.[8] On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioner’s arraignment on January 18, 1993 at two o’clock in the afternoon.[9] In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of Drilon’s ruling read:[10]

“From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that ‘A communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondent’s righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter - that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the communication in question.

The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control and supervision. In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof.’ In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February 17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:[12] ‘The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462.’ Petitioner’s motion for reconsideration[13] was denied by the trial judge in the Order dated March 5, 1993, as follows:[14] “Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied.” Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129.[15]

Respondent Court dismissed the petition “for lack of merit,” holding that it had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint or information has been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound discretion of the trial court.[16] Hence, this recourse to this Court.

The Issues

For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely repeated the alleged errors of the trial court: [17] “I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the ‘Crespo vs. Mogul’ (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because: 1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government; 2. It constitutes or it may lead to misuse or misapplication of ‘judicial power’ as defined in the Constitution; 3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights; 4. It goes against the principle of non-delegation of powers; 5. It sets aside or disregards substantive and procedural rules; 6. It deprives a person of his constitutional right to procedural due process;

7. Its application may constitute or lead to denial of equal protection of laws; 8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official;

In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial court’s denial of the prosecution’s Motion to Withdraw Information?

The Court’s Ruling 9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals; 10. It does not subserve the purposes of a preliminary investigation because (10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no bail for the accused; (10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an unnecessary trial; (10.c) dockets; and

It contributes to the clogging of judicial

11. It has no statutory or procedural basis or precedent. II. On the assumption that ‘Crespo vs. Mogul’ is applicable, it is submitted that 1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and 2. The facts in ‘Crespo vs. Mogul’ are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw Information.”

The petition is impressed with merit. We answer the above question in the affirmative.

Preliminary Matter

Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided: “SEC. 2. Contents of petition.—The petition shall contain a concise statement of x x x the assignment of errors made in the court below x x x.” A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this Court motu proprio, considering that under Section 4 of the same Rule, “review is not a matter of right but of sound discretion.” We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusión perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the dismissal of the petition. We stressed this in Circular No.

2-90, entitled “Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court,” as follows: “4.

Erroneous Appeals. x x x x

e) Duty of counsel.—It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his client’s cause. FOR STRICT COMPLIANCE.” Be that as it may, the Court — noting the importance of the substantial matters raised — decided to overlook petitioner’s lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court.

Determination of Probable Cause Is an Executive Function

The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges.[18]

Such investigation is not a part of the trial. A full and exhaustive presentation of the parties’ evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.[19] By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.

prosecutor in the “established scheme of things,” and that the proceedings therein are “essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime.”[21]

In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise:[20]

“It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case.”

“xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. xxx The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors and embarrassment of trial--is the function of the prosecutor. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutor’s job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge.” Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly pertains to the public

In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor controls and directs the prosecution of criminal offenses thus:

In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail:[23] “x x x x The Courts cannot interfere with the fiscal’s discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal’s discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of

the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscal’s should normally prevail. x x x x.”

Appeal as an Exercise of the Justice Secretary’s Power of Control Over Prosecutors

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: “(1) Supervision and Control.— Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; xxxx.” Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read:

Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service.” xxx

xxx xxx

“Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service.” “Supervision” and “control” of a department head over his subordinates have been defined in administrative law as follows:[24] “In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed.

In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did not foreclose the power or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice. The justice secretary’s power of review may still be availed of despite the filing of an information in court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as amended,[27] specifically in Section 1 (d): “(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may, where he finds that no prima faciecase exists, authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements or evidence submitted without the necessity of conducting another preliminary investigation.” Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been arraigned. In the present case, petitioner’s appeal to the secretary of justice was given due course on August 26, 1992 pursuant to this Circular. On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases remained unchanged:

“Section 3. x x x x The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State

Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo

“SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a

criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not exceed prisión correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these rules. SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.” Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court: “SEC. 4. Duty of investigating fiscal.--x x x x xxx

xxx xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting

another preliminary investigation or to dismiss or move for dismissal of the complaint or information.” This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner.

Appeal Did Not Divest the Trial Court of Jurisdiction

Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case.

Judicial Review of the Resolution of the Secretary of Justice

Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights which are legally demandable and enforceable. Such power includes the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[28] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion.

Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral Commission:[29] “x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in what is termed ‘judicial supremacy’ which properly is the power of the judicial review under the Constitution. x x x.” It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the information upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because granting the motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.

The Marcelo and Martinez Cases Are Consistent

In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal,

whether before or after the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion. In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of justice because such grant was based upon considerations other than the judge’s own assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case. Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecution’s or the secretary’s evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the motion. The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private complainant’s appeal to the secretary of justice. In effect, the secretary’s opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an “erroneous exercise of judicial discretion” as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own independent determination of the merits of the said resolution.

No Grave Abuse of Discretion in theResolution of the Secretary of Justice

In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretary’s resolution has been amply threshed out in petitioner’s letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration – all of which were submitted to the court -- the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial court’s order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretary’s recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretary’s recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel. Under the “established scheme of things” in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecution’s motion for reconsideration of the trial court’s Order of February 22, 1993, and even the private complainant’s opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets.

We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge. In every case for libel, the following requisites must concur: “(a)

it must be defamatory;

(b)

it must be malicious;

(c)

it must be given publicity; and

(d)

the victim must be identifiable.”

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that the accused probably committed it. A cursory reading of the information immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel. Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. [33] In this case however, petitioner’s letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides: “ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and xxx

indication that her purpose was to seek relief from the proper higher authority xxx.

xxx xxx”

The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and actionable. Petitioner’s letter was a private communication made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice. Thus, we agree with the ruling of the secretary of justice:[34] “x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that ‘a communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondent’s righteous disposition of following the rule of law and is a clear

The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants.” In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication within the meaning of the law on defamation.[35] Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.[36] The reason for such rule is that “a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him.”[37] In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no “publicity” and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code. Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioner’s administrative action against him. Ineluctably, Judge Asuncion’s denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such

rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion. WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs. SO ORDERED.

G.R. No. L-19650

September 29, 1966

CALTEX (PHILIPPINES), INC., petitioner-appellee, vs. ENRICO PALOMAR, in his capacity as THE POSTMASTER GENERAL, respondent-appellant. Office of the Solicitor General for respondent and appellant. Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J.: In the year 1960 the Caltex (Philippines) Inc. (hereinafter referred to as Caltex) conceived and laid the groundwork for a promotional scheme calculated to drum up patronage for its oil products. Denominated "Caltex Hooded Pump Contest", it calls for participants therein to estimate the actual number of liters a hooded gas pump at each Caltex station will dispense during a specified period. Employees of the Caltex (Philippines) Inc., its dealers and its advertising agency, and their immediate families excepted, participation is to be open indiscriminately to all "motor vehicle owners and/or licensed drivers". For the privilege to participate, no fee or consideration is required to be paid, no purchase of Caltex products required to be made. Entry forms are to be made available upon request at each Caltex station where a sealed can will be provided for the deposit of accomplished entry stubs.

A three-staged winner selection system is envisioned. At the station level, called "Dealer Contest", the contestant whose estimate is closest to the actual number of liters dispensed by the hooded pump thereat is to be awarded the first prize; the next closest, the second; and the next, the third. Prizes at this level consist of a 3-burner kerosene stove for first; a thermos bottle and a Ray-O-Vac hunter lantern for second; and an Everready Magnet-lite flashlight with batteries and a screwdriver set for third. The first-prize winner in each station will then be qualified to join in the "Regional Contest" in seven different regions. The winning stubs of the qualified contestants in each region will be deposited in a sealed can from which the first-prize, second-prize and third-prize winners of that region will be drawn. The regional first-prize winners will be entitled to make a three-day all-expenses-paid round trip to Manila, accompanied by their respective Caltex dealers, in order to take part in the "National Contest". The regional secondprize and third-prize winners will receive cash prizes of P500 and P300, respectively. At the national level, the stubs of the seven regional first-prize winners will be placed inside a sealed can from which the drawing for the final first-prize, second-prize and third-prize winners will be made. Cash prizes in store for winners at this final stage are: P3,000 for first; P2,000 for second; Pl,500 for third; and P650 as consolation prize for each of the remaining four participants. Foreseeing the extensive use of the mails not only as amongst the media for publicizing the contest but also for the transmission of communications relative thereto, representations were made by Caltex with the postal authorities for the contest to be cleared in advance for mailing, having in view sections 1954(a), 1982 and 1983 of the Revised Administrative Code, the pertinent provisions of which read as follows: SECTION 1954. Absolutely non-mailable matter. — No matter belonging to any of the following classes, whether sealed as first-class matter or not, shall be imported into the Philippines through the mails, or to be deposited in or carried by the mails of the Philippines, or be delivered to its addressee by any officer or employee of the Bureau of Posts:

Written or printed matter in any form advertising, describing, or in any manner pertaining to, or conveying or purporting to convey any information concerning any lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance, or any scheme, device, or enterprise for obtaining any money or property of any kind by means of false or fraudulent pretenses, representations, or promises. "SECTION 1982. Fraud orders.—Upon satisfactory evidence that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, the Director of Posts may instruct any postmaster or other officer or employee of the Bureau to return to the person, depositing the same in the mails, with the word "fraudulent" plainly written or stamped upon the outside cover thereof, any mail matter of whatever class mailed by or addressed to such person or company or the representative or agent of such person or company. SECTION 1983. Deprivation of use of money order system and telegraphic transfer service.— The Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promise, forbid the issue or payment by any postmaster of any postal money order or telegraphic transfer to said person or company or to the agent of any such person or company, whether such agent is acting as an individual or

as a firm, bank, corporation, or association of any kind, and may provide by regulation for the return to the remitters of the sums named in money orders or telegraphic transfers drawn in favor of such person or company or its agent. The overtures were later formalized in a letter to the Postmaster General, dated October 31, 1960, in which the Caltex, thru counsel, enclosed a copy of the contest rules and endeavored to justify its position that the contest does not violate the anti-lottery provisions of the Postal Law. Unimpressed, the then Acting Postmaster General opined that the scheme falls within the purview of the provisions aforesaid and declined to grant the requested clearance. In its counsel's letter of December 7, 1960, Caltex sought a reconsideration of the foregoing stand, stressing that there being involved no consideration in the part of any contestant, the contest was not, under controlling authorities, condemnable as a lottery. Relying, however, on an opinion rendered by the Secretary of Justice on an unrelated case seven years before (Opinion 217, Series of 1953), the Postmaster General maintained his view that the contest involves consideration, or that, if it does not, it is nevertheless a "gift enterprise" which is equally banned by the Postal Law, and in his letter of December 10, 1960 not only denied the use of the mails for purposes of the proposed contest but as well threatened that if the contest was conducted, "a fraud order will have to be issued against it (Caltex) and all its representatives". Caltex thereupon invoked judicial intervention by filing the present petition for declaratory relief against Postmaster General Enrico Palomar, praying "that judgment be rendered declaring its 'Caltex Hooded Pump Contest' not to be violative of the Postal Law, and ordering respondent to allow petitioner the use of the mails to bring the contest to the attention of the public". After issues were joined and upon the respective memoranda of the parties, the trial court rendered judgment as follows: In view of the foregoing considerations, the Court holds that the proposed 'Caltex Hooded Pump Contest' announced to be conducted by the petitioner under the rules marked as Annex B of the petitioner does not violate the Postal Law and the respondent has no right to bar the public distribution of said rules by the mails.

The respondent appealed. The parties are now before us, arrayed against each other upon two basic issues: first, whether the petition states a sufficient cause of action for declaratory relief; and second, whether the proposed "Caltex Hooded Pump Contest" violates the Postal Law. We shall take these up in seriatim. 1. By express mandate of section 1 of Rule 66 of the old Rules of Court, which was the applicable legal basis for the remedy at the time it was invoked, declaratory relief is available to any person "whose rights are affected by a statute . . . to determine any question of construction or validity arising under the . . . statute and for a declaration of his rights thereunder" (now section 1, Rule 64, Revised Rules of Court). In amplification, this Court, conformably to established jurisprudence on the matter, laid down certain conditions sine qua non therefor, to wit: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination (Tolentino vs. The Board of Accountancy, et al., G.R. No. L-3062, September 28, 1951; Delumen, et al. vs. Republic of the Philippines, 50 O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-8964, July 31, 1956). The gravamen of the appellant's stand being that the petition herein states no sufficient cause of action for declaratory relief, our duty is to assay the factual bases thereof upon the foregoing crucible. As we look in retrospect at the incidents that generated the present controversy, a number of significant points stand out in bold relief. The appellee (Caltex), as a business enterprise of some consequence, concededly has the unquestioned right to exploit every legitimate means, and to avail of all appropriate media to advertise and stimulate increased patronage for its products. In contrast, the appellant, as the authority charged with the enforcement of the Postal Law, admittedly has the power and the duty to suppress transgressions thereof — particularly thru the issuance of fraud orders, under Sections 1982 and 1983 of the Revised Administrative Code, against legally nonmailable schemes. Obviously pursuing its right aforesaid, the appellee laid out plans for the sales promotion scheme hereinbefore detailed. To forestall possible difficulties in

the dissemination of information thereon thru the mails, amongst other media, it was found expedient to request the appellant for an advance clearance therefor. However, likewise by virtue of his jurisdiction in the premises and construing the pertinent provisions of the Postal Law, the appellant saw a violation thereof in the proposed scheme and accordingly declined the request. A point of difference as to the correct construction to be given to the applicable statute was thus reached. Communications in which the parties expounded on their respective theories were exchanged. The confidence with which the appellee insisted upon its position was matched only by the obstinacy with which the appellant stood his ground. And this impasse was climaxed by the appellant's open warning to the appellee that if the proposed contest was "conducted, a fraud order will have to be issued against it and all its representatives." Against this backdrop, the stage was indeed set for the remedy prayed for. The appellee's insistent assertion of its claim to the use of the mails for its proposed contest, and the challenge thereto and consequent denial by the appellant of the privilege demanded, undoubtedly spawned a live controversy. The justiciability of the dispute cannot be gainsaid. There is an active antagonistic assertion of a legal right on one side and a denial thereof on the other, concerning a real — not a mere theoretical — question or issue. The contenders are as real as their interests are substantial. To the appellee, the uncertainty occasioned by the divergence of views on the issue of construction hampers or disturbs its freedom to enhance its business. To the appellant, the suppression of the appellee's proposed contest believed to transgress a law he has sworn to uphold and enforce is an unavoidable duty. With the appellee's bent to hold the contest and the appellant's threat to issue a fraud order therefor if carried out, the contenders are confronted by the ominous shadow of an imminent and inevitable litigation unless their differences are settled and stabilized by a tranquilizing declaration (Pablo y Sen, et al. vs. Republic of the Philippines, G.R. No. L-6868, April 30, 1955). And, contrary to the insinuation of the appellant, the time is long past when it can rightly be said that merely the appellee's "desires are thwarted by its own doubts, or by the fears of others" — which admittedly does not confer a cause of action. Doubt, if any there was, has ripened into a justiciable controversy when, as in the case at bar, it was translated into a positive claim of right which is actually

contested (III Moran, Comments on the Rules of Court, 1963 ed., pp. 132-133, citing: Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, 284 Pac. 350). We cannot hospitably entertain the appellant's pretense that there is here no question of construction because the said appellant "simply applied the clear provisions of the law to a given set of facts as embodied in the rules of the contest", hence, there is no room for declaratory relief. The infirmity of this pose lies in the fact that it proceeds from the assumption that, if the circumstances here presented, the construction of the legal provisions can be divorced from the matter of their application to the appellee's contest. This is not feasible. Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, amongst others, by reason of the fact that the given case is not explicitly provided for in the law (Black, Interpretation of Laws, p. 1). This is precisely the case here. Whether or not the scheme proposed by the appellee is within the coverage of the prohibitive provisions of the Postal Law inescapably requires an inquiry into the intended meaning of the words used therein. To our mind, this is as much a question of construction or interpretation as any other. Nor is it accurate to say, as the appellant intimates, that a pronouncement on the matter at hand can amount to nothing more than an advisory opinion the handing down of which is anathema to a declaratory relief action. Of course, no breach of the Postal Law has as yet been committed. Yet, the disagreement over the construction thereof is no longer nebulous or contingent. It has taken a fixed and final shape, presenting clearly defined legal issues susceptible of immediate resolution. With the battle lines drawn, in a manner of speaking, the propriety — nay, the necessity — of setting the dispute at rest before it accumulates the asperity distemper, animosity, passion and violence of a full-blown battle which looms ahead (III Moran, Comments on the Rules of Court, 1963 ed., p. 132 and cases cited), cannot but be conceded. Paraphrasing the language in Zeitlin vs. Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d., p. 869, to deny declaratory relief to the appellee in the situation into which it has been cast, would be to force it to choose between undesirable alternatives. If it cannot obtain a final and definitive pronouncement as to whether

the anti-lottery provisions of the Postal Law apply to its proposed contest, it would be faced with these choices: If it launches the contest and uses the mails for purposes thereof, it not only incurs the risk, but is also actually threatened with the certain imposition, of a fraud order with its concomitant stigma which may attach even if the appellee will eventually be vindicated; if it abandons the contest, it becomes a self-appointed censor, or permits the appellant to put into effect a virtual fiat of previous censorship which is constitutionally unwarranted. As we weigh these considerations in one equation and in the spirit of liberality with which the Rules of Court are to be interpreted in order to promote their object (section 1, Rule 1, Revised Rules of Court) — which, in the instant case, is to settle, and afford relief from uncertainty and insecurity with respect to, rights and duties under a law — we can see in the present case any imposition upon our jurisdiction or any futility or prematurity in our intervention. The appellant, we apprehend, underrates the force and binding effect of the ruling we hand down in this case if he believes that it will not have the final and pacifying function that a declaratory judgment is calculated to subserve. At the very least, the appellant will be bound. But more than this, he obviously overlooks that in this jurisdiction, "Judicial decisions applying or interpreting the law shall form a part of the legal system" (Article 8, Civil Code of the Philippines). In effect, judicial decisions assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those in duty bound to enforce obedience thereto. Accordingly, we entertain no misgivings that our resolution of this case will terminate the controversy at hand. It is not amiss to point out at this juncture that the conclusion we have herein just reached is not without precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A. 2d., 487, where a corporation engaged in promotional advertising was advised by the county prosecutor that its proposed sales promotion plan had the characteristics of a lottery, and that if such sales promotion were conducted, the corporation would be subject to criminal prosecution, it was held that the corporation was entitled to maintain a declaratory relief action against the county prosecutor to determine the legality of its sales

promotion plan. In pari materia, see also: Bunis vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. 2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. Scott, 15 N.J. Super. 124, 82 A. 2d., 903. In fine, we hold that the appellee has made out a case for declaratory relief. 2. The Postal Law, chapter 52 of the Revised Administrative Code, using almost identical terminology in sections 1954(a), 1982 and 1983 thereof, supra, condemns as absolutely non-mailable, and empowers the Postmaster General to issue fraud orders against, or otherwise deny the use of the facilities of the postal service to, any information concerning "any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind". Upon these words hinges the resolution of the second issue posed in this appeal. Happily, this is not an altogether untrodden judicial path. As early as in 1922, in "El Debate", Inc. vs. Topacio, 44 Phil., 278, 283-284, which significantly dwelt on the power of the postal authorities under the abovementioned provisions of the Postal Law, this Court declared that — While countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of a lottery are: First, consideration; second, prize; and third, chance. (Horner vs. States [1892], 147 U.S. 449; Public Clearing House vs. Coyne [1903], 194 U.S., 497; U.S. vs. Filart and Singson [1915], 30 Phil., 80; U.S. vs. Olsen and Marker [1917], 36 Phil., 395; U.S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.)

Unanimity there is in all quarters, and we agree, that the elements of prize and chance are too obvious in the disputed scheme to be the subject of contention. Consequently as the appellant himself concedes, the field of inquiry is narrowed down to the existence of the element of consideration therein. Respecting this matter, our task is considerably lightened inasmuch as in the same case just cited, this Court has laid down a definitive yard-stick in the following terms — In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is derived directly or indirectly from the party receiving the chance, but does condemn as criminal schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize. Reverting to the rules of the proposed contest, we are struck by the clarity of the language in which the invitation to participate therein is couched. Thus — No puzzles, no rhymes? You don't need wrappers, labels or boxtops? You don't have to buy anything? Simply estimate the actual number of liter the Caltex gas pump with the hood at your favorite Caltex dealer will dispense from — to —, and win valuable prizes . . . ." . Nowhere in the said rules is any requirement that any fee be paid, any merchandise be bought, any service be rendered, or any value whatsoever be given for the privilege to participate. A prospective contestant has but to go to a Caltex station, request for the entry form which is available on demand, and accomplish and submit the same for the drawing of the winner. Viewed from all angles or turned inside out, the contest fails to exhibit any discernible consideration which would brand it as a lottery. Indeed, even as we head the stern injunction, "look beyond the fair exterior, to the substance, in order to unmask the real element and pernicious tendencies which the law is seeking to prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291), we find none. In our appraisal, the

scheme does not only appear to be, but actually is, a gratuitous distribution of property by chance. There is no point to the appellant's insistence that nonCaltex customers who may buy Caltex products simply to win a prize would actually be indirectly paying a consideration for the privilege to join the contest. Perhaps this would be tenable if the purchase of any Caltex product or the use of any Caltex service were a pre-requisite to participation. But it is not. A contestant, it hardly needs reiterating, does not have to buy anything or to give anything of value.1awphîl.nèt Off-tangent, too, is the suggestion that the scheme, being admittedly for sales promotion, would naturally benefit the sponsor in the way of increased patronage by those who will be encouraged to prefer Caltex products "if only to get the chance to draw a prize by securing entry blanks". The required element of consideration does not consist of the benefit derived by the proponent of the contest. The true test, as laid down in People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. (Supp.) 788, is whether the participant pays a valuable consideration for the chance, and not whether those conducting the enterprise receive something of value in return for the distribution of the prize. Perspective properly oriented, the standpoint of the contestant is all that matters, not that of the sponsor. The following, culled from Corpus Juris Secundum, should set the matter at rest: The fact that the holder of the drawing expects thereby to receive, or in fact does receive, some benefit in the way of patronage or otherwise, as a result of the drawing; does not supply the element of consideration.Griffith Amusement Co. vs. Morgan, Tex. Civ. App., 98 S.W., 2d., 844" (54 C.J.S., p. 849). Thus enlightened, we join the trial court in declaring that the "Caltex Hooded Pump Contest" proposed by the appellee is not a lottery that may be administratively and adversely dealt with under the Postal Law. But it may be asked: Is it not at least a "gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind",

which is equally prescribed? Incidentally, while the appellant's brief appears to have concentrated on the issue of consideration, this aspect of the case cannot be avoided if the remedy here invoked is to achieve its tranquilizing effect as an instrument of both curative and preventive justice. Recalling that the appellant's action was predicated, amongst other bases, upon Opinion 217, Series 1953, of the Secretary of Justice, which opined in effect that a scheme, though not a lottery for want of consideration, may nevertheless be a gift enterprise in which that element is not essential, the determination of whether or not the proposed contest — wanting in consideration as we have found it to be — is a prohibited gift enterprise, cannot be passed over sub silencio. While an all-embracing concept of the term "gift enterprise" is yet to be spelled out in explicit words, there appears to be a consensus among lexicographers and standard authorities that the term is commonly applied to a sporting artifice of under which goods are sold for their market value but by way of inducement each purchaser is given a chance to win a prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th ed., p. 817; Ballantine, Law Dictionary with Pronunciations, 2nd ed., p. 55; Retail Section of Chamber of Commerce of Plattsmouth vs. Kieck, 257 N.W., 493, 128 Neb. 13; Barker vs. State, 193 S.E., 605, 56 Ga. App., 705; Bell vs. State, 37 Tenn. 507, 509, 5 Sneed, 507, 509). As thus conceived, the term clearly cannot embrace the scheme at bar. As already noted, there is no sale of anything to which the chance offered is attached as an inducement to the purchaser. The contest is open to all qualified contestants irrespective of whether or not they buy the appellee's products. Going a step farther, however, and assuming that the appellee's contest can be encompassed within the broadest sweep that the term "gift enterprise" is capable of being extended, we think that the appellant's pose will gain no added comfort. As stated in the opinion relied upon, rulings there are indeed holding that a gift enterprise involving an award by chance, even in default of the element of consideration necessary to constitute a lottery, is prohibited (E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73; Russell vs. Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52). But this is only one side of the coin. Equally impressive authorities declare that, like a lottery, a gift

enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements of prize, chance and consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142, 113 Colo., 326; D'Orio vs. Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis, 12 N.Y.S., 2d., 796; City and County of Denver vs. Frueauff, 88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann. Cas., 521; 54 C.J.S., 851, citing: Barker vs. State, 193 S.E., 605, 607, 56 Ga. App., 705; 18 Words and Phrases, perm. ed., pp. 590594). The apparent conflict of opinions is explained by the fact that the specific statutory provisions relied upon are not identical. In some cases, as pointed out in 54 C.J.S., 851, the terms "lottery" and "gift enterprise" are used interchangeably (Bills vs. People, supra); in others, the necessity for the element of consideration or chance has been specifically eliminated by statute. (54 C.J.S., 351352, citing Barker vs. State, supra; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, supra). The lesson that we derive from this state of the pertinent jurisprudence is, therefore, that every case must be resolved upon the particular phraseology of the applicable statutory provision. Taking this cue, we note that in the Postal Law, the term in question is used in association with the word "lottery". With the meaning of lottery settled, and consonant to the wellknown principle of legal hermeneutics noscitur a sociis — which Opinion 217 aforesaid also relied upon although only insofar as the element of chance is concerned — it is only logical that the term under a construction should be accorded no other meaning than that which is consistent with the nature of the word associated therewith. Hence, if lottery is prohibited only if it involves a consideration, so also must the term "gift enterprise" be so construed. Significantly, there is not in the law the slightest indicium of any intent to eliminate that element of consideration from the "gift enterprise" therein included. This conclusion firms up in the light of the mischief sought to be remedied by the law, resort to the determination thereof being an accepted extrinsic aid in statutory construction. Mail fraud orders, it is axiomatic, are designed to prevent the use of the mails as a medium for disseminating printed matters which on grounds of public policy are declared non-mailable. As applied to lotteries, gift enterprises and similar schemes, justification lies in the recognized necessity to suppress their tendency to inflame the gambling spirit and to corrupt public morals (Com. vs.

Lund, 15 A. 2d., 839, 143 Pa. Super. 208). Since in gambling it is inherent that something of value be hazarded for a chance to gain a larger amount, it follows ineluctably that where no consideration is paid by the contestant to participate, the reason behind the law can hardly be said to obtain. If, as it has been held — Gratuitous distribution of property by lot or chance does not constitute "lottery", if it is not resorted to as a device to evade the law and no consideration is derived, directly or indirectly, from the party receiving the chance, gambling spirit not being cultivated or stimulated thereby. City of Roswell vs. Jones, 67 P. 2d., 286, 41 N.M., 258." (25 Words and Phrases, perm. ed., p. 695, emphasis supplied). we find no obstacle in saying the same respecting a gift enterprise. In the end, we are persuaded to hold that, under the prohibitive provisions of the Postal Law which we have heretofore examined, gift enterprises and similar schemes therein contemplated are condemnable only if, like lotteries, they involve the element of consideration. Finding none in the contest here in question, we rule that the appellee may not be denied the use of the mails for purposes thereof. Recapitulating, we hold that the petition herein states a sufficient cause of action for declaratory relief, and that the "Caltex Hooded Pump Contest" as described in the rules submitted by the appellee does not transgress the provisions of the Postal Law. ACCORDINGLY, the judgment appealed from is affirmed. No costs. G.R. No. L-29906 January 30, 1976 RODOLFO GENERAL and CARMEN GONTANG, petitioners, vs. LEONCIO BARRAMEDA, respondent. Augusto A. Pardalis for petitioners.

E.V. Guevarra for respondent.

ESGUERRA, J.: Petition for certiorari to review the decision of the Court of Appeals (Second Division) in CA-G.R. No. 38363-R, entitled "Leoncio Barrameda, plaintiff-appellant, vs. Development Bank of the Philippines (Naga Branch, Naga City), Rodolfo General and Carmen Gontang, defendantsappellees," which reversed the decision of the Court of First Instance of Camarines Sur in its Civil Case No. 5697, "dismissing the complaint with costs against plaintiff". Appellate Court's decision has the following dispositive portion: We therefore find that the appealed judgment should be reversed and set aside and another one entered declaring (1) null and void the sale executed on September 3, 1963, by defendant Development Bank of the Philippines in favor of its defendants Rodolfo General and Carmen Gontang, (2) T.C.T. No. 5003 cancelled and (3) the mortgaged property redeemed; and ordering the Clerk of the lower court to deliver the amount of P7,271.22 deposited to defendants Rodolfo General and Carmen Gontang and the Register of Deeds to issue a new Transfer Certificate of Title in the name of plaintiff in lieu of T.C.T. No. 5003 upon payment by him of corresponding fees; with costs against the defendants in both instances. Undisputed facts are: Plaintiff seeks to redeem the land formerly embraced in Transfer Certificate of Title No. 1418,

containing an area of 59.4687 hectares, situated in barrio Taban, Minalabac Camarines Sur; to annul any and all contracts affecting said property between the Development Bank of the Philippines (DBP) and Rodolfo General and Carmen Gontang and to recover damages, attorney's fees and costs. The land in dispute was mortgaged by plaintiff to the DBP to secure a loan of P22,000.00. For failure of the mortgagor to pay in full the installments as they fall due, the mortgagee foreclosed extrajudicially pursuant to the provisions of Act 3135. On April 23, 1962, the provincial sheriff conducted an auction sale in which the mortgagee, as the highest bidder, bought the mortgaged property for P7,271.22. On May 13, 1963, the sheriff executed a final deed of sale in favor of the DBP (Exhibit 2) and the DBP executed an affidavit of consolidation of ownership (Exhibit 3). Upon registration of the sale and affidavit on September 2, 1963 (Exhibit 1), TCT No. 1418 in the name of plaintiff was cancelled and TCT No. 5003 issued to the DBP (Exhibit-5) in its stead. On September 3, 1963, defendants Rodolfo General and Carmen Gontang purchased the land from their codefendant. The sale in their favor was annotated on TCT No. 5003 on November 26, 1963 only. Prior to the date last mentioned, or on November 20, 1963, plaintiff offered to redeem the land. In view of the refusal of the DBP to allow the redemption, plaintiff commenced this suit. The original complaint was filed in court on November 23, 1963. On August 12, 1964, plaintiff deposited with the clerk of court the sum of P7,271.22,

representing the repurchase price of the land. The trial court held that the one-year period of redemption began to run on April 23, 1962, when the sale at public auction was held, and ended on April 24, 1963; that the plaintiff's offer to redeem on November 20, 1963 and the deposit of the redemption price on August 12, 1964 were made beyond the redemption period; and that defendants Rodolfo General and Carmen Gontang 'are legitimate purchasers for value. Two principal issues raised are: (1) In the interpretation and application of Section 31, Commonwealth Act 459 (Law that created the Agricultural and Industrial Bank, now Development Bank of the Philippines) which provides: The Mortgagor or debtor to the Agricultural and Industrial Bank whose real property was sold at public auction, judicially or extrajudicially, for the full or partial payment of an obligation to said bank shall, within one year from the date of' the auction sale, have the right to redeem the real property ... (Emphasis supplied),

shall the period of redemption start from the date of auction sale or the date of the registration of the sale in the register of deeds as the respondent Appellate Court held? (2) Were petitioners under obligation to look beyond what appeared in the certificate of title of their vendor the Development Bank of the Philippines and investigate the validity of its title before they could be classified as purchasers in good faith? Petitioners' principal contentions are: that Section 31 of Commonwealth Act No. 459 which created the Agricultural and Industrial Bank, predecessor of the Rehabilitation Finance Corporation and the Development Bank of the Philippines, clearly provides that the right to redeem the real property sold at public auction judicially or extrajudicially may only be exercised "within one year from the date of the auction sale"; that there is no provision in Commonwealth Act No. 459 expressly stating that the redemption period of one year shall start from the registration of the certificate of sale in the register of deeds; that Sec. 31 of C. A. 459 is a specific provision of law which governs redemption of real property foreclosed by the Agricultural and Industrial Bank (now the Development Bank of the Philippines), and prescribes the redemption period for both judicial and extra-judicial foreclosures of mortgage; that insofar as foreclosures of mortgage by banking and financial institutions are concerned, the period of redemption applicable must be the one prescribed in their respective charters as, in the case at bar, Section 31, C.A. No. 459; that the ruling in the case of Agbulos vs. Alberto, G.R. No. L-17483, July 31, 1962, cited by respondent Appellate Court as a basis for its decision, is not applicable to the case at bar because this Court based its Agbulos ruling on Section 26 (now Sec. 90) of Rule 39 of the Rules of Court, wherein it is not clear when the period of redemption should start (date when execution sale was conducted, or when the certificate of sale was executed by sheriff, or when the certificate of sale was registered in the registry of deeds), and this Court ruled that as the land involved in that case is registered under the Torrens system, the date of redemption should begin to run from the date of registration, unlike in the case at bar where Section 31 of

Commonwealth Act 459 specifically and clearly provides that the running of the redemption period shall start from the date of the auction sale; and that the ruling of this Court in Gonzales vs. P.N.B., 48 Phil. 824, also invoked by respondent Appellate Court as a basis for its decision, is likewise not applicable to the case at bar because the provisions on the matter of the P.N.B. Charter, Act No. 2938, are different from that of Commonwealth Act 459. Section 32 of Act 2938, which is now Section 20 of R.A. No. 1300 (PNB Charter) provides that the mortgagor shall have the right to redeem within one year the sale of the real estate. This is Identical to the provision appearing in Sec. 26, now Sec. 30, Rule 39, Rules of Court, while under Sec. 31 of Commonwealth Act 459, the period of redemption should star, on the date of the auction sale, and the latter provision is applicable specifically and expressly to the case at bar. It is also petitioners' principal argument that the ruling in Metropolitan Insurance Company, substituted by spousesLoreto Z. Marcaida and Miguel de Marcaida vs. Pigtain 101 Phil. 1111, 1115-1116, wherein this Court, in construing Sec. 6 of Act No. 3135, categorically stated that the one year redemption period shall start from the date of sale and not from the report of the sale or the registration of the sale certificate in the office of the Register of Deeds, is more applicable to the present case. The pertinent portion of the decision in the Marcaida case follows: But again the appellants claim that in this particular case, the statutory redemption period of one year should begin from December 17, 1954, when the auction sale was actually recorded in the office of the Register of Deeds of Manila and not from December 15, 1953, when the sale at public auction of the properties in question took place. We find its contention to be also untenable in view of the clear provision of the aforesaid Section 6 of Act No. 3135 to the effect that the right of redemption should be exercised within one year from the date of the sale. It should not be overlooked that the extrajudicial sale in question was for foreclosure of a mortgage and was

not by virtue of an ordinary writ of execution in a civil case. ... And since the appeallants had failed to redeem the land in question within the time allowed by Section 6 of Act 3135, the appellee has perfect right to require the cancellation of the attachment lien in question. (Emphasis supplied) Notwithstanding the impressive arguments presented by petitioners, the crucial issue to determine is the choice of what rule to apply in determining the start of the one year redemption period, whether from the date of the auction sale or from that of the registration of the sale with the registry of deeds. In other words it is whether a literal interpretation of the provision of Section 31 of Commonwealth Act 459 — that the period of redemption shall start from the date of the auction sale — shall govern, or whether the words, "auction sale" shall be considered in their ordinary meaning or in the same sense that site is used in the texts of Section 26, now 30, of Rule 39 of the Rules of Court, and Section 26 of Act 2938, now Section 20, R.A. 1300 (Charter of PNB). Stated differently, should the word "sale" used in the above indicated provisions of the Rules of Court and the PNB Charter, under whichWe ruled that the redemption period shall start from the registration of the sale in the registry of deeds be applied to foreclosure sales for the DBP and give to the words auction sale" in its charter the same meaning of "sale" as used in connection with registered land? We are of the view that a correct solution to the foregoing issue must entail not merely trying to determine the meaning of the words auction sale" and "sale" in different legislative enactments, but, more importantly, a determination of the legislative intent which is quite a task to achieve as it depends more on a determination of the purpose and objective of the law in giving mortgagors a period of redemptiom of their foreclosed properties. Mortgagors whose properties are foreclosed and are purchased by the mortgagee as highest bidder at the auction sale are decidedly at a great disadvatage because almost invariably mortgagors forfeit their properties at a great loss as they are purchased at nominal costs by the mortgagee himself who ordinarily bids in no more than his credit or the balance threof at the auction sale. That is the reason why the law gives them a chance to redeem their properties within a fixed period. It cannot be denied that in

all foreclosures of mortgages and sale of property pursuan to execution, whether judicial or extrajudicial in nature, under different legislative enactments, a public auction sale is a indispensable pre-requisite to the valid disposal of properties used as collateral for the obligation. So that whether the legislators in different laws used as collateral for the obligation. So that whether the legislators in different laws used the term "sale" or "auction sale" is of no moment, since the presumption is that when they used those words "sale" and "auction sale" interchangeable in different laws they really referred to only one act — the sale at public auction indispensably necessary in the disposition of mortgaged properties and those levied upon to pay civil obligations of their owners. In the case of Ernesto Salazar, et al. vs. Flor De Lis Meneses, et al.,G.R. No. L-15378, promulgated July 31, 1963, this Court stated: The issue decisive of this appeal is the one raised by appellants in their third assignment of error, which is to this effect: that the lower court erred in not holding that the period of redemption in this case, as far as appellants are concerned, started only on May 26, 1956, registered. Should We rule to this effect, it is clear that hen appellants attempted to exercise their right to redeem, as judgment creditors of the deceased mortgagor by judgment subsequent to the extrajudicial foreclosure sale, and when they initiated the present action on October 1, 1956, the period of redemption had not yer expired. We find appellants' contention to be meritorious. In the case of Agbulos vs. Alberto, G.R. No. L-17483, promulgated on July 31, 1962, We held: The property involved in the present case is

registered land. It is the law in this jurisdiction that when property brought under the operation of the Land Registration Act sold, the operativ e act is the registration of the deed of conveyance. The deed of sale does not take effect this a conveyance or bind the land it is registered. (Sectio n 50, Act 496; Tuason vs. Raymundo, 28 Phil. 635; Sikatuna vs. Guevara, 43 Phil. 371; Worcester vs. Ocampo, 34 Phil. 646) (Emphasis supplied) We find no compelling reason to deviate from the aforequoted ruling and not apply the same to the present case. To Us petitioners' main contention that there is a great deal of difference in legislative intent in the use of the words 94 auction sale" in Sec. 31 of Commonwealth Act 459 and the word "sale" in See. 32 of Act 2938, and See. 30 of Rule 39 of the Rules of Court, pales into insignificance in the light of Our stand that those words used interchangeably refer to one thing, and that is the public auction sale required by law in the disposition of properties foreclosed or levied upon. Our stand in the Salazar case and in those mentioned therein (Garcia vs. Ocampo, G.R. No. L-13029, June 30, 1959; Gonzales et al. vs. Philippine National Bank et al. 48 Phil. 824) is firmly planted on the premise that registration of the deed of conveyance for properties brought under the Torrens System is the operative act to transfer title to the property

and registration is also the notice to the whole world that a transaction involving the same had taken place. To affirm the previous stand this Court has taken on the question of when the one year period of redemption should start (from the time of registration of the sale) would better serve the ends of justice and equity especially in this case, since to rule otherwise would result in preventing the respondent-mortgagor from redeeming his 59.4687 hectares of land which was acquired by the Development Bank of the Philippines as the highest bidder at the auction sale for the low price of only P7,271.22 which was simply the unpaid balance of the mortgage debt of P22,000.00 after the respondent-mortgagor had paid the sum of P14,728.78. As it is, affirmance of the Appellate Court's decision would not result in any loss to petitioners since the amount of P7,271.22 they paid to the Bank will be returned to 'them. What further strengthen's Our stand is the fact found by the respondent Appellate Court that respondent Barrameda has always been in possession of the disputed land. IN THE LIGHT OF THE FOREGOING, We find it no longer necessary to determine whether the petitioners are purchasers in good faith of the land involved, since the respondent Barrameda redeemed the mortgaged property within the legal period of redemption and, consequently the sale of the property executed on September 3, 1963, by the Development Bank of the Philippine in favor of the petitioners is null and void. WHEREFORE, the decision of the respondent Appellate Court is affirmed, with costs against petitioners.

G.R. No. L-11988 April 4, 1918 JACINTO MOLINA, Plaintiff-Appellee, vs. JAMES J. RAFFERTY, Collector of Internal Revenue, DefendantAppellant. Acting Attorney-General Paredes for appellant. Araneta & Zaragoza for appellee.

FISHER, J.: After the publication of the decision announced under the date of February 1st., 1918, 1counsel for appellee presented a petition for a rehearing. This petition was granted and oral argument of the motion was permitted. Two of the members of the court, as constituted at the time of the argument on the motion for a rehearing, were not present when the case was first submitted and did not participate in the original decision.chanroblesvirtualawlibrary chanrobles virtual law library Upon the facts, as correctly stated in the original majority decision, a majority of the members of the court as now constituted is in favor of setting aside the original decision and affirming the judgment of the trial court.chanroblesvirtualawlibrary chanrobles virtual law library Plaintiff contends that the fish produced by him are to be regarded as an "agricultural product" within the meaning of that term as used in paragraph ( c) of section 41 of Act No. 2339 (now section 1460 of the Administrative Code of 1917), in forced when the disputed tax was levied, and that he is therefore exempt from the percentage tax on merchants' sales established by section 40 of Act No. 2339, as amended.chanroblesvirtualawlibrary chanrobles virtual law library The provision upon which the plaintiff relies reads as follows: In computing the tax above imposed transactions in the following commodities shall be excluded: . . . ( c) Agricultural products when sold by the producer or owner of the land where grown, whether in their original state or not. (Act No. 2339, sec. 41.) The same exemption, with a slight change in wording, is now embodied in section 1460 of the Administrative Code, of 1917.chanroblesvirtualawlibrary chanrobles virtual law library

The question of law presented by this appeal, as we view, is not whether fish in general constitute an agricultural products, but whether fish produced as were those upon which the tax in question was levied are an agricultural product.chanroblesvirtualawlibrary chanrobles virtual law library As stated by judged Cooley in his great work on taxation: The underlying principle of all construction is that the intent of the legislature should be sought in the words employed to express it, and that when found it should be made to govern, . . . . If the words of the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in order to ascertain what was in the legislative mind at the time the law was enacted; what the circumstances were, under which the action was taken; what evil, if any, was meant to be redressed; . . . . And where the law has contemporaneously been put into operation, and in doing so a construction has necessarily been put upon it, this construction, especially if followed for some considerable period, is entitled to great respect, as being very probably a true expression of the legislative purpose, and is not lightly to be overruled, although it is not conclusive. (Cooley on Taxation [Vol. 1] 3d. Ed., p. 450.) The first inquiry, therefore, must relate to the purpose of the Legislative had in mind in establishing the exemption contained in the clause now under consideration. It seems reasonable to assume that it was due to the belief on the part of the law making body that by exempting agricultural products from this tax the farming industry would be favored and the development of the resources of the country encouraged. It is a fact, of which we take judicial cognizance, that there are immense tracts of public land in this country, at present wholly unproductive, which might be made fruitful by cultivation, and that large sums of money go abroad every year for the purchase of food substances which might be grown here. Every dollar's worth of food which the farmer produces and sells in these Islands adds directly to the wealth of the country. On the other hand, in the process of distribution of commodities to the ultimate consumer, no direct increase in value results solely from their transfer from one person to another in the course of commercial transactions. It is fairly to be inferred from the statute that the object and purpose of the

Legislature was, in general terms, to levy the tax in question, significantly termed the "merchant's tax," upon all persons engaged in making a profit upon goods produced by others, but to exempt from the tax all persons directly producing goods from the land. In order to accomplish this purpose the Legislature, instead of attempting an enumeration of exempted products, has grouped them all under the general designation of "agricultural products."chanrobles virtual law library It seems to require no argument to demonstrate that it is just as much to the public interest to encourage the artificial propagation and growth of fish as of corn, pork, milk or any other food substance. If the artificial production of fish is held not to be included within the exemption of the statute this conclusion must be based upon the inadequacy of the language used by the Legislature to express its purpose, rather than the assumption that it was actually intended to exclude producers of artificially grown fish from the benefits conferred upon producers of other substances brought into the store of national wealth by the arts of husbandry and animal industry.chanroblesvirtualawlibrary chanrobles virtual law library While we have no doubt that the land occupied by the ponds in which the fish in question are grown is agricultural land within the meaning of the Acts of Congress and of the Philippine Commission under consideration in the case of Map vs. Insular Government (10 Phil. Rep., 175) and others cited in the original majority opinion, it does not seem to us that this conclusion solves the problem. A man might cultivate the surface of a tract of land patented to him under the mining law, but the products of such soil would not for that reason, we apprehend, be any the less "agricultural products." Conversely, the admission that the land upon which these fishponds are constructed is not to be classified as mineral or forest land, does not lead of necessity to the conclusion that everything produced upon them is for that reason alone to be deemed an "agricultural product" within the meaning of the statute under consideration.chanroblesvirtualawlibrary chanrobles virtual law library "Agriculture" is an English word made upon of Latin words " ager," a field, and " cultura," cultivation. It is defined by

Webster's New International Dictionary as meaning in its broader sense, "The science and art of the production of plants and animal useful to man . . ."chanrobles virtual law library In Dillard vs. Webb (55 Ala., 468) it is held that the words "agriculture" includes "the rearing, feeding and managing of live stock." The same view was expressed in the case of Binzel vs. Grogan (67 Wis., 147).chanroblesvirtualawlibrary chanrobles virtual law library Webster defines "product" to be "anything that is produced, whether as the result of generation, growth, labor, or thought ... ," while "grow" is defined in the Century Dictionary as meaning "to cause to grow; cultivate; produce, raise . . .."chanrobles virtual law library While it is true that in a narrow and restricted sense agricultural products are limited to vegetable substances directly resulting from the tillage of the soil, it is evident from the definitions quoted that the term also includes animal which derived their sustenance from vegetable growths, and are therefore indirectly the product of the land. Thus it has been held that "The product of the dairy and the product of the poultry yard, while it does not come directly out of the soil is necessarily connected with the soil . . . and is therefore farm produce. (District of Columbia vs. Oyster, 15 D. C., 285.)chanrobles virtual law library In the case of Mayor vs. Davis (6 Watts & Sergeant [Penn. Rep.], 269) the court said: Swine horses, meat cattle, sheep, manure, cordwood, hay, vegetables, fruits, eggs, milk, butter, lard . . . are strictly produce of the farm . . . Without attempting to further multiply examples, we think it may safely be asserted that courts and lexicographers are in accord in holding that the term "agricultural products" is not limited in its meaning to vegetable growth, but includes everything which serves to satisfy human needs which is grown upon the land, whether it pertain to the vegetable kingdom, or to the animal kingdom. It is true that there is

no decision which as yet has held that the fish grown in ponds are an agricultural product, but that is no reason why we should not so hold if we find that such fish fall within the scope of the meaning of the term. Of necessity, the products of land tend constantly to multiply in number and variety, as population increases and new demands spring up. In California there are farms devoted to the growth of frogs for the market. In many places in North America foxes and other animals usually found wild are reared in confinement for their fur. In Japan land is devoted to the culture of the silkworm and the growth of the plants necessary for the food of those insects. Bees are everywhere kept for the wax and honey into which the land is made to produce by those engaged in these occupations are "agricultural products" in the same sense in which poultry, eggs, and butter have been held to be agricultural products.chanroblesvirtualawlibrary chanrobles virtual law library Now, if the purpose of agriculture, in the broader sense of the term, is to obtain from the land the products to which it is best adapted and through which it will yield the greatest return upon the expenditure of a given amount of labor and capital, can it not be said that it is just as much an agricultural process to enclose a given area of land with dykes, flood it with water, grow aquatic plants in it, and feed fish with the plants so produced as to fence in it and allow poultry to feed upon the plants naturally or artificially grown upon the surface? In the last analysis the result is the same - a given area of land produces a certain amount of food. In the one case it is the flesh of poultry, in the other the flesh of fish. It has been agreed between the parties that an important article of diet consumed by fish grown in a pond consists of certain marine plants which grow from roots which affix themselves to the bottom of the pond. In a real sense, therefore, the fish are just as truly a product of the land as are poultry or swine, living upon its vegetable growths, aquatic or terrestrial. Thus, land may truly be said to produce fish, although it is true that the producer is not a fisherman. Neither is one who grows foxes for their pelts a hunter. As contended by counsel, the inquiry is not whether fish in general constitute an agricultural product, but whether fish artificially grown and fed in confinement are to be so regarded. Honey produced by one who devotes his land to apiculture might be so regarded, even if we were to admit that wild honey gathered in the forest is not. Pigeons kept in domestication and fed by the owner would fall within the definition. Wild

pigeons obtained by a hunter would not. Firewood gathered in a natural forest is not an agricultural product, but firewood cut from bacauan trees planted for that purpose has been held to be such a product, and its producer exempt from the merchant's tax. (Mercado vs. Collector of Internal Revenue, 32 Phil. Rep., 271.) Other comparisons might be made, many of which will be found in the opinion in which two of the members of the court expressed their dissent from the original majority opinion, but enough have been given to make our position clear.chanroblesvirtualawlibrary chanrobles virtual law library During the many hears that the statute before us has been in existence, since it first appeared, substantially in its present form, in section 142 of Act No. 1189, passed in 1904, no attempt has been made, until this case arose, to construe it as not applying to fish grown in ponds, and much weight should be given to this long continued administrative interpretation. The opinion of the AttorneyGeneral, cited by Justice Malcolm, will be found on examination to have no bearing upon the present inquiry, as in that case question was, not whether fish grown and fed in ponds were agricultural products, but whether ". . . fishermen, shell and pearl gatherers . . ." were liable to the occupation tax. There is nothing in the opinion to indicate that the word "fishermen" was used to mean men growing fish in ponds, and it must, therefore, be assumed that it was used in its proper grammatical sense to designate persons engaged in catching fish not artificially produced.chanroblesvirtualawlibrary chanrobles virtual law library The decision in the case of The United States vs. Laxa (36 Phil. Rep., 670) is not controlling, as the reasoning upon which it is based was not concurred in by four members of the court. Furthermore, the Laxa case might be distinguished from the one now under consideration, were it necessary to do so, in that it has been stipulated in this case that fish cultivated in ponds subsist largely upon aquatic plants which grow from roots which attach themselves to the bottom of the pond, and are therefore in a real sense a product of the land, while in the Laxa case the evidence was that they subsisted solely upon free floating algae.chanroblesvirtualawlibrary chanrobles virtual law library

We are therefore of the opinion, and so hold, that the decision heretofore rendered herein must be set aside, and the judgment of the lower court affirmed. So ordered.chanroblesvirtualawlibrarychanrobles virtual law library Arellano, C.J., Torres and Johnson, JJ., concur. Araullo, J., dissents.

Separate Opinionschanrobles virtual law library STREET, J., concurring:chanrobles virtual law library At the original hearing, I became quite firmly convinced, as I supposed, that the product of a fishery maintained in the manner shown in this case ought not to be considered an agricultural products, within the meaning of the provision of the Internal Revenue Law which exempts agricultural products from the merchant's tax. Upon fuller reflection, and further consideration of the arguments advanced at the rehearing in favor of the other contention, I have come to the conclusion that I was wrong. I therefore take this opportunity to recede from my former position and to express my conformity with the opinion which now becomes the opinion of the majority of the court.chanroblesvirtualawlibrary chanrobles virtual law library My conformity with the opinion first written was based on the conviction that the term "agricultural products," as used in this statute, had reference to articles produced by purely agricultural processes, more especially by the tillage of the fields. As I now view the case, this conception of the meaning of agricultural is too narrow. It must be admitted that poultry, eggs, pigs, and other ordinary produce of farm and country are agricultural products within the meaning of the statute; and no sufficient reason is discernible for excluding fish produced under the conditions revealed in this case.

CARSON, J., dissenting:chanrobles virtual law library I dissent.chanroblesvirtualawlibrary chanrobles virtual law library As I understand them, the contentions of counsel in support of the motion for a rehearing and reconsideration are substantially identical with those adduced in briefs and the oral arguments when the case was originally submitted.chanroblesvirtualawlibrary chanrobles virtual law library I have heard nothing which would lead me to modify my views or my vote when the case was decided and the decision promulgated.

MALCOLM, J., dissenting:chanrobles virtual law library This case well illustrates how on the same facts, the same law, and the same authorities, judges can arrive at diametrically opposed conclusions.chanroblesvirtualawlibrary chanrobles virtual law library Take the facts. They are stipulated. The only difference is that possibly unconsciously, in order to fortify the conclusion, the decision of the majority on reconsideration would stress the point that an important article of diet consumed by fish grown in a pond consists of certain marine plants which grow from roots which affix themselves to the bottom of the pond, while the original decision as well as the decision in the Laxa case,1 possibly also in order to fortify their conclusions, would stress the scientific fact that the food of the bangus includes marine plants, that these algae are of seven classes, that one of these plants is rooted, that some of the others are very loosely attached to the ground but not rooted, and that generally the algae float on the water.chanroblesvirtualawlibrary chanrobles virtual law library

Or take the law. The section in dispute is made up of a few simple words. In reality, the meaning of the phrase, "agricultural products," is only to be ascertained. The primary duty of the court is, of course, to ascertain legislative intention. But here again the two decisions radically differ. The decision of the majority on reconsideration in a laudable endeavor to encourage commercial development would make this the purpose of the law and would follow this idea consistently to the end. On the other hand, the original decision would start with the same presumption but finding that to so construe the law would result in judicial amendment must then necessarily reach a different result; if the Legislature had intended to exempt all classes of domestic products which would include fish, it would undoubtedly have done so in plain language.chanroblesvirtualawlibrary chanrobles virtual law library

include everything which would fall under the word "products."chanrobles virtual law library My views and those of three other members of the court are fully set out in the first decision. Restatement or reargument will avail nothing. Suffice it to say that the argument on motion for reconsideration and the decision of the majority have failed to convince me that fish - or to accede to the critical suggestion of the majority - that fish produced as were those upon which the tax in question was levied, are an agricultural product. The administrative ruling of the Attorney-General, the decision of this court in United States vs. Laxa ([1917], 36 Phil., 670), and the original decision in the instant case should not be overturned by granting this motion. G.R. No. L-6355-56

Or take the authorities. The Supreme Court of Georgia (Davis vs. Mayor [1879], 64 Ga., 128) would confine "agricultural products" to the yield of the soil, as corn, wheat, rye, hay, etc. Possibly this court was right. The supreme courts Alabama and Wisconsin would go further and would include as" agricultural products" the rearing, feeding, and management of live stock. In this construction, these courts may have been right for, as one example, it is merely a matter of comparative profit to the farmer whether he markets his corn in the ear or on the hoof in the shape of swine. The Supreme Court of Pennsylvania (Mayor vs. Davis [1843], 6 W. S., 269) would go still further and would include as "agricultural products" swine, horses, meat, cattle, sheep, manure, cord, wood, hay, poultry vegetables, fruit, eggs, milk, butter, and lard, that is, domestic animals and products of the farm. Possibly, this court was right. And now the Supreme Court of the Philippine Islands in granting the motion for reconsideration would go even further and would include in the term "agricultural products," frogs, foxes, bees, pigeons, silkworms, silk, honey, and fish. Possibly, this court is right. Try as I may, for I am gratified to have this decision of the court, I cannot bring myself to this view. Without giving way to the temptation to use ironical and facetious language because of this result, let me merely make the observation that where the limit will reached is beyond my poor mind to comprehend. Another court could very well instead of prolonging the examples ad infinitum merely judicially repeal the word "agricultural" and

August 31, 1953

PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees, vs. SATURNINO DAVID, as Collector of Internal Revenue, defendant-appellant. Office of the Solicitor General Juan R. Liwag and Solicitor Jose P. Alejandro for appellant. Manuel O. Chan for appellees. MONTEMAYOR, J.: This is a joint appeal from the decision of the Court of First Instance of Manila declaring section 13 of Republic Act No. 590 unconstitutional, and ordering the appellant Saturnino David as Collector of Internal Revenue to refund to Justice Pastor M. Endencia the sum of P1,744.45, representing the income tax collected on his salary as Associate Justice of the Court of Appeals in 1951, and to Justice Fernando Jugo the amount of P2,345.46, representing the income tax collected on his salary from January 1,1950 to October 19, 1950, as Presiding Justice of the Court of Appeals, and from October 20, 1950 to December 31,1950, as Associate Justice of the Supreme Court, without special pronouncement as to costs.

Because of the similarity of the two cases, involving as they do the same question of law, they were jointly submitted for determination in the lower court. Judge Higinio B. Macadaeg presiding, in a rather exhaustive and well considered decision found and held that under the doctrine laid down by this Court in the case of Perfecto vs. Meer, 85 Phil., 552, the collection of income taxes from the salaries of Justice Jugo and Justice Endencia was a diminution of their compensation and therefore was in violation of the Constitution of the Philippines, and so ordered the refund of said taxes. We see no profit and necessity in again discussing and considering the proposition and the arguments pro and cons involved in the case of Perfecto vs. Meer, supra, which are raised, brought up and presented here. In that case, we have held despite the ruling enunciated by the United States Federal Supreme Court in the case of O 'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of a judicial officer in the Philippines is a diminution of such salary and so violates the Constitution. We shall now confine our-selves to a discussion and determination of the remaining question of whether or not Republic Act No. 590, particularly section 13, can justify and legalize the collection of income tax on the salary of judicial officers. According to the brief of the Solicitor General on behalf of appellant Collector of Internal Revenue, our decision in the case of Perfecto vs. Meer, supra, was not received favorably by Congress, because immediately after its promulgation, Congress enacted Republic Act No. 590. To bring home his point, the Solicitor General reproduced what he considers the pertinent discussion in the Lower House of House Bill No. 1127 which became Republic Act No. 590. For purposes of reference, we are reproducing section 9, Article VIII of our Constitution:. SEC. 9. The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. They shall receive such compensation as may be fixed by law, which shall not be diminished during their

continuance in office. Until the Congress shall provide otherwise, the Chief Justice of the Supreme Court shall receive an annual compensation of sixteen thousand pesos, and each Associate Justice, fifteen thousand pesos. As already stated construing and applying the above constitutional provision, we held in the Perfecto case that judicial officers are exempt from the payment of income tax on their salaries, because the collection thereof by the Government was a decrease or diminution of their salaries during their continuance in office, a thing which is expressly prohibited by the Constitution. Thereafter, according to the Solicitor General, because Congress did not favorably receive the decision in the Perfecto case, Congress promulgated Republic Act No. 590, if not to counteract the ruling in that decision, at least now to authorize and legalize the collection of income tax on the salaries of judicial officers. We quote section 13 of Republic Act No. 590: SEC 13. No salary wherever received by any public officer of the Republic of the Philippines shall be considered as exempt from the income tax, payment of which is hereby declared not to be dimunition of his compensation fixed by the Constitution or by law. So we have this situation. The Supreme Court in a decision interpreting the Constitution, particularly section 9, Article VIII, has held that judicial officers are exempt from payment of income tax on their salaries, because the collection thereof was a diminution of such salaries, specifically prohibited by the Constitution. Now comes the Legislature and in section 13, Republic Act No. 590, says that "no salary wherever received by any public officer of the Republic (naturally including a judicial officer) shall be considered as exempt from the income tax," and proceeds to declare that payment of said income tax is not a diminution of his compensation. Can the Legislature validly do this? May the Legislature lawfully declare the collection of income tax on the salary of a public official, specially a judicial officer, not a decrease of his salary, after the Supreme Court has found and decided otherwise? To determine this question, we shall have to go back to the fundamental principles regarding separation of powers.

Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional. Defining and interpreting the law is a judicial function and the legislative branch may not limit or restrict the power granted to the courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd 341, 342.) When it is clear that a statute transgresses the authority vested in the legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law of the state is imperative and unceasing; and, as Chief Justice Marshall said, whenever a statute is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the Constitution. Any other course would lead to the destruction of the Constitution. Since the question as to the constitutionality of a statute is a judicial matter, the courts will not decline the exercise of jurisdiction upon the suggestion that action might be taken by political agencies in disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-715.) Under the American system of constitutional government, among the most important functions in trusted to the judiciary are the interpreting of Constitutions and, as a closely connected power, the determination of whether laws and acts of the legislature are or are not

contrary to the provisions of the Federal and State Constitutions. (11 Am. Jur., 905.). By legislative fiat as enunciated in section 13, Republic Act NO. 590, Congress says that taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office," found in section 9, Article VIII of the Constitution, referring to the salaries of judicial officers. This act of interpreting the Constitution or any part thereof by the Legislature is an invasion of the well-defined and established province and jurisdiction of the Judiciary. The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied) The legislature cannot, upon passing a law which violates a constitutional provision, validate it so as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional inhibition. (11 Am. Jur., 919, emphasis supplied) We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the

Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government, particularly those governing the separation of powers. So much for the constitutional aspect of the case. Considering the practical side thereof, we believe that the collection of income tax on a salary is an actual and evident diminution thereof. Under the old system where the in-come tax was paid at the end of the year or sometime thereafter, the decrease may not be so apparent and clear. All that the official who had previously received his full salary was called upon to do, was to fulfill his obligation and to exercise his privilege of paying his income tax on his salary. His salary fixed by law was received by him in the amount of said tax comes from his other sources of income, he may not fully realize the fact that his salary had been decreased in the amount of said income tax. But under the present system of withholding the income tax at the source, where the full amount of the income tax corresponding to his salary is computed in advance and divided into equal portions corresponding to the number of pay-days during the year and actually deducted from his salary corresponding to each payday, said official actually does not receive his salary in full, because the income tax is deducted therefrom every payday, that is to say, twice a month. Let us take the case of Justice Endencia. As Associate Justice of the Court of Appeals, his salary is fixed at p12,000 a year, that is to say, he should receive P1,000 a month or P500 every payday, — fifteenth and end of month. In the present case, the amount collected by the Collector of Internal Revenue on said salary is P1,744.45 for one year. Divided by twelve (months) we shall have P145.37 a month. And further dividing it by two paydays will bring it down to P72.685, which is the income tax deducted form the collected on his salary each half month. So, if Justice Endencia's salary as a judicial officer were not exempt from payment of the income tax, instead of receiving P500 every payday, he would be actually receiving P427.31 only, and instead of receiving P12,000 a year, he would be receiving but P10,255.55. Is it not therefor clear that every payday, his salary is actually decreased by P72.685 and every year is decreased by P1,744.45? Reading the discussion in the lower House in connection with House Bill No. 1127, which became Republic Act No.

590, it would seem that one of the main reasons behind the enactment of the law was the feeling among certain legislators that members of the Supreme Court should not enjoy any exemption and that as citizens, out of patriotism and love for their country, they should pay income tax on their salaries. It might be stated in this connection that the exemption is not enjoyed by the members of the Supreme Court alone but also by all judicial officers including Justices of the Court of Appeals and judges of inferior courts. The exemption also extends to other constitutional officers, like the President of the Republic, the Auditor General, the members of the Commission on Elections, and possibly members of the Board of Tax Appeals, commissioners of the Public Service Commission, and judges of the Court of Industrial Relations. Compares to the number of all these officials, that of the Supreme Court Justices is relatively insignificant. There are more than 990 other judicial officers enjoying the exemption, including 15 Justices of the Court of Appeals, about 107 Judges of First Instance, 38 Municipal Judges and about 830 Justices of the Peace. The reason behind the exemption in the Constitution, as interpreted by the United States Federal Supreme Court and this Court, is to preserve the independence of the Judiciary, not only of this High Tribunal but of the other courts, whose present membership number more than 990 judicial officials. The exemption was not primarily intended to benefit judicial officers, but was grounded on public policy. As said by Justice Van Devanter of the United States Supreme Court in the case of Evans vs. Gore (253 U. S., 245): The primary purpose of the prohibition against diminution was not to benefit the judges, but, like the clause in respect of tenure, to attract good and competent men to the bench and to promote that independence of action and judgment which is essential to the maintenance of the guaranties, limitations and pervading principles of the Constitution and to the administration of justice without respect to person and with equal concern for the poor and the rich. Such being its purpose, it is to be construed, not as a private grant, but as a limitation imposed in the public interest; in other words, not restrictively, but in accord with its spirit and the principle on which it proceeds.

Having in mind the limited number of judicial officers in the Philippines enjoying this exemption, especially when the great bulk thereof are justices of the peace, many of them receiving as low as P200 a month, and considering further the other exemptions allowed by the income tax law, such as P3,000 for a married person and P600 for each dependent, the amount of national revenue to be derived from income tax on the salaries of judicial officers, were if not for the constitutional exemption, could not be large or substantial. But even if it were otherwise, it should not affect, much less outweigh the purpose and the considerations that prompted the establishment of the constitutional exemption. In the same case of Evans vs. Gore, supra, the Federal Supreme Court declared "that they (fathers of the Constitution) regarded the independence of the judges as far as greater importance than any revenue that could come from taxing their salaries. When a judicial officer assumed office, he does not exactly ask for exemption from payment of income tax on his salary, as a privilege . It is already attached to his office, provided and secured by the fundamental law, not primarily for his benefit, but based on public interest, to secure and preserve his independence of judicial thought and action. When we come to the members of the Supreme Court, this excemption to them is relatively of short duration. Because of the limited membership in this High Tribunal, eleven, and due to the high standards of experience, practice and training required, one generally enters its portals and comes to join its membership quite late in life, on the aver-age, around his sixtieth year, and being required to retire at seventy, assuming that he does not die or become incapacitated earlier, naturally he is not in a position to receive the benefit of exemption for long. It is rather to the justices of the peace that the exemption can give more benefit. They are relatively more numerous, and because of the meager salary they receive, they can less afford to pay the income tax on it and its diminution by the amount of the income tax if paid would be real, substantial and onerous. Considering exemption in the abstract, there is nothing unusual or abhorrent in it, as long as it is based on public policy or public interest. While all other citizens are subject to arrest when charged with the commission of a crime, members of the Senate and House of Representatives except in cases of treason, felony and breach of the peace

are exempt from arrest, during their attendance in the session of the Legislature; and while all other citizens are generally liable for any speech, remark or statement, oral or written, tending to cause the dishonor, discredit or contempt of a natural or juridical person or to blacken the memory of one who is dead, Senators and Congressmen in making such statements during their sessions are extended immunity and exemption. And as to tax exemption, there are not a few citizens who enjoy this exemption. Persons, natural and juridical, are exempt from taxes on their lands, buildings and improvements thereon when used exclusively for educational purposes, even if they derive income therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are exempted from the payment of taxes on the income or interest they receive therefrom (sec. 29 (b) [4], National Internal Revenue Code as amended by Republic Act No. 566). Payments or income received by any person residing in the Philippines under the laws of the United States administered by the United States Veterans Administration are exempt from taxation. (Republic Act No. 360). Funds received by officers and enlisted men of the Philippine Army who served in the Armed Forces of the United States, allowances earned by virtue of such services corresponding to the taxable years 1942 to 1945, inclusive, are exempted from income tax. (Republic Act No. 210). The payment of wages and allowances of officers and enlisted men of the Army Forces of the Philippines sent to Korea are also exempted from taxation. (Republic Act No. 35). In other words, for reasons of public policy and public interest, a citizen may justifiably by constitutional provision or statute be exempted from his ordinary obligation of paying taxes on his income. Under the same public policy and perhaps for the same it not higher considerations, the framers of the Constitution deemed it wise and necessary to exempt judicial officers from paying taxes on their salaries so as not to decrease their compensation, thereby insuring the independence of the Judiciary. In conclusion we reiterate the doctrine laid down in the case of Perfecto vs. Meer, supra, to the effect that the collection of income tax on the salary of a judicial officer is a diminution thereof and so violates the Constitution. We further hold that the interpretation and application of the Constitution and of statutes is within the exclusive province and jurisdiction of the Judicial department, and that in

enacting a law, the Legislature may not legally provide therein that it be interpreted in such a way that it may not violate a Constitutional prohibition, thereby tying the hands of the courts in their task of later interpreting said statute, specially when the interpretation sought and provided in said statute runs counter to a previous interpretation already given in a case by the highest court of the land.

majority in ruling that no legislation may provide that it be held valid although against a provision of the Constitution.

In the views of the foregoing considerations, the decision appealed from is hereby affirmed, with no pronouncement as to costs.

JOSE A. ANGARA, petitioner, vs. THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,respondents.

Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.

G.R. No. L-45081

July 15, 1936

Godofredo Reyes for petitioner. Office of the Solicitor General Hilado for respondent Electoral Commission. Pedro Ynsua in his own behalf. No appearance for other respondents. Separate Opinions LAUREL, J.: BAUTISTA ANGELO, J., concurring: Without expressing any opinion on the doctrine laid down by this Court in the case of Perfecto vs. Meer, G. R. No. L2314, in view of the part I had in that case as former Solicitor General, I wish however to state that I concur in the opinion of the majority to the effect that section 13, Republic Act No. 590, in so far as it provides that taxing of the salary of a judicial officer shall be considered "not to be a diminution of his compensation fixed by the Constitution or by law", constitutes an invasion of the province and jurisdiction of the judiciary. In this sense, I am of the opinion that said section is null and void, it being a transgression of the fundamental principle underlying the separation of powers.

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas. The facts of this case as they appear in the petition and as admitted by the respondents are as follows: (1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas;

PARAS, C.J., concurring and dissenting: I dissent for the same reasons stated in the dissenting opinion of Mr. Justice Ozaeta in Perfecto vs. Meer, 85 Phil., 552, in which I concurred. But I disagree with the

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the

said district, for having received the most number of votes; (3) That on November 15, 1935, the petitioner took his oath of office; (4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution: [No. 8] RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA. Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas. Adoptada, 3 de diciembre, 1935. (5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides: 6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia. (7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period; (8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation; (9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal"; (10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest." The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly; (b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly; (c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings; (d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed; (e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines. On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses: (a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the

election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court; (b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules: (c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie. The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense: (a) That at the time of the approval of the rules of the Electoral Commission on December 9,

1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes; (b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission; (c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition; (d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto; (e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable; ( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto

could it be subject in the exercise of its quasijudicial functions to a writ of prohibition from the Supreme Court; (g) That paragraph 6 of article 7 of the TydingsMcDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar. The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936. There was no appearance for the other respondents. The issues to be decided in the case at bar may be reduced to the following two principal propositions: 1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative, 2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly? We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of twothirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be

called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even

then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government. But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers. In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the

respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld. Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece,

Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides: "SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election,

returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance. The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.) The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight

modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President. Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows: The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice. The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows: (6) The elections, returns and qualifications of the Members of the National Assembly and all

cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices. During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft: xxx

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Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission. Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined. Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also

the election of those whose election is not contested? Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested. Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay. Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims — in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question. However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated. Mr. ROXAS. But that is a different matter, I think Mr. Delegate. Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the sections which refers to elections, returns and qualifications. Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity. Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections of the members." Mr. ROXAS. I do not think so, unless there is a protest. Mr. LABRADOR. Mr. President, will the gentleman yield? THE PRESIDENT. The gentleman may yield, if he so desires. Mr. ROXAS. Willingly. Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason. Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission. Mr. ROXAS. By the assembly for misconduct. Mr. LABRADOR. I mean with respect to the qualifications of the members. Mr. ROXAS. Yes, by the Electoral Commission. Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its members? Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission.

members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said: xxx

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Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place:

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested.

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

Mr. ROXAS. Yes, sir: that is the purpose.

El Sr. PRESIDENTE. ¿Que dice el Comite?

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised.

El Sr. ROXAS. Con mucho gusto.

Mr. ROXAS. I have just said that they have no power, because they can only judge. In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo? El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa

forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo. El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo? El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo. xxx

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The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56). In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventysix (76) against forty-six (46), thus maintaining the nonpartisan character of the commission. As approved on January 31, 1935, the draft was made to read as follows: (6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the

Chief Justice, the Commission to be presided over by one of said justices. The Style Committee to which the draft was submitted revised it as follows: SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly. When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention. The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government. Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936: 153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes

of proceeding prevailed, in the determination of controverted elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased. 154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but

too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly selfelective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality." 155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common

pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons. As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission. The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress

passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest. The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.) From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan

considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court. The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority

would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted. We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the

concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction. But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of

election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the National Assembly — on the hypothesis that it still retained the incidental power of regulation in such cases — had already barred the presentation of protests before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided. From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such

member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935). Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166). Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those

members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation. Summarizing, we conclude: (a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial. (b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted. (c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries. (d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the

government transcends the Constitution, which is the source of all authority. (e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments. (f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly. (g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members. (h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission. (i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests. ( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest. (l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. (m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed. We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe. In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or

person within the purview of sections 226 and 516 of the Code of Civil Procedure. The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered. Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions ABAD SANTOS, J., concurring: I concur in the result and in most of the views so ably expressed in the preceding opinion. I am, however, constrained to withhold my assent to certain conclusions therein advanced. The power vested in the Electoral Commission by the Constitution of judging of all contests relating to the election, returns, and qualifications of the members of the National Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.) It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional provision to the contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to the National Assembly.

The Constitution of the United States contains a provision similar to the that found in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power to regulate the time in which notice of a contested election may be given. Thus section 201, Title 2, of the United States Code Annotated prescribes: Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.) The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members. Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows: The Senate and the House of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from their respective funds. The purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative elections contests from the category of political to that of justiciable questions. The purpose was not to place the commission

beyond the reach of the law, but to insure the determination of such contests with the due process of law. Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article XV, section 2, of which provides that — All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the National Assembly, and all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution. The manifest purpose of this constitutional provision was to insure the orderly processes of government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the Constitution, and that all references in such laws to the government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the government and corresponding officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of the Constitution to hold that section 478 of the Election Law remains operative and should now be construed to refer to the Electoral Commission, which, in so far as the power to judge election contests is concerned, corresponds to either the Senate or the House of Representative under the former regime. It is important to observe in this connection that said section 478 of the Election Law vested the power to regulate the time and manner in which notice of a contested election may be given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In other words, the authority to prescribe the time and manner of filing contests in the elections of members of the Philippine Legislature was by statute lodged separately in the bodies clothed with power

to decide such contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe the time and manner of filing contests in the election of members of the National Assembly is vested in the Electoral Commission, which is now the body clothed with power to decide such contests. In the light of what has been said, the resolution of the National Assembly of December 3, 1935, could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its resolution of December 9, 1935, which fixed the time with in which written contests must be filed with the commission. Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A. Angara. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-33628 December 29, 1987 BIENVENIDO A. EBARLE, SANTIAGO EISMA, MIRUFO CELERIAN, JOSE SAYSON, CESAR TABILIRAN, and MAXIMO ADLAWAN, petitioners, vs. HON. JUDGE MELQUIADES B. SUCALDITO, RUFINO LABANG, MENELEO MESINA, ARTURO GUILLERMO, IN THEIR RESPECTIVE CAPACITIES AS JUDGE OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA DEL SUR, CITY FISCAL OF PAGADIAN CITY AND STATE PROSECUTOR, and ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC., respondents. No. L-34162 December 29, 1987

BIENVENIDO A. EBARLE, petitioner, vs. HON. JUDGE ASAALI S. ISNANI, RUFINO LABANG, ALBERTO S. LIM, JR., JESUS ACEBES, IN THEIR RESPECTIVE CAPACITIES AS JUDGE OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA DEL SUR, CITY FISCAL OF PAGADIAN CITY AND STATE PROSECUTORS, ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC., and ARTEMIO ROMANILLOS, respondents.

SARMIENTO, J.: The petitioner, then provincial Governor of Zamboanga del Sur and a candidate for reelection in the local elections of 1971, seeks injunctive relief in two separate petitions, to enjoin further proceedings in Criminal Cases Nos. CCC XVI-4-ZDS, CCC XVI-6-ZDS, and CCC XVI-8-ZDS of the then Circuit Criminal Court sitting in Pagadian City, as well as I.S. Nos. 1-70, 2-71, 4-71, 5-71, 6-71, and 7-71 of the respondent Fiscal's office of the said city, all in the nature of prosecutions for violation of certain provisions of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) and various provisions of the Revised Penal Code, commenced by the respondent Anti-Graft League of the Philippines, Inc. On June 16, 1971 and October 8, 1971, respectively, we issued temporary restraining orders directing the respondents (in both petitions) to desist from further proceedings in the cases in question until further orders from the Court. At the same time, we gave due course to the petitions and accordingly, required the respondents to answer. The petitions raise pure question of law. The facts are hence, undisputed. On September 26, 1970, the private respondent Anti-Graft League of the Philippines, Inc., filed a complaint with the respondent City Fiscal, docketed as Criminal Case No. 170 thereof, for violation of the provisions of the Anti-Graft

Law as well as Article 171 of the Revised Penal Code, as follows: xxx xxx xxx SPECIFICATION NO. I — That on or about October 10, 1969, above-named respondents, conspiring and confabulating together, allegedly conducted a bidding for the supply of gravel and sand for the Province of Zamboanga del Sur: that it was made to appear that Tabiliran Trucking Company won the bidding; that, thereafter, the award and contract pursuant to the said simulated bidding were effected and executed in favor of Tabiliran Trucking Company; that, in truth and in fact, the said bidding was really simulated and the papers on the same were falsified to favor Tabiliran Trucking Company, represented by the private secretary of respondent Bienvenido Ebarle, formerly confidential secretary of the latter; that said awardee was given wholly unwarranted advantage and preference by means of manifest partiality; that respondent officials are hereby also charged with interest for personal gain for approving said award which was manifestly irregular and grossly unlawful because the same was facilitated and committed by means of falsification of official documents. SPECIFICATION NO. II That after the aforecited award and contract, Tabiliran Trucking Company, represented by respondent Cesar Tabiliran, attempted to collect advances under his trucking contract in the under his trucking contract in

the amount of P4,823.95 under PTA No. 3654; that the same was not passed in audit by the Provincial Auditor in view of the then subsisting contract with Tecson Trucking Company; which was to expire on November 2, 1969; that nevertheless the said amount was paid and it was made to appear that it was collected by Tecson Trucking Company, although there was nothing due from tile latter and the voucher was never indorsed or signed by the operator of Tecson Trucking; and that in facilitating and consummating the aforecited collection, respondent officials, hereinabove cited, conspired and connived to the great prejudice and damage of the Provincial Government of Zamboanga del Sur. 1 xxx xxx xxx On the same date, the private respondent commenced Criminal Case No. 2-71 of the respondent City Fiscal, another proceeding for violation of Republic Act No. 3019 as well as Article 171 of the Revised Penal Code. The complaint reads as follows: xxx xxx xxx That on or about April 8, 1970, a bidding was held for the construction of the right wing portion of the Capitol Building of the Province of Zamboanga del Sur, by the Bidding Committee composed of respondents cited hereinabove; that the said building was maliciously manipulated so as to give wholly unwarranted advantage and preference in favor of the, supposed winning bidder, Codeniera Construction, allegedly owned and managed by Wenceslao Codeniera, brother-in-law of the wife of respondent Bienvenido Ebarle; that

respondent official is interested for personal gain because he is responsible for the approval of the manifestly irregular and unlawful award and contract aforecited; and that, furthermore, respondent, being a Member of the Bidding Committee, also violated Article 171 of the Revised Penal Code, by making it appear in the very abstract of bids that another interested bidder, was not interested in the bidding, when in truth and in fact, it was not so. 2 xxx xxx xxx On January 26, 1971, the private respondent instituted I.S. No. 4-71 of the respondent Fiscal, a prosecution for violation of Articles 182, 183, and 318 of the Revised Penal Code, as follows: xxx xxx xxx That on or about April 4, 1967, in Pagadian City, said respondent testified falsely under oath in Cadastral Case No. N-17, LRC CAD REC. NO. N-468, for registration of title to Lot No. 2545 in particular; That respondent BIENVENIDO EBARLE testified falsely under oath during the hearing and reception of evidence that he acquired said lot by purchase from a certain Brigido Sanchez and that he is the owner, when in truth and in fact Lot 2545 had been previously acquired and is owned by the provincial Government of Zamboanga del Sur, where the provincial jail building is now located. 2. That aforesaid deceit, false testimony and untruthful statement of respondent in said Cadastral case

were made knowingly to the great damage and prejudice of the Provincial Government of Zamboanga del Sur in violation of aforecited provisions of the Revised Penal Code. 3 On February 10, 1971, finally, the private respondent filed a complaint, docketed as I.S. No. 5-71 of the respondent Fiscal, an action for violation of Republic Act No. 3019 and Articles 171 and 213 of the Revised Penal Code, as follows: xxx xxx xxx We hereby respectfully charge the above-named respondents for violation of Sec. 3, R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Articles 171 and 213, Revised Penal Code and the rules and regulations of public bidding, committed as follows: 1. That on June 16, 1970, without publication, respondents conducted the socalled "bidding" for the supply of gravel and sand for the province of Zamboanga del Sur; that said respondents, without any valid or legal ground, did not include or even open the bid of one Jesus Teoson that was seasonably submitted, despite the fact that he is a registered duly

qualified operator of "Teoson Trucking Service," and notwithstanding his compliance with all the rules and requirements on public bidding; that, instead, aforecited respondents illegally and irregularly awarded said contract to Cesar Tabiliran, an associate of respondent Governor Bienvenido Ebarle; and 2. That in truth and in fact, aforesaid "bidding" was really simulated and papers were falsified or otherwise "doctored" to favor respondent Cesar Tabiliran thereby giving him wholly unwarranted advantage, preference and benefits by means of manifest partiality; and that there is a statutory presumption of interest for personal gain because the

transaction and award were manifestly irregular and contrary to applicable law, rules and regulations. 4 xxx xxx xxx The petitioner initially moved to dismiss the aforesaid preliminary investigations, but the same having been denied, he went to the respondent Court of First Instance of Zamboanga del Sur, the Honorable Melquiades Sucaldito presiding, on prohibition and mandamus (Special Case No. 1000) praying at the same time, for a writ of preliminary injunction to enjoin further proceedings therein. The court granted preliminary injunctive relief (restraining order) for which the Anti-Graft League filed a motion to have the restraining order lifted and to have the petition itself dismissed.

That on or about December 18, 1969, in Pagadian City, and within the jurisdiction of this Honorable Court, BIENVENIDO A. EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extended and gave ELIZABETH EBARLE MONTESCLAROS, daughter of his brother, his relative by consanguinity within the third degree, and appointment as Private Secretary in the Office of the Provincial Governor of Zamboanga del Sur, although he well know that the latter is related with him within the third degree by consanguinity. CONTRARY TO LAW. 5 xxx xxx xxx

latter is related with him within the third degree of consanguinity. CONTRARY TO LAW. 6 xxx xxx xxx xxx xxx xxx That on or about December 18, 1969, in Pagadian City, and within the jurisdiction of this Honorable Court, BIENVENIDO A. EBARLE, then and there unlawfully and feloniously made untruthful statements in a narration of facts by accomplishing and issuing a certificate, to wit: c. That the provisions of law and rules on promotion, seniority and nepotism have been observed.

xxx xxx xxx On May 14, 1971, the respondent, Judge Sucaldito, handed down the first of the two challenged orders, granting Anti-Graft League's motion and dismissing Special Case No. 1000. On June 11, 1971, the petitioner came to this Court on certiorari with prayer for a temporary restraining order (G.R. No. 33628). As we said, we issued a temporary restraining order on June 16, 1971. Meanwhile, and in what would begin yet another series of criminal prosecutions, the private respondent, on April 26, 1971, filed three complaints, subsequently docketed as Criminal Cases Nos. CCC XVI-4-ZDS, CCC XVI-6-ZDS, and CCC XVI-8-ZDS of the Circuit Criminal Court of Pagadian City for violation of various provisions of the AntiGraft Law as well as Article 171(4) of the Revised Penal Code, as follows: xxx xxx xxx

That on or about December 18, 1969, in Pagadian City, and within the jurisdiction of this Honorable Court, BIENVENIDO A. EBARLE, then and there unlawfully and feloniously made untruthful statements in a narration of facts by accomplishing and issuing a certificate, to wit: ,

required by law in such cases, in support of the appointment he extended to TERESITO MONTESCLAROS, husband of his niece Elizabeth Ebarle, as Motor Pool Dispatcher, Office of the Provincial Engineer of Zamboanga del Sur, although he well knew that the latter is related with him within the third degree affinity.

c. That the provisions of law and rules on promotion, seniority and nepotism have been observed.

CONTRARY TO LAW. 7 xxx xxx xxx

required by law in such cases, in support of the appointment he extended to ELIZABETH EBARLEMONTESCLAROS as Private Secretary in the Office of the Provincial Governor of Zamboanga del Sur, although he well know that the

Subsequently, on August 23, 1971, the private respondent brought I.S. No. 6-71 of the respondent Pagadian City Fiscal against the petitioner, still another proceeding for violation of Republic Act No. 3019 and Article 171 (4) of the Revised Penal Code, thus:

xxx xxx xxx First Count. That on or about December 1, 1969, in Pagadian City, BIENVENIDO A. EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extended and gave MARIO EBARLE, son of his brother, his relative by consanguinity within the third degree, an appointment as SECURITY GUARD in the Office of the Provincial Engineer of Zamboanga del Sur although he well knew that the latter is related with him in the third degree by consanguinity and is not qualified under the Civil Service Law. Second Count. That in January, 1970, at Pagadian City, Gov. BIENVENIDO A. EBARLE replaced JOHNNY ABABONwho was then the incumbent Motor Pool Dispatcher in the Office of the Provincial Engineer of Zamboanga del Sur with his nephew-in-law TERESITO MONTESCLAROS relative by affinity within the third Civil degree, in violation of the Civil Service Law, this knowingly causing undue injury in the discharge of his administrative function through manifest partiality against said complaining employee. Third Count: That on or about December 18, 1969, in Pagadian City, BIENVENIDO A. EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously

extended and gave ELIZABETH EBARLE MONTESCLAROS, daughter of his brother, his relative by consanguinity within the third degree, an appointment as Private Secretary in the Office of the Provincial Governor of Zamboanga del Sur, although he well know that the latter is related with him within the third degree of consanguinity, and said appointment is in violation of the Civil Service Law. Fourth Count. That on or about January 22, 1970, in Pagadian City, BIENVENIDO A. EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extended and gave ZACARIAS UGSOD, JR., son of the younger sister of Governor Ebarle, his relative by consanguinity within the third degree, an appointment as Architectural Draftsman in the Office of the Provincial Engineer of Zamboanga del Sur although he well know that the latter is related with him in the third degree of consanguinity. Fifth Count. That on February 5, 1970, at Pagadian City, BIENVENIDO A. EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extended and gave TERESITO MONTESCLAROS, husband of his niece ELIZABETH EBARLE, his relative by affinity within the third degree, an appointment as Motor Pool Dispatcher, Office of the Provincial Engineer of Zamboanga del Sur, although he wen knew then that the

latter was not qualified to such appointment as it was in violation of the Civil Service Law, thereby knowingly granting and giving unwarranted advantage and preference in the discharge of his administrative function through manifest partiality. II. SPECIFICATION FOR VIOLATION OF SECTION 4 (b), R.A. 3019 That on August 19, 1967, respondent BIENVENIDO A. EBARLE, Governor of Zamboanga del Sur, taking advantage of his position caused, persuaded, induced, or influence the Presiding Judge to perform irregular and felonious act in violation of applicable law or constituting an offense into awarding and decreeing Lot 2645 of the Pagadian Public Lands subdivision to him who, according to the records of the case, failed to establish his rights of ownership pursuant to the provisions of the Land Registration law and the Public Land Act, it appearing that the Provincial Government of Zamboanga del Sur as and is a claimant and in adverse possession of Lot 2545 whereon the Provincial Jail Building thereon still stands. III. SPECIFICATION FOR VIOLATION OF ARTICLE 171 (4), REVISED PENAL CODE First Count. That on or about December 18, 1969, in Pagadian City, BIENVENIDO A. EBARLE, then and there unlawfully and feloniously made untruthful statement in a narration of facts by

accomplishing and certificate, to wit:

issuing

a

c. That the provisions of law and rules on promotion, seniority and nepotism have been observed. required by law in such cases, in support of the appointment he extended to TERESITO MONTESCLAROS, husband of his niece ELIZABETH EBARLE, as Motor Pool Dispatcher, Office of the Provincial Engineer of Zamboanga del Sur, although he wen knew that the latter is related with him within the third degree of affinity and is in violation of the Civil Service Law. Second Count. That on or about December 18, 1969, in Pagadian City, BIENVENIDO A. EBARLE, then and there unlawfully and feloniously made untruthful statements a certificate, to wit:

On September 21, 1971, the private respondent instituted I.S. No. 7-71 of the said City Fiscal, again charging the petitioner with further violations of Republic Act No. 3019 thus: xxx xxx xxx First Count. That on or about December 2, 1969, in Pagadian City, BIENVENIDO EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extend and give unwarranted benefits and privileges BONINDA EBARLE, wife of his brother Bertuldo Ebarle, the former being his relative by affinity within the second civil degree, an appointment as LABORATORY TECHNICIAN in Pagadian City, although he well knew that the latter is related to him in the second degree by affinity and is not qualified under the Civil Service Law.

That on or about November 1, 1969, at Pagadian City, BIENVENIDO EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extend and give unwarranted benefits and privileges PHENINA CODINERA, sister-in-law of said respondent, an appointment as CONFIDENTIAL ASSISTANT in the Office of the Provincial Governor, Pagadian City, although he well knew that Phenina Codinera is related to him in the second civil degree of consanguinity and is not qualified under the Civil Service Law. ALL CONTRARY TO AFORECITED LAW. Please give due course to the above complaint and please set the case for immediate preliminary investigation pursuant to the First Indorsement dated August 27, 1971 of the Secretary of Justice, and in the paramount interest of good government. 9

Second Count. c. That the provisions of the law and rules on promotion, seniority and nepotism have been observed. required by law in such cases, in support of the appointment he extended to ELIZABETH EBARLEMONTESCLAROS as Private Secretary in the Office of the Provincial Governor of Zamboanga del Sur, although he well knew that the latter is related with him within the third degree of consanguinity, and is in violation of the Civil Service Law. CONTRARY to aforecited laws. 8 xxx xxx xxx

xxx xxx xxx That on or about January 1, 1970, at Pagadian City, BIENVENIDO EBARLE, Provincial Governor of Zamboanga del Sur, did then and there unlawfully and feloniously extend and give unwarranted benefits and privileges JESUS EBARLE, nephew of said respondent, an appointment as DRIVER of the Provincial Engineer's Office, Pagadian City, although he well knew that Jesus Ebarle is related to him within the third civil degree by consanguinity and is not qualified under the Civil Service Law. Third Count.

The petitioner thereafter went to the respondent Court of First Instance of Zamboanga del Sur, the Honorable Asaali Isnani presiding, on a special civil action (Special Civil Case No. 1048) for prohibition and certiorari with preliminary injunction. The respondent Court issued a restraining order. The respondent Anti-Graft League moved to have the same lifted and the case itself dismissed. On September 27, 1971, Judge Isnani issued an order, dismissing the case. On October 6, 1971, the petitioner instituted G.R. No. 34162 of this Court, a special civil action for certiorari with

preliminary injunction. As earlier noted, we on October 8, 1971, stayed the implementation of dismissal order. Subsequently, we consolidated both petitions considered the same submitted for decision.

and

Principally, the petitioner relies (in both petitions) on the failure of the respondents City Fiscal and the Anti-Graft League to comply with the provisions of Executive Order No. 264, "OUTLINING THE PROCEDUE BY WHICH COMPLAINANTS CHARGING GOVERNMENT OFFICIALS AND EMPLOYEES WITH COMMISSION OF IRREGULARITIES SHOULD BE GUIDED," 10 preliminary to their criminal recourses. At the same time, he assails the standing of the respondent Anti-Graft League to commence the series of prosecutions below (G.R. No. 33628). He likewise contends that the respondent Fiscal (in G.R. No. 34162), in giving due course to the complaints notwithstanding the restraining order we had issued (in G.R. No. 33628), which he claims applies as well thereto, committed a grave abuse of discretion. He likewise submits that the prosecutions in question are politically motivated, initiated by his rivals, he being, as we said, a candidate for reelection as Governor of Zamboanga del Sur. We dismiss these petitions. The petitioner's reliance upon the provisions of Executive Order No. 264 has no merit. We reproduce the Order in toto: MALACAÑANG

EXECUTIVE ORDER NO. 264 OUTLINING THE PROCEDURE BY WHICH COMPLAINANTS CHARGING GOVERNMENT OFFICIALS AND EMPLOYEES WITH COMMISSION OF IRREGULARITIES SHOULD BE GUIDED. WHEREAS, it is necessary that the general public be duly informed or reminded of the procedure provided by law and regulations by which complaints against public officials and employees should be presented and prosecuted. WHEREAS, actions on complaints are at times delayed because of the failure to observe the form.91 requisites therefor, to indicate with sufficient clearness and particularity the charges or offenses being aired or denounced, and to file the complaint with the proper office or authority; WHEREAS, without in any way curtailing the constitutional guarantee of freedom of expression, the Administration believes that many complaints or grievances could be resolved at the lower levels of government if only the provisions of law and regulations on the matter are duly observed by the parties concerned; and

RESIDENCE OF THE PRESIDENT OF THE PHILIPPINES MANILA BY THE PRESIDENT PHILIPPINES

OF

THE

WHEREAS, while all sorts of officials misconduct should be eliminated and punished, it is equally compelling that public officials and employees be given opportunity afforded them by the constitution and law to defend themselves in accordance with the procedure prescribed by law and regulations;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by law, do hereby order: 1. Complaints against public officials and employees shall be in writing, subscribed and sworn to by the complainants, describing in sufficient detail and particularity the acts or conduct complained of, instead of generalizations. 2. Complaints against presidential appointees shag be filed with the Office of the President or the Department Head having direct supervision or control over the official involved. 3. Those against subordinate officials and employees shall be lodged with the proper department or agency head. 4. Those against elective local officials shall be filed with the Office of the President in case of provincial and city officials, with the provincial governor or board secretary in case of municipal officials, and with the municipal or city mayor or secretary in case of barrio officials. 5. Those against members of police forces shall be filed with the corresponding local board of investigators headed by the city or municipal treasurer, except in the case of those appointed by the President which should be filed with the Office of the President. 6. Complaints against public officials and employees shall be promptly

acted upon and disposed of by the officials or authorities concerned in accordance with pertinent laws and regulations so that the erring officials or employees can be soonest removed or otherwise disciplined and the innocent, exonerated or vindicated in like manner, and to the end also that other remedies, including court action, may be pursued forthwith by the interested parties after administrative remedies shall have been exhausted.

e s i d e n t o f t h e

Done in the City of Manila, this 6th day of October, in the year of Our Lord, nineteen hundred and seventy. ( S g d . ) F E R D I N A N D E . M A R C O S P r

P h i l i p p i n e s B y t h e P r e s i d e n t : It is plain from the very wording( of the Order that it has exclusive application to administrative, S not criminal complaints. The Order itself shows g why.

The very title speaks of "COMMISSION OF IRREGULARITIES." There is no mention, not even by implication, of criminal "offenses," that is to say, "crimes." While "crimes" amount to "irregularities," the Executive Order could have very well referred to the more specific term had it intended to make itself applicable thereto. The first perambulatory clause states the necessity for informing the public "of the procedure provided by law and regulations by which complaints against public officials and employees should be presented and prosecuted. 12 To our mind, the "procedure provided by law and regulations" referred to pertains to existing procedural rules with respect to the presentation of administrative charges against erring government officials. And in fact, the aforequoted paragraphs are but restatements thereof. That presidential appointees are subject to the disciplinary jurisdiction of the President, for instance, is a reecho of the long-standing doctrine that the President exercises the power of control over his appointees. 13 Paragraph 3, on the other hand, regarding subordinate officials, is a mere reiteration of Section 33 of Republic Act No. 2260, the Civil Service Act (of 1959) then in force, placing jurisdiction upon "the proper Head of Department, the chief of a bureau or office" 14 to investigate and decide on matters involving disciplinary action. Paragraph 4, which refers to complaints filed against elective local officials, reiterates, on the other hand, the Decentralization Act of 1967, providing that "charges against any elective provincial and city officials shall be preferred before the President of the Philippines; against any elective municipal official before the provincial governor or the secretary of the provincial board concerned; and against any elective barrio official before the municipal or secretary concerned. 15 Paragraph 5, meanwhile, is a reproduction of the provisions of the Police Act of 1966, vesting upon a "Board of Investigators" 16 the jurisdiction to try and decide complaints against members of the Philippine police. Clearly, the Executive Order simply consolidates these existing rules and streamlines the administrative apparatus in the matter of complaints against public officials. Furthermore, the fact is that there is no reference therein

to judicial or prejudicial (like a preliminary investigation conducted by the fiscal) recourse, not because it makes such a resort a secondary measure, but because it does not intend to serve as a condition precedent to, much less supplant, such a court resort. To be sure, there is mention therein of "court action[s] [being] pursued forthwith by the interested parties, " 17 but that does not, so we hold, cover proceedings such as criminal actions, which do not require a prior administrative course of action. It will indeed be noted that the term is closely shadowed by the qualification, "after administrative remedies shall have been exhausted," 18 which suggests civil suits subject to previous administrative action. It is moreover significant that the Executive Order in question makes specific reference to "erring officials or employees ... removed or otherwise vindicated. 19 If it were intended to apply to criminal prosecutions, it would have employed such technical terms as "accused", "convicted," or "acquitted." While this is not necessarily a controlling parameter for all cases, it is here material in construing the intent of the measure. What is even more compelling is the Constitutional implications if the petitioner's arguments were accepted. For Executive Order No. 264 was promulgated under the 1935 Constitution in which legislative power was vested exclusively in Congress. The regime of Presidential lawmaking was to usher in yet some seven years later. If we were to consider the Executive Order law, we would be forced to say that it is an amendment to Republic Act No. 5180, the law on preliminary investigations then in effect, a situation that would give rise to a Constitutional anomaly. We cannot accordingly countenace such a view. The challenge the petitioner presents against the personality of the Anti-Graft League of the Philippines to bring suit is equally without merit. That the Anti-Graft League is not an "offended party" within the meaning of Section 2, Rule 110, of the Rules of Court (now Section 3 of the 1985 Rules on Criminal Procedure), cannot abate the complaints in question. A complaint for purposes of preliminary investigation by the fiscal need not be filed by the "offended party." The

rule has been that, unless the offense subject thereof is one that cannot be prosecuted de oficio, the same may be filed, for preliminary investigation purposes, by any competent person. 20 The "complaint" referred to in the Rule 110 contemplates one filed in court, not with the fiscal, In that case, the proceeding must be started by the aggrieved party himself. 21 For as a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it. But a "complaint" filed with the fiscal prior to a judicial action may be filed by any person. The next question is whether or not the temporary restraining order we issued in G.R. No. 33628 embraced as well the complaint subject of G.R. No. 34162. It is noteworthy that the charges levelled against the petitioner — whether in G.R. No. 33628 or 34162 — refer invariably to violations of the Anti-Graft Law or the Revised Penal Code. That does not, however, make such charges Identical to one another. The complaints involved in G.R. No. 34162 are, in general, nepotism under Sections 3(c) and (j) of Republic Act No. 3019; exerting influence upon the presiding Judge of the Court of First Instance of Zamboanga del Sur to award a certain parcel of land in his favor, over which the provincial government itself lays claims, contrary to the provisions of Section 4(b) of Republic Act No. 3019; and making untruthful statements in the certificates of appointment of certain employees in his office. On the other hand, the complaints subject matter of G.R. No. 33628 involve charges of simulating bids for the supply of gravel and sand for certain public works projects, in breach of Section 3 of the Anti-Graft statute; manipulating bids with respect to the construction of the capitol building; testifying falsely in connection with Cadastral Case No. N-17, LRC Cad. Rec. N-468, in which the petitioner alleged that he was the owner of a piece of land, in violation of Articles 182, 183, and 318 of the Revised Penal Code; and simulating bids for the supply of gravel and sand in connection with another public works project.

It is clear that the twin sets of complaints are characterized by major differences. When, therefore, we restrained further proceedings in I.S. Nos. 1-71, 2-71, and 4-71, subject of G.R. No. 33628. we did not consequently stay the proceedings in CCC-XVI-4-ZDS, CCC XVI-6-ZDS, CCC XVI-8-ZDS, and I.S. Nos. 6-71 and 7-71, the same proceedings we did restrain in G.R. No. 34162.

1 Rollo, G.R. No. 33628,40-41.

18 Supra, 19 Supra

2 Id, No. 42.

20 Hernandez v. Albano, No. L-17081, May 31, 1961, 2 SCRA 607 (1961).

3 Id, No. 43. 21 Supra. 4 Id, 45-46.

This brings us to the last issue: whether or not the complaints in question are tainted with a political color. It is not our business to resolve complaints the disposition of which belongs to another agency, in this case, the respondent Fiscal. But more than that, and as a general rule, injunction does not lie to enjoin criminal prosecutions. 22 The rule is subject to exceptions, to wit: (1) for the orderly administration of justice; (2) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (3) to avoid multiplicity of actions; (4) to afford adequate protection to constitutional rights; and (5) because the statute relied on is constitutionally infirm or otherwise void. 23 We cannot perceive any of the exceptions applicable here. The petitioner cries foul, in a manner of speaking, with respect to the deluge of complaints commenced by the private respondent below, but whether or not they were filed for harassment purposes is a question we are not in a position to decide. The proper venue, we believe, for the petitioner's complaint is precisely in the preliminary investigations he wishes blocked here.

5 Rollo, G.R. No. 34162,98 (Crim. Case No. CCC XVI-4-ZDS). 6 Id, 99 (Crim. Case No. CCC XVI-6ZDS). 7 Id, 100 (Crimi. Case No. CCC XVI-8ZDS).

EN BANC G.R. No. L-42050-66 November 20, 1978 10 Exec. Order No. 264 (1970), 66 O.G. 9344 (Oct. 1970). 11 Supra, 9394-9395.

13 See supra, par. 2; Ang-Angco v. Castillo, No. L-17169, November 30,1963, 9 SCRA 619 (1963). 14 Rep. Act No. 2260, sec. 33 (1959). 15 Rep. Act No. 5185, sec. 5 (1967). 16 Rep. Act No. 4864, sec. 15 (1966).

Footnotes

Republic of the Philippines SUPREME COURT Manila

9 Id, 94-95.

It is so ORDERED. Yap (Chairman), Melencio-Herrera, Paras, and Padilla, JJ., concur.

23 Supra.

8 Id, 32-35.

12 Supra, 9394. WHEREFORE, the petitions are DISMISSED. The temporary restraining orders are LIFTED and SET ASIDE. Costs against the petitioners.

22 Asutilla v. Philippine National Bank, No. L-51354, January 15; 1986, 141 SCRA 40 (1986); Guingona, Jr. v. City Fiscal of Manila, No. L- 60033, April 4,1984,128 SCRA 577 (1984).

17 Supra, par. 6.

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA, BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B. PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO BOGTONG, and EDGARDO M. MENDOZA, respondents. G.R. No. L-46229-32 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and REYNALDO

LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO VERSOZA, respondents. G.R. No. L-46313-16 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO and BEN CASTILLO Y UBALDO, respondents.

These twenty-six (26) Petitions for Review filed by the People of the Philippines represented, respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar, and joined by the Solicitor General, are consolidated in this one Decision as they involve one basic question of law. These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First Instance of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court of First Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition).

G.R. No. L-46997 November 20, 1978 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and PANCHITO REFUNCION, respondents. Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila and the Office of Provincial Fiscal of Samar for petitioners. Norberto Parto for respondents Candelosas, Baes and Garcia. Amado C. de la Marced for respondents Simeon Bundalian Jr., et al. Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.

Before those courts, Informations were filed charging the respective accused with "illegal possession of deadly weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the accused, the three Judges mentioned above issued in the respective cases filed before them — the details of which will be recounted below — an Order quashing or dismissing the Informations, on a common ground, viz, that the Information did not allege facts which constitute the offense penalized by Presidential Decree No. 9 because it failed to state one essential element of the crime. Thus, are the Informations filed by the People sufficient in form and substance to constitute the offense of "illegal possession of deadly weapon" penalized under Presidential Decree (PD for short) No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not being indispensable for the moment.

INFORMATION The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows: That on or about the 14 th day of December, 1974, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully, feloniously and knowingly have in his possession and under his custody and control one (1) carving knife with a blade of 6-½ inches and a wooden handle of 5-1/4 inches, or an overall length of 11-¾ inches, which the said accused carried outside of his residence, the said weapon not being used as a tool or implement necessary to earn his livelihood nor being used in connection therewith. Contrary to law. (p. 32, rollo of L42050-66) The other Informations are similarly worded except for the name of the accused, the date and place of the commission of the crime, and the kind of weapon involved.

A — The Information filed by the People —

Norberto L. Apostol for respondent Panchito Refuncion. Hon. Amante P. Purisima for and in his own behalf.

VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081

1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows: THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y DURAN, accused.

MUÑOZ PALMA, J.: Crim. Case No. 19639

2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren follows: THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y AQUINO, accused.

I M .

T O

C A S E N O . 2 9 6 7 7 V I O L . O F P A R . 3 , P D 9 I N R E L .

L O I N o . INFORMATION 2 6 The undersigned accuses 6 REYNALDO LAQUI Y AQUINO of a VIOLATION OF PARAGRAPH 3, o PRESIDENTIAL DECREE NO. 9 in f relation to Letter of Instruction No. 266 of the Chief Executive dated April 1, t 1975, committed as follows: h e That on or about the 28 th day of C January, 1977, in the City of Manila, Philippines, the said accused didh then and there wilfully, unlawfullyi and knowingly carry outside ofe his f residence a bladed and pointed weapon, to wit: an ice pick with an overall length of about 8½ inches, the E same not being used as a necessary x tool or implement to earn his livelihood e nor being used in connection c therewith. u t Contrary to law. (p. 14, rollo i of Lv 46229-32) e The other Informations are likewise similarly worded d except for the name of the accused, the date and place a of the commission of the crime, and the kind of weapon t involved. e d 3. In L-46997, the Information before the Court of First A Instance of Samar is quoted hereunder: p r

PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION, accused. C R I M . C A S E N O . 9 3 3 F o r : I L L E G A L P O S S E INFORMATION S S I The undersigned First Assistant O Provincial Fiscal of Samar, accuses N PANCHITO REFUNCION of the crime

of ILLEGAL POSSESSION O OF DEADLY WEAPON or VIOLATION F OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972, D pursuant to Proclamation No. 1081 E dated Sept. 21 and 23, 1972, A committed as follows: D L That on or about the 6th day Y of October, 1976, in the evening at Barangay Barruz, Municipality W of Matuginao, Province of Samar E Philippines, and within the jurisdiction A of this Honorabe Court, P the abovenamed accused, knowingly, O wilfully, unlawfully and feloniously N carried with him outside of his residence a deadly weapon called ( socyatan, an instrument which from its V very nature is no such as could be I used as a necessary tool or O instrument to earn a livelihood, which L act committed by the accused is a A Violation of Presidential Decree No. 9. T I CONTRARY TO LAW. (p. 8, rolloOof L46997) N B. — The Orders of dismissal —

O F

P In dismissing or quashing the Informations the trial courts concurred with the submittal of the defense thatD one essential element of the offense charged is missing from N the the Information, viz: that the carrying outside of O accused's residence of a bladed, pointed or blunt weapon . is in furtherance or on the occasion of, connected with or related to subversion, insurrection, or rebellion, organized 9 lawlessness or public disorder. ) 1. Judge Purisima reasoned out, inter alia, in this manner: ... the Court is of the opinion that in order that possession of bladed weapon or the like outside residence may be prosecuted and tried under

P.D. No. 9, the information must specifically allege that the possession of bladed weapon charged was for the purpose of abetting, or in furtherance of the conditions of rampant criminality, organized lawlessness, public disorder, etc. as are contemplated and recited in Proclamation No. 1081, as justification therefor. Devoid of this specific allegation, not necessarily in the same words, the information is not complete, as it does not allege sufficient facts to constitute the offense contemplated in P.D. No. 9. The information in these cases under consideration suffer from this defect.

For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its necessity can never be assailed. But it seems it is back-firing, because it is too hot in the hands of policemen who are inclined to backsliding. The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the Fiscal and the conscience of the Court, and hence this resolution, let alone technical legal basis, is prompted by the desire of this Court to apply said checkvalves. (pp. 55-57, rollo of L-42050-66) 2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:

xxx xxx xxx And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik.

xxx xxx xxx As earlier noted the "desired result" sought to be attained by Proclamation No. 1081 is the maintenance of law and order throughout the Philippines and the prevention and suppression of all forms of lawless violence as well as any act of insurrection or rebellion. It is therefore reasonable to conclude from the foregoing premises that the carrying of bladed, pointed or blunt weapons outside of one's residence which is made unlawful and punishable by said par. 3 of P.D. No. 9 is one thatabets subversion, insurrection or rebellion, lawless violence, criminality, chaos and public disorder or is intended to bring about these conditions. This conclusion is further strengthened by the fact that all previously existing laws that also made the carrying of similar weapons punishable have not been repealed, whether expressly or impliedly. It is noteworthy that Presidential Decree

No. 9 does not contain any repealing clause or provisions. xxx xxx xxx The mere carrying outside of one's residence of these deadly weapons if not concealed in one's person and if not carried in any of the aforesaid specified places, would appear to be not unlawful and punishable by law. With the promulgation of Presidential Decree No. 9, however, the prosecution, through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to quash, that this act is now made unlawful and punishable, particularly by paragraph 3 thereof, regardless of the intention of the person carrying such weapon because the law makes it "mala prohibita". If the contention of the prosecution is correct, then if a person happens to be caught while on his way home by law enforcement officers carrying a kitchen knife that said person had just bought from a store in order that the same may be used by one's cook for preparing the meals in one's home, such person will be liable for punishment with such a severe penalty as imprisonment from five to ten years under the decree. Such person cannot claim that said knife is going to be used by him to earn a livelihood because he intended it merely for use by his cook in preparing his meals. This possibility cannot be discounted if Presidential Decree No. 9 were to be interpreted and applied in the manner that that the prosecution wants it to be done. The good intentions of the President in promulgating this decree

may thus be perverted by some unscrupulous law enforcement officers. It may be used as a tool of oppression and tyranny or of extortion.

when we consider the penalty imposable, which is from five years to ten years. A strict enforcement of the provision of the said law would mean the imposition of the Draconian penalty upon the accused.

xxx xxx xxx It is therefore the considered and humble view of this Court that the act which the President intended to make unlawful and punishable by Presidential Decree No. 9, particularly by paragraph 3 thereof, is one that abets or is intended to abet subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder. (pp. 28-30, rollo of L-46229-32) 3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the Information filed before him, thus: ... We believe that to constitute an offense under the aforcited Presidential decree, the same should be or there should be an allegation that a felony was committed in connection or in furtherance of subversion, rebellion, insurrection, lawless violence and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law throughout the country was issued because of wanton destruction to lives and properties widespread lawlessness and anarchy. And in order to restore the tranquility and stability of the country and to secure the people from violence anti loss of lives in the quickest possible manner and time, carrying firearms, explosives and deadly weapons without a permit unless the same would fall under the exception is prohibited. This conclusion becomes more compelling

AND PROVIDING THEREFORE.

PENALTIES

WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the Philippines has been placed under a state of martial law;

xxx xxx xxx It is public knowledge that in rural areas, even before and during martial law, as a matter of status symbol, carrying deadly weapons is very common, not necessarily for committing a crime nor as their farm implement but for self-preservation or self-defense if necessity would arise specially in going to and from their farm. (pp. 18-19, rollo of L-46997) In most if not all of the cases, the orders of dismissal were given before arraignment of the accused. In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at the same time moved to quash the Information. In all the cases where the accused were under arrest, the three Judges ordered their immediate release unless held on other charges. C. — The law under which the Informations in question were filed by the People. As seen from the Informations quoted above, the accused are charged with illegal possession of deadly weapon in violation of Presidential Decree No. 9, Paragraph 3. We quote in full Presidential Decree No. 9, to wit: PRESIDENTIAL DECREE NO. 9 DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE UNLAWFUL

WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated September 22, 1972 and General Order No. 7 dated September 23, 1972, have been promulgated by me; WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed and abetted by the use of firearms, explosives and other deadly weapons; NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, in older to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that: 1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon conviction suffer: (a) The mandatory penalty of death by a firing squad or electrocution as a Military, Court/Tribunal/Commission may direct, it the firearm involved in the violation is unlicensed and is attended by assault upon, or resistance to persons in authority or their agents in the performance of

their official functions resulting in death to said persons in authority or their agent; or if such unlicensed firearm is used in the commission of crimes against persons, property or chastity causing the death of the victim used in violation of any other General Orders and/or Letters of Instructions promulgated under said Proclamation No. 1081: (b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military Court/Tribunal/commission may direct, when the violation is not attended by any of the circumstances enumerated under the preceding paragraph; (c) The penalty provided for in the preceding paragraphs shall be imposed upon the owner, president, manager, members of the board of directors or other responsible officers of any public or private firms, companies, corporations or entities who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity concerned to be used in violation of said General Orders Nos. 6 and 7. 2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail bombs," "fire bombs," or other incendiary device consisting of any chemical, chemical compound, or detonating agents containing combustible units or other ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by friction, by concussion, by percussion, or by detonation of all or part of the compound or mixture which may

cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructive effects on continguous objects or of causing injury or death of a person; and any person convicted thereof shall be punished by imprisonment ranging from ten to fifteen years as a Military Court/Tribunal/Commission may direct. 3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club, except where such articles are being used as necessary tools or implements to earn a livelihood and while being used in connection therewith; and any person found guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct. 4. When the violation penalized in the preceding paragraphs 2 and 3 is committed during the commission of or for the purpose of committing, any other crime, the penalty shall be imposed upon the offender in its maximum extent, in addition to the penalty provided for the particular offenses committed or intended to be committed. Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen hundred and seventy-two. ( S G D

D. — The arguments of the People — In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned orders of dismissal, the main argument advanced on the issue now under consideration is that a perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public policy. 1 The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection with the commission of the crime of subversion or the like, but also that of criminality in general, that is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated but by the actual recital of facts in the complaint or information. 2 E. — Our Ruling on the matter — 1. It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the accusation against him. 3

Pursuant to the above, Section 5,P Rule 110 of the Rules of Court, expressly requires that h for a complaint or information to be sufficient it must, i inter alia state the designation of the offense by the l statute, and the acts or omissions complained of as constituting i the offense. This is essential to avoid surprise on pthe accused and to afford him the opportunity to prepare hisp defense accordingly. 4 i n To comply with these fundamental requirements of the e Constitution and the Rules on Criminal Procedure, it is s imperative for the specific statute violated to be designated or mentioned 4 in the charge. In fact, another compelling reason exists why a specification of the statute violated is essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-called "deadly weapons" is the subject of another penal statute and a Manila city ordinance. Thus, Section 26 of Act No. 1780 provides: Section 26. It should be unlawful for any person to carry concealed about his person any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating the provisions of this section shall, upon conviction in a court of competent jurisdiction, be punished by a fine not exceeding five hundred pesos, or by imprisonment for a period not exceeding six months, or both such fine and imprisonment, in the discretion of the court. Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on December 4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not more than one months, or both, at the discretion of the court, anyone who shall carry concealed in his person in any manner that would disguise its deadly character any kind of firearm, bowie knife, or other deadly weapon ... in any public place.Consequently, it is necessary that the particular law violated be specified as there exists a substantial difference between the statute and city ordinance on the one hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the crime and the penalty imposed for the offense.

We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed repealed by P.D. 9 (3). 5 P. D. 9(3) does not contain any repealing clause or provision, and repeal by implication is not favored. 6 This principle holds true with greater force with regards to penal statutes which as a rule are to be construed strictly against the state and liberally in favor of the accused. 7 In fact, Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and their violation or non- observance shall not be excused by disuse, or custom or practice to the contrary. Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential decree. That being the case, the right becomes more compelling for an accused to be confronted with the facts constituting the essential elements of the offense charged against him, if he is not to become an easy pawn of oppression and harassment, or of negligent or misguided official action — a fear understandably shared by respondent Judges who by the nature of their judicial functions are daily exposed to such dangers. 2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the offense treated in the presidential decree in question? We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and second, that the act of carrying the weapon was either in furtherance of, or to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public disorder. It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of the scope of the statute or the city ordinance mentioned above. In other words, a simple act of carrying any of the weapons described in the presidential decree is not a criminal offense in itself. What makes the act criminal or punishable

under the decree is the motivation behind it. Without that motivation, the act falls within the purview of the city ordinance or some statute when the circumstances so warrant. Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid construction given to P.D. 9(3). 3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person carries outside his residence any of the weapons mentioned or described in the decree irrespective of motivation, intent, or purpose, converts these cases into one of "statutory construction." That there is ambiguity in the presidential decree is manifest from the conflicting views which arise from its implementation. When ambiguity exists, it becomes a judicial task to construe and interpret the true meaning and scope of the measure, guided by the basic principle that penal statutes are to be construed and applied liberally in favor of the accused and strictly against the state.

and abetted by the use of firearms and explosives and other deadly weapons. The Solicitor General however contends that a preamble of a statute usually introduced by the word "whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent defects in the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of the decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch as such explanatory note merely states or explains the reason which prompted the issuance of the decree. (pp. 114-115, rollo of 46997)

Second, the result or effects of the presidential decree must be within its reason or intent. In the paragraph immediately following the last "Whereas" clause, the presidential decree states:

We disagree with these contentions. Because of the problem of determining what acts fall within the purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can be found among others in the preamble or, whereas" clauses which enumerate the facts or events which justify the promulgation of the decree and the stiff sanctions stated therein.

4. In the construction or interpretation of a legislative measure — a presidential decree in these cases — the primary rule is to search for and determine the intent and spirit of the law. Legislative intent is the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice Claudio Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be so if strict adherence to the letter would result in absurdity, injustice and contradictions. 8

A "preamble" is the key of the statute, to open the minds of the makers as to the mischiefs which are to be remedied, and objects which are to be accomplished, by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639, cited in Words and Phrases, "Preamble"; emphasis supplied)

There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).

While the preamble of a statute is not strictly a part thereof, it may, when the statute is in itself ambiguous and difficult of interpretation, be resorted to, but not to create a doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294, cited in Words and Phrases, "Preamble")

First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are clearly spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial law in the country pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result of Proclamation 1081 as well as General Orders Nos. 6 and 7 which are particularly mentioned in P.D. 9; and (3) the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality, chaos, aid public disorder mentioned in Proclamation 1081 are committed

particular provision alone. This is a cardinal rule of statutory construction. For taken in the abstract, a word or phrase might easily convey a meaning quite different from the one actually intended and evident when the word or phrase is considered with those with which it is associated. Thus, an apparently general provision may have a limited application if read together with other provisions. 9

In Aboitiz Shipping Corporation, et et al. this Court had occasion to intent must be ascertained from statute as a whole, and not of

al. v. The City of Cebu, state that '(L)egislative a consideration of the an isolated part or a

NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the Armed Forces of the Philippines, in order to attain the desired result of the aforesaid Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and decree that: xxx xxx xxx From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of the underlying reasons for its issuance are quoted hereunder: WHEREAS, these lawless elements having taken up arms against our duly constituted government and against our people, and having committed and are still committing acts of armed insurrection and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders,

spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless civilian lives and property, all of which activities have seriously endangered and continue to endanger public order and safety and the security of the nation, ... xxx xxx xxx WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces of our duly constituted government and the New People's Army and their satellite organizations because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders and depredations committed and being committed by the aforesaid lawless elements who have pledged to the whole nation that they will not stop their dastardly effort and scheme until and unless they have fully attained their primary and ultimate purpose of forcibly seizing political and state power in this country by overthrowing our present duly constituted government, ... (See Book I, Vital Documents on the Declaration of Martial Law in the Philippines by the Supreme Court of the Philippines, pp. 13-39) It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with or related to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.

Statutes are to be construed in the light of purposes to be achieved and the evils sought to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited in LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied) When construing a statute, the reason for its enactment should be kept in mind, and the statute should be construed with reference to its intended scope and purpose. (Statutory Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis supplied) 5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the measure if a strict adherence to the letter of the paragraph is followed. It is a salutary principle in statutory construction that there exists a valid presumption that undesirable consequences were never intended by a legislative measure, and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil, and injurious consequences. 9a It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was no intent to work a hardship or an oppressive result, a possible abuse of authority or act of oppression, arming one person with a weapon to impose hardship on another, and so on. 10 At this instance We quote from the order of Judge Purisima the following: And while there is no proof of it before the Court, it is not difficult to believe the murmurings of detained persons brought to Court upon a charge of

possession of bladed weapons under P.D. No. 9, that more than ever before, policemen - of course not all can be so heartless — now have in their hands P.D. No. 9 as a most convenient tool for extortion, what with the terrifying risk of being sentenced to imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which only God knows where it came from. Whereas before martial law an extortion-minded peace officer had to have a stock of the cheapest paltik, and even that could only convey the coercive message of one year in jail, now anything that has the semblance of a sharp edge or pointed object, available even in trash cans, may already serve the same purpose, and yet five to ten times more incriminating than the infamous paltik. (pp. 72-73, rollo L-42050-66) And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in absurdity at times. To his example We may add a situation where a law-abiding citizen, a lawyer by profession, after gardening in his house remembers to return the bolo used by him to his neighbor who lives about 30 meters or so away and while crossing the street meets a policeman. The latter upon seeing the bolo being carried by that citizen places him under arrest and books him for a violation of P.D. 9(3). Could the presidential decree have been conceived to produce such absurd, unreasonable, and insensible results? 6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused. American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited." 11 The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts. 12

Our own decisions have set down the same guidelines in this manner, viz:

Information wherein the facts recited did not constitute a public offense as defined in Section 1, Republic Act 145. 15

Criminal statutes are to be construed strictly. No person should be brought within their terms who is not clearly within them, nor should any act be pronounced criminal which is not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246)

G. The filing of these Petitions was unnecessary because the People could have availed itself of other available remedies below. Pertinent provisions of the Rules of Court follow: Rule 117, Section 7. Effect of sustaining the motion to quash. — If the motion to quash is sustained the court may order that another information be filed. If such order is made the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made another information is not filed withuntime to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless he is in custody on some other charge.

The rule that penal statutes are given a strict construction is not the only factor controlling the interpretation of such laws, instead, the rule merely serves as an additional, single factor to be considered as an aid in determining the meaning of penal laws. (People v. Manantan, 5 SCRA 684, 692) F. The Informations filed by petitioner are fatally defective. The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order that the latter may constitute a sufficiently valid charged. The sufficiency of an Information is determined solely by the facts alleged therein. 13 Where the facts are incomplete and do not convey the elements of the crime, the quashing of the accusation is in order.

Rule 110, Section 13. Amendment. — The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the complaint or information when the facts charged do not constitute an offense. In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that the judgment was rendered knowing it to be unjust, is fatal. 14 In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief Justice of the Court affirmed an order of the trial court which quashed an

xxx xxx xxx Two courses of action were open to Petitioner upon the quashing of the Informations in these cases, viz: First, if the evidence on hand so warranted, the People could have filed an amended Information to include the second element of the offense as defined in the disputed

orders of respondent Judges. We have ruled that if the facts alleged in the Information do not constitute a punishable offense, the case should not be dismissed but the prosecution should be given an opportunity to amend the Information. 16 Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No. 3928, especially since in most if not all of the cases, the dismissal was made prior to arraignment of the accused and on a motion to quash. Section 8. Rule 117 states that: An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 2, subsections (f) and (h) of this rule. Under the foregoing, the filing of another complaint or Information is barred only when the criminal action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for reasons of double jeopardy. (ibid., [h]) As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all these cases should new complaints be filed against them, is a matter We need not resolve for the present. H. — We conclude with high expectations that police authorities and the prosecuting arm of the government true to the oath of office they have taken will exercise utmost circumspection and good faith in evaluating the particular circumstances of a case so as to reach a fair and just conclusion if a situation falls within the purview of P.D. 9(3) and the prosecution under said decree is warranted and justified. This obligation becomes a sacred duty in the face of the severe penalty imposed for the offense. On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City Fiscal of Manila

on October 15, 1975, written for the Secretary, now Minister of Justice, where he stated the following: In any case, please study well each and every case of this nature so that persons accused of carrying bladed weapons, specially those whose purpose is not to subvert the duly constituted authorities, may not be unduly indicted for the serious offenses falling under P.D. No. 9. 17 Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is however a judicial task and prerogative to determine if official action is within the spirit and letter of the law and if basic fundamental rights of an individual guaranteed by the Constitution are not violated in the process of its implementation. We have to face the fact that it is an unwise and unjust application of a law, necessary and justified under prevailing circumstances, which renders the measure an instrument of oppression and evil and leads the citizenry to lose their faith in their government. WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent Judges dismissing or quashing the Information concerned, subject however to Our observations made in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner herein to file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new one under other existing statute or city ordinance as the facts may warrant.

I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance.

Separate Opinions

1 p. 118, rollo of L-42050-66.

BARREDO, J., concurring. I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs. CONCEPCION, JR., J, concurring: I concur with the additional observation that accused could properly be convicted of a violation of Act 1780 of the Philippine Commission or of the ordinance.

Separate Opinions BARREDO, J., concurring.

Without costs. SO ORDERED. Fernando, Teehankee, Santos, Fernandez and Guerrero, JJ., concur.

I concur with the qualification that under existing jurisprudence conviction is possible, without the need of amending the information, for violation of other laws or ordinances on concealment of deadly weapons. Makasiar, J, concurs.

Castro, C.J. and Antonio, J, concur in the result. CONCEPCION, JR., J, concurring: Aquino, J, took no part.

Footnotes

2 pp. 10-11, brief of Petitioner at p. 218, Ibid. 3 Art. IV, Sec. 19, 1973 Constitution. 4 Francisco on the Revised Rules of Court, 1969 Ed., Vol. on Criminal Procedure, p. 86. 5 pp. 33-34 brief of Petitioner filed by the City Fiscal of Manila. 6 Valera v. Tuason, Jr., et al., 80 Phil. 823, citing U.S. v. Palacio, 33 Phil. 208; Quisumbing v. Lachica, 2 SCRA 182; Almeda v. Florentino, 15 SCRA 514; Lechoco v. Civil Aeronautics Board, 43 SCRA 670. 7 People v. Elkanish, 1951, 90 Phil. 53, 57 People v. Yadao, 1954, 94 Phil. 726, 728. 8 33 SCRA 105. See also 73 Am Jur 2d 351 citing United States v. N.E. Rosenblum Truck Lines, Inc., 315 US 50,86 L Ed 671; United States v. Stone & Downer Co., 274 US 225, 71 L Ed 1013; Ebert v. Poston, 266 US 548, 69 L Ed 435; Wisconsin C.R. Co. v. Forsythe, 159 US 46,40 L Ed 71. 9 13 SCRA 449, 453; Emphasis supplied.

9-a 73 Am Jur 2d 428. 10 See 73 Am Jur 2d 432-433 for cases on the foregoing undesirable consequences. 11 United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v. Commonwealth, 109 Va 821, 63 SE 1080, all cited in 73 Am Jur 2d 452. 12 State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184. 13 People v. Supnad, 7 SCRA 603, 606. 14 28 Phil. See Moran, Comments on the Rules of Court, 1970 Ed., Vol. 4, p. 222. 15 94 Phil. 726. 16 People v. Plaza, 7 SCRA 617. 17 This letter which was addressed to the City Fiscal of Manila referred to a decision of the Court of First Instance of Manila, Branch III, in Criminal Case No. 21178, "People vs. Conrado C. Petate, "for violation of Presidential Decree No. 9.

[G.R. No. 117254. January 21, 1999]

COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. COURT OF APPEALS, COURT OF TAX APPEALS, and BANK OF THE PHILIPPINE ISLANDS as LIQUIDATOR OF PARAMOUNT ACCEPTANCE CORPORATION, respondents.

After deducting Paramount’s total quarterly income tax payments of P1,218,940.00 from its income tax of P1,153,681.00, the return showed a refundable amount of P65,259.00. The appropriate box in the return was marked with a cross (x) indicating “To be refunded” the amount of P65,259.00.

DECISION MENDOZA, J.: This is a petition for review on certiorari of the decision, dated September 19, 1994, of the Court of Appeals affirming the decision of the Court of Tax Appeals which ordered petitioner to refund P65,259.00 as overpaid income tax. The facts are stated in the following portion of the decision of the CTA which the Court of Appeals quoted with approval: Petitioner, Bank of the Philippine Islands (BPI for short) is a bank and trust corporation duly organized and existing under Philippine laws. It acts as the liquidator of Paramount Acceptance Corporation after its dissolution on March 31, 1986. On April 2, 1986, Paramount Acceptance Corporation (Paramount for brevity) filed its Corporate Annual Income Tax Return, for calendar year ending December 31, 1985, declaring a Net Income of P3,324,802.00 (Exh. A). The income tax due thereon is P1,153,681.00. However, Paramount paid the BIR its quarterly income tax, to wit: Qtr. unt 1st 85 2nd 85 3rd 85

CR/ROR Exh.

Date

6817293 5-30DBP P308,779.00 5613316 8-29DBP 626,000.00 77204711 1-29DBP 284,161.00

Bank

C

n April 14, 1988, petitioner BPI, as liquidator of Paramount, through counsel filed a letter dated April 12, 1988 reiterating its claim for refund of P65,259.00 as overpaid income tax for the calendar year 1985. The following day or on April 15, 1988, BPI filed the instant petition with this Court in order to toll the running of the prescriptive period for filing a claim for refund of overpaid income taxes. The question is whether the two-year period of prescription for filing a claim for refund, as provided in §230 of the National Internal Revenue Code, is to be counted from April 2, 1986 when the corporate income tax return was actually filed or from April 15, 1986 when, according to §70(b) of the NIRC, the final adjustment return could still be filed without incurring any penalty. The aforesaid §230 of the NIRC[1] provides that such period must be counted “from the date of payment of the tax.” But, given the facts as stated above, when was the corporate income tax paid in this case? The Court of Tax Appeals rendered a decision considering the two-year period of prescription to have commenced to run from April 15, 1986, the last day for filing the corporate income tax return, and, since the claim for refund was filed on April 14, 1988 and the action was brought on April 15, 1988, it held that prescription had not set in. Accordingly, the CTA ordered as follows:

Amo WHEREFORE, the respondent [petitioner herein] is hereby ordered to REFUND in favor of petitioner, the sum of P65,259.00, representing overpaid income tax of Paramount Acceptance Corporation for the calendar year 1985.

C-1 No pronouncement as to costs. C-2 TOTAL P1,218,940.00

SO ORDERED.[2]

On appeal, its decision was affirmed by the Court of Appeals. Said the appellate court:[3] We agree with the respondent court’s ruling that the date of payment of the tax as prescribed under the Tax Code is the date when the corporate income tax return is required to be filed. . . . The Supreme Court has laid down the rule regarding the computation of the prescriptive period that the two-year period should be computed from the time of filing of the Adjustment Returns or Annual Income Tax Return and final payment of income tax; it is only when the Adjustment Return covering the whole year is filed that the taxpayer would know whether a tax is still due or a refund can be claimed based on the adjusted and audited figures (Commissioner of Internal Revenue vs. TMX Sales Inc., 205 SCRA 184). The two-year prescriptive period within which to claim a refund commences to run, at the earliest, on the date of the filing of the adjusted final tax return (Commissioner of Internal Revenue vs. Asia Australia Express Ltd., G.R. No. 85956). The “date of payment” from which to reckon the two-year period, in the case of a corporation whose taxable year is on a calendar basis, is the 15th day of the fourth month (April 15th) following the close of the fiscal year, and the filing of the final adjustment return on April 15th, following the close of the preceding taxable year, is such “date of payment” (ACCRA Investments Corp. vs. Court of Appeals, 204 SCRA 957). In this case, BPI filed its final adjustment return on April 2, 1986. No taxes were paid then because the returns showed that the quarterly taxes already paid exceeded the income tax due by P65,259.00. As correctly put by BPI, it is only on April 15 that the previous year’s income tax becomes due and payable and the taxpayer is still free to make amendments or adjustments on its return, without penalty, until April 15, 1986 (See Section 80, N.I.R.C.). Thus the final payment of income tax should be deemed to be on April 15, 1986, when the previous year’s income tax became due and payable and when the quarterly corporate income taxes may be considered paid. Accordingly the administrative claim and court proceeding for tax refund were timely filed.

Petitioner disagrees with the foregoing decision of the Court of Appeals. He contends that the two-year prescriptive period should be computed from April 2, 1984, when the final adjustment return was actually filed, because that is the time of payment of the tax within the meaning of §230 of the NIRC. We agree. The conclusions reached by the appellate court are contrary to the very rulings cited by it. In Commissioner of Internal Revenue v. TMX Sales, Inc.,[4] this Court, in rejecting the contention that the period of prescription should be counted from the date of payment of the quarterly tax, held: . . . [T]he filing of a quarterly income tax return required in Section 85 [now Section 68] and implemented per BIR Form 1702-Q and payment of quarterly income tax should only be considered mere installments of the annual tax due. These quarterly tax payments which are computed based on the cumulative figures of gross receipts and deductions in order to arrive at a net taxable income, should be treated as advances or portions of the annual income tax due, to be adjusted at the end of the calendar or fiscal year. This is reinforced by Section 87 [now Section 69] which provides for the filing of adjustment returns and final payment of income tax. Consequently, the two-year prescriptive period provided in Section 292 [now Section 230 of the Tax Code] should be computed from the time of filing the Adjustment Return or Annual Income Tax Return and final payment of income tax. On the other hand, in ACCRA Investments Corporation v. Court of Appeals,[5] where the question was whether the two-year period of prescription should be reckoned from the end of the taxable year (in that case December 31, 1981), we explained why the period should be counted from the filing of the final adjustment return, thus:[6] Clearly, there is the need to file a return first before a claim for refund can prosper inasmuch as the respondent Commissioner by his own rules and regulations mandates that the corporate taxpayer opting to ask for a refund must show in its final adjustment return the income it received from all sources and the amount of withholding taxes

remitted by its withholding agents to the Bureau of Internal Revenue. The petitioner corporation filed its final adjustment return for its 1981 taxable year on April 15, 1982. In our Resolution dated April 10, 1989 in the case of Commissioner of Internal Revenue v. Asia Australia Express, Ltd. (G.R. No. 85956), we ruled that the two-year prescriptive period within which to claim a refund commences to run, at the earliest, on the date of the filing of the adjusted final tax return. Hence, the petitioner corporation had until April 15, 1984 within which to file its claim for refund. .... It bears emphasis at this point that the rationale in computing the two-year prescriptive period with respect to the petitioner corporation’s claim for refund from the time it filed its final adjustment return is the fact that it was only then that ACCRAIN could ascertain whether it made profits or incurred losses in its business operations. The “date of payment”, therefore, in ACCRAIN’s case was when its tax liability, if any, fell due upon its filing of its final adjustment return on April 15, 1982. Finally, in Commissioner of Internal Revenue v. Philippine American Life Insurance Co.,[7] we held: Clearly, the prescriptive period of two years should commence to run only from the time that the refund is ascertained, which can only be determined after a final adjustment return is accomplished. In the present case, this date is April 16, 1984, and two years from this date would be April 16, 1986. The record shows that the claim for refund was filed on December 10, 1985 and the petition for review was brought before the CTA on January 2, 1986. Both dates are within the two-year reglementary period. Private respondent being a corporation, Section 292 [now Section 230] cannot serve as the sole basis for determining the two-year prescriptive period for refunds. As we have earlier stated in the TMX Sales case, Sections 68, 69, and 70 on Quarterly Corporate Income Tax Payment and Section 321 should be construed in conjunction with it. Sec. 49(a) of the NIRC provides that

§49. Payment and assessment individuals and corporations.

of income tax for

(a) Payment of tax (1) In general. The total amount of tax imposed by this Title shall be paid by the person subject thereto at the time the return is filed. . . . On the other hand, §70(b) of the same Code provides that §70 (b) Time of filing the income return The corporate quarterly declaration shall be filed within sixty (60) days following the close of each of the first three quarters of the taxable year. The final adjustment return shall be filed on or before the 15th day of the 4th month following the close of the fiscal year, as the case may be. Thus, it can be deduced from the foregoing that, in the context of §230, which provides for a two-year period of prescription counted “from the date of payment of the tax” for actions for refund of corporate income tax, the twoyear period should be computed from the time of actual filing of the Adjustment Return or Annual Income Tax Return. This is so because at that point, it can already be determined whether there has been an overpayment by the taxpayer. Moreover, under §49(a) of the NIRC, payment is made at the time the return is filed. In the case at bar, Paramount filed its corporate annual income tax return on April 2, 1986. However, private respondent BPI, as liquidator of Paramount, filed a written claim for refund only on April 14, 1988 and a petition for refund only on April 15, 1988. Both claim and action for refund were thus barred by prescription. The foregoing conclusion makes it unnecessary for us to pass on the other issues raised in this case by petitioner. WHEREFORE, the decision of the Court of Appeals is REVERSED and the petition for refund filed by private respondent is DISMISSED on the ground that it is barred by prescription.

G.R. No. L-21734 September 5, 1975

[1]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO SUBlDO, defendant-appellant.

This provision reads in part as follows:

SEC. 230. Recovery of tax erroneously or illegally collected. - No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. In any case, no such suit or proceeding shall be begun after the expiration of two years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment: Provided, however, That the Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid. . . . [2]

Rollo, p. 55.

[3]

Id., pp. 36-37.

[4]

205 SCRA 184, 192 (1992) (emphasis added).

[5]

204 SCRA 957 (1991) (emphasis added).

[6]

Id., at 963-964 (emphasis added).

[7]

244 SCRA 446, 453 (1995) (emphasis added).

Republic SUPREME Manila FIRST DIVISION

of

the

Philippines COURT

Office of the Solicitor General Edilberto Barot and Solicitor Ceferino Padua for plaintiff-appellee. Estanislao A. Fernandez for defendant-appellant.

MARTIN, J.: Appeal on questions of law from the Orders of the Court of First Instance of Manila in Criminal Case No. 23041, entitled People of the Philippines versus Abelardo Subido, denying defendant-appellant's motion for the cancellation of his appeal bond and declaring him to suffer subsidiary imprisonment in case of failure to pay the fine and indemnity. From an adverse decision in said case, the dispositive portion of which reads: From the facts above stated the Court finds the accused guilty of libel and he is hereby sentenced to three (3) months of arresto mayor with the accessory penalties of the law, to pay a fine of five hundred (P500.00) pesos, to indemnify the offended party, Mayor Arsenio Lacson in the sum of ten thousand (P10,000.00) pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs. defendant-appellant Abelardo Subido has taken an appeal to the Court of Appeals, which modified the said judgment in the following tenor:

SO ORDERED. Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.

Puno,

However, in the application of the penalty provided for the violation of

the libel law, the courts are given discretion of whether or not both fine and imprisonment are to be imposed upon the offender. In the instant case, we believe, considering the attendant circumstances of the case that the imposition of the corresponding penalty should be tempered with judicial discretion. For this reason, we impose upon accused-appellant a fine of P500.00.

situated at No. 2313 Suter, Sta. Ana, Manila, covered by Transfer Certificate of Title No. 54170 of the Register of Deeds of Manila. However, it turned out that the property levied upon be the sheriff was registered in the name of Agapito Subido who, upon learning of the levy, immediately filed a Third party claim with the sheriff's office and instituted an action in the lower court (Civil Case No. 41731) to enjoin the Sheriff of Manila from proceeding with the sale of his property. In the meantime the lower court issued a writ of preliminary injunction enjoining the sale of property levied upon by the sheriff.

Similarly, the amount of the indemnity to be paid by appellant to the offended party is reduced to P5,000.00.

On December 10, 1959, the offended party registered its opposition to accused-appellant's motion for cancellation of appeal bond and asked the lower court to require accused-appellant to pay the fine of P500.00 and the indemnity of P5,000.00 with subsidiary imprisonment in case of insolvency.

WHEREFORE, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's costs. In due time the case was remanded to the trial court for execution of the judgment. On September 27, 1958, the accused-appellant filed a motion with the trial court praying that (1) the court enter of record that the judgment of the Court of Appeals has been promulgated and (2) that his appeal bond be cancelled. Accused-appellant argued that although he could not pay the fine and the indemnity prescribed in the judgment of the Court of Appeals, he could not be required to serve the amount of fine and indemnity in the form of subsidiary imprisonment because said judgment did not expressly and specifically provide that he should serve the fine and indemnity in form of subsidiary imprisonment in case of insolvency.

On December 19, 1959, the lower court issued an order denying the accused-appellant's motion and declared that in accordance with the terms of the judgment of the Court of Appeals the accused-appellant has to suffer subsidiary imprisonment in case he could not pay the fine and indemnity prescribed in the decision. Accused-appellant moved for reconsideration, but the same was denied on December 26, 1959. Hence this appeal from the lower court's orders of December 19 and 26. In his appeal, accused-appellant presses that the lower court erred I IN HOLDING THAT UNDER THE TERMS OF THE DECISION OF THE COURT OF APPEALS ACCUSEDAPPELLANT IS LIABLE TO SUBSIDIARY IMPRISONMENT IN CASE OF INSOLVENCY.

On December 20, 1958, upon motion of the offended party the lower court issued a writ of execution of its judgment. However, the writ was returned unsatisfied. On February 25, 1959, the Sheriff of the City of Manila, armed with an alias writ of execution, attached "whatever rights, interests, or participation, if any, defendant Abelardo Subido may have" in a two-storey building

II

IN NOT HOLDING THAT THE CIVIL LIABILITY OF ACCUSEDAPPELLANT HAS BEEN SATISFIED WITH THE ATTACHMENT SECURED BY THE OFFENDED PARTY. 1 The threshold issue in this appeal is whether or not the accused-appellant can be required to serve the fine and indemnity prescribed in the judgment of the Court of Appeals in form of subsidiary imprisonment in case of insolvency. Under Article 355 of the Revised Penal Code "a libel committed by means of writing, printing, litography, engraving, radio, phonograph, paintings, theatrical exhibition, cinematographic exhibition or any similar means, shall be punished by prision correccional in its minimum and medium period or a fine ranging from 200 to 6000 pesos or both, in addition to the civil action which may be brought by the offended party". It is evident from the foregoing provision that the court is given the discretion to impose the penalty of imprisonment or fine or both for the crime of libel. It will be noted that the lower court chose to impose upon the accused: three months ofarresto mayor; a fine of P500.00; indemnification of the offended party in the sum of P10,000.00; subsidiary imprisonment in case of insolvency; and the payment of the costs. On the other hand, the Court of Appeals in the exercise of its discretion decided to eliminate the penalty of three (3) months arresto mayor and to reduce the indemnity of P10,000.00 to P5,000.00. Thus the Court of Appeals resolved: However, in the application of the penalty provided for in the violation of the libel law, the courts are given discretion of whether or not both fine and imprisonment are to be imposed upon the offender. In the instant case, we believe, considering the attendant circumstances of the same, that the imposition of the corresponding penalty should be tempered with judicial discretion. For this reason we impose the accused a fine of P500.00.

Similarly, the amount of the indemnity to be paid by appellant to the offended party is reduced to P5,000.00. WHEREUPON, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's cost. To Us it is clear that when the Court of Appeals provided in the concluding portion of its decision: WHEREUPON, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's costs the alluded modifications could mean no less than the elimination of the three months of arresto mayor and the reduction of the indemnity to the offended party, Mayor Arsenio Lacson, from P10,000.00 to P5,000.00. All the rest of the punishment remains including the subsidiary imprisonment in case of insolvency. Had the Court wanted to do away with the subsidiary imprisonment in case of insolvency of accused-appellant to pay the fine and the indemnity it would have so expressly provided. A careful scrutiny of the decision of the trial court reveals that the clause "with subsidiary imprisonment in case of insolvency" is separated by a comma (,) from the preceding clause" is hereby sentenced to three months ofarresto mayor with the accessory penalties of the law, to pay a fine of five hundred (P500.00) pesos, to indemnify the offended party, Mayor Arsenio Lacson, in the sum of Ten Thousand Pesos (P10,000.00) pesos." The use of a comma (,) in the part of the sentence is to make "the subsidiary imprisonment in case of insolvency" refer not only to non-payment of the indemnity, but also to nonpayment of the fine. If the lower court intended to make the phrase "with subsidiary imprisonment in case of insolvency" refer to non-payment of indemnity only and not to the nonpayment of the fine, it would have omitted the comma (,), after the phrase "to indemnify the offended party, Mayor

Arsenio Lacson in the amount of P10,000.00 pesos," so that the decision of the lower court would read: From the facts above stated the Court finds the accused guilty of libel and he is hereby sentenced to three (3) months of arresto mayor, to pay a fine of five hundred (P500.00) pesos, to indemnify the offended party, Mayor Arsenio Lacson, in the sum of ten thousand (P10,000.00) pesos with subsidiary imprisonment in case of insolvency, and to pay the costs. As thus worded and punctuated there would be no doubt that the lower court would want to make accused-appellant serve the subsidiary imprisonment in case of non-payment of the indemnity only. Besides, We see no plausible reason why the lower court would want accused-appellant to suffer subsidiary imprisonment in case of insolvency to pay the indemnity only and not to suffer subsidiary imprisonment in case of non-payment of the fine. Accordingly if according to the lower court's decision, the accused-appellant should suffer subsidiary imprisonment in case of insolvency to pay the fine and the indemnity and the only modifications made by the Court of Appeals are to eliminate the three (3) months of arresto mayor and to reduce the indemnity to the offended party, Mayor Arsenio Lacson, from P10,000.00 to P5,000.00, then by force of logic and reason, the fine of P5000.00, the reduced indemnity of P5,000.00 and the subsidiary imprisonment in case of insolvency should stand. Fortunately, however, accused-appellant is favored by the retroactive force of Article 39 of the Revised Penal Code, as amended by Republic Act No. 5465 which exempts an accused person from subsidiary imprisonment in case of insolvency to pay his civil liability. 2 It is a well known rule of legal hermeneutics that penal statutes are to be strictly construed against the government and liberally in favor of the accused. 3 In the interpretation of a penal statute, the tendency is to give it careful scrutiny, and to construe it with such strictness as

to safeguard the rights of the defendant. 4 Considering that Article 39 of the Revised Penal Code, as amended, is favorable to the accused-appellant, the same should be made applicable to him. It is so provided in Article 22 of the Revised Penal Code that: Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving sentence. Thus applying Article 39 of the Revised Penal Code, as amended, to the accused-appellant, he cannot also be required to serve his civil liability to the offended party in form of subsidiary imprisonment in case of insolvency because this is no longer required by the aforesaid article. Accused-appellant contends that he cannot be made to suffer subsidiary imprisonment because his civil liability has been satisfied with the attachment secured by the offended party on the property of Agapito Subido, wherein he is supposed to have an interest. He therefore argues that until the final determinations of Civil Case No. 71731 which Agapito Subido filed to enjoin the Sheriff of Manila from proceeding with the sale of his property, accusedappellant's liability for subsidiary imprisonment cannot attach as the determination of whether the accused is solvent or not is a prejudicial question which must first be determined before subsidiary imprisonment may be imposed. We cannot agree. Attachment does not operate as a satisfaction of the judgment on civil liability and the accused must suffer subsidiary imprisonment in case of non-payment thereof. Subsidiary imprisonment applies when the offender is insolvent as shown in the present case. There is nothing in the law that before subsidiary imprisonment may attach, there must be prior determination of the question of solvency of the accused. The moment he cannot pay the fine, that means he is insolvent and he must serve the same in form of subsidiary

imprisonment. So accused-appellant has to choose to pay the fine or serve in jail. IN VIEW OF THE FOREGOING except with the modification that accused-appellant may no longer be required to suffer subsidiary imprisonment in case of insolvency to pay the indemnity provided for in the judgment below, the Orders of the lower court dated December 19 and 26, 1959 denying defendant-appellant's motion for cancellation of appeal bond and sentencing him to suffer the subsidiary imprisonment in case of insolvency to pay the fine imposed by said judgment, are hereby affirmed. SO ORDERED. Castro, (Chairman), Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ., concur.

Footnotes 1 As the errors assigned involved purely questions of law, the honorable court of Appeals certified the case to Us, pursuant to Section 17, par. 16, in relation to Section 31 of the Judiciary Act of 1948. 2 Art. 39. Subsidiary penalty.-If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 1. If the principal penalty imposed be prision correccional or arresto and fine,

he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner.

4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him from the fine in case his financial circumstances should improve.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3. When the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be imposed upon the culprit.

3 U.S. vs. Abad Santos, 36 Phil. 243; People vs. Yu Hai, 99 Phil. 728. 4 People vs. Ahearn, 196 N.Y. 221, 89 NE 930, 26 LRA (NS) 1153. Republic SUPREME Manila EN BANC

of

the

Philippines COURT

G.R. No. L-25326 May 29, 1970 IGMIDIO HIDALGO and MARTINA ROSALES, petitioners, vs. POLICARPIO HIDALGO, SERGIO DIMAANO, MARIA ARDE, SATURNINO HIDALGO, BERNARDINA MARQUEZ, VICENTE DIMAANO, ARCADIA DIMAANO, TEODULA DIMAANO, THE REGISTER OF DEEDS and THE PROVINCIAL ASSESSOR OF THE PROVINCE OF BATANGAS, respondents. G.R. No. L-25327 May 29, 1970 HILARIO AGUILA and ADELA HIDALGO, petitioners, vs. POLICARPIO HIDALGO, SERGIO DIMAANO, MARIA ARDE, SATURNINO HIDALGO, BERNARDINA MARQUEZ, VICENTE DIMAANO, ARCADIA DIMAANO, TEODULA DIMAANO, THE REGISTER OF DEEDS and THE PROVINCIAL ASSESSOR OF THE PROVINCE OF BATANGAS, respondents. Jose O. Lara for petitioners. Pedro Panganiban y Tolentino for respondents.

TEEHANKEE, J.: Two petitions for review of decisions of the Court of Agrarian Relations dismissing petitioners' actions as sharetenants for the enforcerment of the right to redeem agricultural lands, under the provisions of section 12 of the Agricultural Land Reform Code. As the same issue of law is involved and the original landowner and vendees in both cases are the same, the two cases are herein jointly decided.

Respondent-vendor Policarpio Hidalgo was until the time of the execution of the deeds of sale on September 27, 1963 and March 2, 1964 in favor of his seven abovenamed private co-respondents, the owner of the 22,876square meter and 7,638-square meter agricultural parcels of land situated in Lumil, San Jose, Batangas, described in the decisions under review. In Case L-25326, respondent-vendor sold the 22,876square meter parcel of land, together with two other parcels of land for P4,000.00. Petitioners-spouses Igmidio Hidalgo and Martina Resales, as tenants thereof, alleging that the parcel worked by them as tenants is fairly worth P1,500.00, "taking into account the respective areas, productivities, accessibilities, and assessed values of three lots, seek by way of redemption the execution of a deed of sale for the same amount of P1,500.00 by respondentsvendees 1 in their favor. In Case L-25327, respondent-vendor sold the 7,638square meter parcel of land for P750.00, and petitionersspouses Hilario Aguila and Adela Hidalgo as tenants thereof, seek by way of redemption the execution of a deed of sale for the same price of P750.00 by respondents-vendees in their favor. As stated in the decisions under review, since the parties stipulated on the facts in both cases, petitioners-tenants have for several years been working on the lands as share tenants. No 90-day notice of intention to sell the lands for the exercise of the right of pre-emption prescribed by section 11 of the Agricultural Land Reform Code (Republic Act No. 3844, enacted on August 8, 1963) was given by respondent-vendor to petitioners-tenants. Subsequently, the deeds of sale executed by respondentvendor were registered by respondents register of deeds and provincial assessor of Batangas in the records of their respective offices notwithstanding the non-execution by respondent-vendor of the affidavit required by section 13 of the Land Reform Code. 2 The actions for redemption were timely filled on March 26, 1965 by petitioners-tenants within the two-year prescriptive period from registration of the sale, prescribed by section 12 of the said Code. The agrarian court rendered on July 19, 1965 two identical decisions dismissing the petitions for redemption.

It correctly focused on the sole issue of law as follows: "(T)he only issue in this case is whether or not plaintiffs, asshare tenants, are entitled to redeem the parcel of land they are working from the purchasers thereof, where no notice was previously given to them by the vendor, who was their landholder, of the latter's intention to sell the property and where the vendor did not execute the affidavit required by Sec. 13 of Republic Act No. 3844 before the registration of the deed of sale. In other words, is the right of redemption granted by Sec. 12 of Republic Act No. 3844 applicable to share tenants?" But proceeding from several erroneous assumptions and premises, it arrived at its erroneous conclusion that the right of redemption granted by section 12 of the Land Reform Code is available to leasehold tenants only but not to share tenants, and thus dismissed the petitions: "(S)ec 12 of Republic Act No. 3844, which comes under Chapter I of said Act, under the heading 'Agricultural Leasehold System,' reads as follows: 'SEC. 12. Lessee's Right of Redemption. — In case the landholding is sold to a third person without the knowledge of the agricultural lessee, the latter shall have the right to redeem the same at a reasonable price and consideration: Provided: further, That where there are two or more agricultural lessees, each shall be entitled to said right of redemption only to the extent of the area actually cultivated by him. The right of redemption under this Section may be exercised within two years from the registration of the sale, and shall have priority over any other right of legal redemption.' The systems of agricultural tenancy recognized in this jurisdiction are share tenancy and leaseholdtenancy. (Sec. 4, Republic Act No. 1199; Sec. 4, Republic Act No. 3844). A share tenant is altogether different

from a leasehold tenant and their respective rights and obligations are not co-extensive or co-equal. (See Secs. 22 to 41, inclusive, and Secs. 42 to 48, inclusive, of Republic Act No. 1199; see also Secs. 4 to 38, inclusive, of Republic Act No. 3844). It is our considered view that the right of redemption granted by Section 12 of Republic Act No. 3844 is applicable to leasehold tenants only, but not to share tenants, because said provision of law clearly, definitely, and unequivocally grants said right to the 'agricultural lessee,' and to nobody else. In enacting the Agricultural Land Reform Code, Congress was fully aware of the existence of sharetenancy and in fact provided for the abolition of the agricultural share tenancy system. (Sec. 4, Republic Act No. 3844.) If it were the intention of Congress to grant the right of redemption to sharetenants, it would have unmistakably and unequivocally done so. We cannot extend said right to sharetenants through judicial legislation, wherever our sympathies may lie. The agrarian court fell into several erroneous assumptions and premises in holding that agricultural share tenancy remains recognized in this jurisdiction; that "a share tenant is altogether different from a leasehold tenant and their respective rights and obligations are not co-extensive or co-equal"; and that the right of redemption granted by section 12 of the Land Reform Code" is applicable to leasehold tenants only, but not to share tenants, because said provision of law clearly, definitely, and unequivocally grants said right to the 'agricultural lessee,' and to nobody else." 1. The very essence of the Agricultural Land Reform Code is the abolition of agricultural share tenancy as proclaimed in its title. Section 4 of the Code expressly outlaws

agricultural share tenancy as "contrary to public policy" and decrees its abolition. 3 Section 2 of the Code expressly declares it to be the policy of the State, inter alia, "to establish owner cultivatorship and the economic familysize farm as the basis of Philippine agriculture and, as a consequence, divert landlord capital in agriculture to industrial development; to achieve a dignified existence for the small farmers free from pernicious institutional restraints and practices; ... and to make the small farmersmore independent, self-reliant and responsible citizens, and a source of strength in our democratic society." 4 It was error, therefore, for the agrarian court to state the premise after the Land Reform Code had already been enacted, that "the systems of agricultural tenancy recognized in this jurisdiction are share tenancy and leasehold tenancy." A more accurate statement of the premise is that based on the transitory provision in the first proviso of section 4 of the Code, i.e. that existing share tenancy contracts are allowed to continue temporarily in force and effect, notwithstanding their express abolition, until whichever of the following events occurs earlier: (a) the end of the agricultural year when the National Land Reform Council makes the proclamation declaring the region or locality a land reform area; or (b) the shorter period provided in the share tenancy contracts expires; or (c) the share tenant sooner exercises his option to elect the leasehold system. In anticipation of the expiration of share tenancy contracts — whether by contractual stipulation or the tenant's exercise of his option to elect the leasehold system instead or by virtue of their nullity — occuring before the proclamation of the locality as a land reform area, the same section 4 has further declared in the third proviso thereof that in such event, the tenant shall continue in possession of the land for cultivation and "there shall be presumed to exist a leasehold relationship under the provisions of this Code." 2. The foregoing exposes the error of the agrarian court's corollary premise that "a share tenant is altogether different from a leasehold tenant." The agrarian court's dictum that "their respective rights and obligations are not co-extensive or co-equal "refer to their contractual relations with the landowner, with respect to the contributions given, management, division or payment of the produce. 5

But the Land Reform Code forges by operation of law, between the landowner and the farmer — be a leaseholdtenant or temporarily a share tenant — a vinculum juris with certain vital juridical consequences, such as security of tenure of the tenant and the tenant's right to continue in possession of the land he works despite the expiration of the contract or the sale or transfer of the land to third persons, and now, more basically, the farmer's pre-emptive right to buy the land he cultivates under section 11 of the Code 6 as well as the right to redeem the land, if sold to a third person without his knowledge, under section 12 of the Code. This is an essential and indispensable mandate of the Code to implement the state's policy of establishing ownercultivatorship and to achieve a dignified and self-reliant existence for the small farmers that would make them a pillar of strength of our Republic. Aside from expropriation by the Land Authority of private agricultural land for resale in economic family-size farm units "to bona fide tenants, occupants and qualified farmers," 7 the purchase by farmers of the lands cultivated by them, when the owner decides to sell the same — through rights of pre-emption and redemption — are the only means prescribed by the Code to achieve the declared policy of the State. 3. The agrarian court therefore facilely let itself fall into the error of concluding that the right of redemption (as well as necessarily the right of pre-emption) imposed by the Code is available to leasehold tenants only and excludesshare tenants for the literal reason that the Code grants said rights only to the "agricultural lessee and to nobody else." For one, it immediately comes to mind that the Code did not mention tenants, whether leasehold or sharetenants, because it outlaws share tenancy and envisions the agricultural leasehold system as its replacement. Thus, Chapter I of the Code, comprising sections 4 to 38, extensively deals with the establishment of "agriculturalleasehold relation," defines the parties thereto and the rights and obligations of the "agricultural lessor" and of the "agricultural lessee" (without the slightest mention of leasehold tenants) and the statutory consideration or rental for the leasehold to be paid by the lessee. There is a studied omission in the Code of the use of the term tenant in deference to the "abolition of tenancy" as proclaimed in the very title of the Code, and the elevation of the tenant's status to that of lessee.

Then, the terms "agricultural lessor" and "agricultural lessee" are consistently used throughout the Chapter and carried over the particular sections (11 and 12) on preemption and redemption. The agrarian court's literal construction would wreak havoc on and defeat the proclaimed and announced legislative intent and policy of the State of establishing owner-cultivatorship for the farmers, who invariably were all share tenants before the enactment of the Code and whom the Code would now uplift to the status of lessees. A graphic instance of this fallacy would be found in section 11 providing that "In case the agricultural lessordecides to sell the landholding the agricultural lessee shall have the preferential right to buy the same under reasonable terms and conditions." It will be seen that the term "agricultural lessor" is here used interchangeably with the term "landowner"; which conflicts with the Code's definition of "agricultural lessor" to mean "a person natural or juridical, who, either as owner, civil law lessee, usufructuary, or legal possessor, lets or grants to another the cultivation and use of his land for a price certains." 8 Obviously, the Code precisely referred to the "agricultural lessor (who) decides to sell the landholding," when it could have more precisely referred to the "landowner," who alone as such, rather than a civil law lessee, usufructuary or legal possessor, could sell the landholding, but it certainly cannot be logically contended that the imprecision should defeat the clear spirit and intent of the provision. 4. We have, here, then a case of where the true intent of the law is clear that calls for the application of the cardinal rule of statutory construction that such intent or spirit must prevail over the letter thereof, for whatever is within the spirit of a statute is within the statute, since adherence to the letter would result in absurdity, injustice and contradictions and would defeat the plain and vital purpose of the statute. Section 11 of the Code providing for the "agricultural lessee's" preferential right to buy the land he cultivates provides expressly that "the entire landholding offered for sale must be pre-empted by the Land Authority if the landowner so desires, unless the majority of the lessees object to such acquisition," presumably for being beyond their capabilities. Taken together with the provisions of Chapter III of the Code on the organization and functions

of the Land Authority and Chapter VII on the Land Project Administration and the creation and functions of the National Land Reform Council, (in which chapters the legislature obviously was not laboring under the inhibition of referring to the term tenants as it was in Chapter I establishing the agricultural leasehold system and decreeing the abolition of share tenancy, 9 the Code's intent, policy and objective to give both agricultural lessees and farmers who transitionally continue to be share tenants notwithstanding the Code's enactment, the same priority and preferential rights over the lands under their cultivation, in the event of acquisition of the lands, by expropriation or voluntary sale, for distribution or resale that may be initiated by the Land Authority or the National Land Reform Council, are clearly and expressly stated. Thus Chapter III, section 51 of the Code decrees it the responsibility of the Land Authority "(1) To initiate and prosecute expropriation proceedings for the acquisition of private agricultural lands as defined in Section one hundred sixty-six of chapter XI of this Code for the purpose of subdivision into economic family — size farm units and resale of said farm units to bona fide tenants, occupants and qualified farmers ... and "(2) To help bona fide farmers without lands of agricultural owner-cultivators of uneconomic-size farms to acquire and own economic family-size farm units ...." Similarly, Chapter VII, section 128 of the Code, in enjoining the National Land Reform Council to formulate the necessary rules and regulations to implement the Code's provisions for selection of agricultural land to be acquired and distributed and of the beneficiaries of the family farms, ordains the giving of the same priority "to the actual occupants personally cultivating the land either as agricultural lessees or otherwise with respect to the area under their cultivation." 5. It would certainly result in absurdity, contradictions and injustice if a share tenant would be denied the rights of pre-emption and redemption which he seeks to exercise on his own resources, notwithstanding that the National Land Reform Council has not yet proclaimed that all the government machineries and agencies in the region or locality envisioned in the Code are operating — which machineries and agencies, particularly, the Land Bank were precisely created "to finance the acquisition by the

Government of landed estates for division and resale to small landholders, as well as the purchase of the landholding by the agricultural lessee from the landowner." 10 The non-operation in the interval of the Land Bank and the government machineries and agencies in the region which are envisioned in the Code to assist the share tenant in shedding off the yoke of tenancy and afford him the financial assistance to exercise his option of electing the leasehold system and his preferential right of purchasing the land cultivated by him could not possibly have been intended by Congress to prevent the exercise of any of these vital rights by a share tenant who is able to do so, e.g. to purchase the land, on his own and without government assistance. It would be absurd and unjust that while the government is unable to render such assistance, the share tenant would be deemed deprived of the very rights granted him by the Code which he is in a position to exercise even without government assistance. 6. Herein lies the distinction between the present case and Basbas vs. Entena 11 where the Court upheld the agrarian court's dismissal of the therein tenant's action to redeem the landholding sold to a third party by virtue of the tenant's failure to tender payment or consign the purchase price of the property. There, the tenant-redemptioner was shown by the evidence to have no funds and had merely applied for them to the Land Authority which was not yet operating in the locality and hence, the Court held that no part of the Code "indicates or even hints that the 2-year redemption period will not commence to run (indefinitely) until the tenant obtains financing from the Land Bank, or stops the tenant from securing redemption funds from some other source." 12 In the present case, the petitionerstenants' possession of funds and compliance with the requirements of redemption are not questioned, the case having been submitted and decided on the sole legal issue of the right of redemption being available to them as share tenants. The clear and logical implication of Basbas is where the tenant has his own resources or secures redemption funds from sources other than the Land Bank or government agencies under the Code, the fact that the locality has not been proclaimed a land reform area and that such government machineries and agencies are not operating therein is of no relevance and cannot prejudice the tenant's rights under the Code to redeem the landholding.

7. Even from the landowner's practical and equitable viewpoint, the landowner is not prejudiced in the least by recognizing the share tenant's right of redemption. The landowner, having decided to sell his land, has gotten his price therefor from his vendees. (The same holds true in case of the tenant's exercise of the pre-emptive right by the tenant who is called upon to pay the landowner the price, if reasonable, within ninety days from the landowner's written notice.) As for the vendees, neither are they prejudiced for they will get back from the tenantredemptioner the price that they paid the vendor, if reasonable, since the Code grants the agricultural lessee or tenant the top priority of redemption of the landholding cultivated by him and expressly decrees that the same "shall have priority over any other right of legal redemption." In the absence of any provision in the Code as to manner of and amounts payable on redemption, the pertinent provisions of the Civil Code apply in a suppletory character. 13 Hence, the vendees would be entitled to receive from the redemptioners the amount of their purchase besides "(1) the expenses of the contract, and any other legitimate payments made by reason of the sale; (and) (2) the necessary and useful expenses made on the thing sold." 14 8. The historical background for the enactment of the Code's provisions on pre-emption and redemption further strengthens the Court's opinion. It is noted by Dean Montemayor 15 that "(T)his is a new right which has not been granted to tenants under the Agricultural Tenancy Act. It further bolsters the security of tenure of the agricultural lessee and further encourages agricultural lessees to become owner-cultivators. In the past, a landlord often ostensibly sold his land being cultivated by his tenant to another tenant, who in turn filed a petition for ejectment against the first tenant on the ground of personal cultivation. While many of such sales were simulated, there was a formal transfer of title in every case, and the first tenant was invariably ordered ejected. There is indication in this case of the same pattern of sale by the landowner to another tenant, 16 in order to effect the

ejectment of petitioners-tenants. This is further bolstered by the fact that the sales were executed by respondentvendor on September 27, 1963 and March 2, 1954 shortly after the enactment on August 8, 1963 of the Land Reform Code — which furnishes still another reason for upholding ... petitioners-tenants' right of redemption, for certainly a landowner cannot be permitted to defeat the Code's clear intent by precipitately disposing of his lands, even before the tenant has been given the time to exercise his newly granted option to elect the new agricultural leasehold system established by the Code as a replacement for the share tenancy outlawed by it. 9. Clearly then, the Code intended, as above discussed, to afford the farmers' who transitionally continued to be share tenants after its enactment but who inexorably would be agricultural lessees by virtue of the Code's proclaimed abolition of tenancy, the same priority and preferential right as those other share tenants, who upon the enactment of the Code or soon thereafter were earlier converted by fortuitous circumstance into agricultural lessees, to acquire the lands under their cultivation in the event of their voluntary sale by the owner or of their acquisition, by expropriation or otherwise, by the Land Authority. It then becomes the court's duty to enforce the intent and will of the Code, for "... (I)n fact, the spirit or intention of a statute prevails over the letter thereof.' (Tañada vs. Cuenco, L10520, Feb. 23, 1957, citing 82 C.J.S., p. 526.) A statute 'should be construed according to its spirit or intention, disregarding as far as necessary, the letter of the law.' (Lopez & Sons, Inc. vs. Court of Tax Appeals, 100 Phil. 855.) By this, we do not correct the act of the Legislature, but rather ... carry out and give due course to 'its intent.' (Lopez & Sons, Inc. vs. Court of Tax Appeals, 100 Phil. 850)." 17 The Court has consistently held in line with authoritative principles of statutory construction that, it will reject a narrow and literal interpretation, such as that given by the agrarian court, that would defeat and frustrate rather than foster and give life to the law's declared policy and intent. 18 Finally, under the established jurisprudence of the Court, in the interpretation of tenancy and labor legislation, it will be guided by more than just an inquiry into the letter of the law as against its spirit and will ultimately resolve grave doubts in favor of the tenant and worker. 19 The agrarian court's dismissal of the cases at bar should therefore be reversed and petitioners-tenants' right to

redeem the landholdings recognized section 12 of the Code. In Case L-25326, however, the deed of sale executed by respondent-vendor in favor of respondents-vendees for the price of P4,000.00 covers three parcels of land, while what is sought to be redeemed is only the first parcel of land of 22,876 square meters, described in the deed. Petitionerstenants' allegation that the proportionate worth of said parcel "taking into account the respective areas, productivities, accessibilities and assessed values of the three lots," is P1,500.00, was traversed by respondents in their answer, with the claim that "the said land is fairly worth P20,000.00. 20 While the vendor would be bound by, and cannot claim more than, the price stated in the deed, and the Code precisely provides that the farmer shall have "the preferential right to buy the (landholding) under reasonable terms and conditions" or "redeem the same at a reasonable price and consideration" 21 with a view to affording the farmer the right to seek judicial assistance and relief to fix such reasonable price and terms when the landowner places in the notice to sell or deed an excessive or exorbitant amount in collusion with the vendee, we note that in this case the deed of sale itself acknowledged that the selling price of P4,000.00 therein stated was not the fair price since an additional consideration therein stated was that the vendees would support the vendor during his lifetime and take care of him, should he fall ill, and even assumed the expenses of his burial upon his death: Ang halagang P4,000.00 ay hindi kaulat sa tunay na halaga ng mga lupa subalit ang mga bumili ay may katungkulan na sostentohin ako habang ako'y nabubuhay, ipaanyo at ipagamot ako kung ako ay may sakit, saka ipalibing ako kung ako ay mamatay sa kanilang gastos at ito ay isa sa alang-alang o consideracion ng bilihang ito. Under these circumstances, since the agrarian court did not rule upon conflicting claims of the parties as to what was the proportionate worth of the parcel of land in the stated price of P4,000.00 — whether P1,500.00 as claimed by petitioners or a little bit more, considering the

proportionate values of the two other parcels, but the whole total is not to exceed the stated price of P4,000.00, since the vendor is bound thereby — and likewise, what was the additional proportionate worth of the expenses assumed by the vendees, assuming that petitioners are not willing to assume the same obligation, the case should be remanded to the agrarian court solely for the purpose of determining the reasonable price and consideration to be paid by petitioners for redeeming the landholding, in accordance with these observations. In Case L-25327, there is no question as to the price of P750.00 paid by the vendees and no additional consideration or expenses, unlike in Case L-25326, supra, assumed by the vendees. Hence, petitioners therein are entitled to redeem the landholding for the same stated price. ACCORDINGLY, the decisions appealed from are hereby reversed, and the petitions to redeem the subject landholdings are granted. In Case L-25326, however, the case is remanded to the agrarian court solely for determining the reasonable price to be paid by petitioners therein to respondents-vendees for redemption of the landholding in accordance with the observations hereinabove made. No pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Barredo and Villamor, JJ., concur. Castro, J., is on leave.

Footnotes 1 Per answer of respondents and the parties' stipulation of facts, respondents-vendees Saturnino Hidalgo and Bernardina Marquez, together with petitioners-spouses Igmidio Hidalgo and Martina Resales in Case L-25326

and petitioners-spouses Hilario Aguila and Adela Hidalgo in Case L-25327 compose the three sets of tenants working on their lands. 2 "SEC. 13. Affidavit Required in Sale of Land Subject to Right of Pre-emption. — No deed of sale of agricultural land under cultivation by an agricultural lessee or lessees shall be recorded in the Registry of Property unless accompanied by an affidavit of the vendor that he has given the written notice required in Section eleven of this Chapter or that the land is not worked by an agricultural lessee." (R.A. No. 3844.) 3 "SEC. 4. Abolition of Agricultural Share Tenancy. — Agricultural share tenancy, as herein defined, is hereby declared to be contrary to public policy and shall be abolished: Provided, That existing share tenancy contracts may continue in force and effect in any region or locality, to be governed in the meantime by the pertinent provisions of Republic Act Numbered Eleven hundred and ninety-nine, as amended, until the end of the agricultural year when the National Land Reform Council proclaims that all the government Machineries and agencies in that region or locality relating to leasehold envisioned in this Code are operating, unless such contracts provide for a shorter period or the tenant sooner exercises his option to elect the leasehold system: Provided, further, That in order not to jeopardize international commitments, lands devoted to crops covered by marketing allotments shall be made the subject of a separate proclamation that adequate provisions, such as the organization of cooperatives, marketing agreements, or other similar workable arrangements, have been made to insure efficient management on all matters requiring synchronization of the agricultural with the processing phases of such crops: Provided,furthermore, That where the agricultural share tenancy contract has ceased to be operative by virtue of this Code, or where such a tenancy contract has been entered into in violation of the provisions of this Code and is, therefore, null and void, and the tenant continues in possession of the land for

cultivation, there shall be presumed to exist a leasehold relationship under the provisions of this Code, without prejudice to the right of the landowner and the former tenant to enter into any other lawful contract in relation to the land formerly under tenancy contract, as long as in the interim the security of tenure of the former tenant under Republic Act Numbered Eleven hundred and ninety-nine, as amended, and as provided in this Code, is not impaired: Provided, finally, That if a lawful leasehold tenancy contract was entered into prior to the effectivity of this Code, the rights and obligations arising therefrom shall continue to subsist until modified by the parties in accordance with the provisions of this Code." R.A. 3844, emphasis supplied. 4 Section 2, pars. (1), (2), and (6), R.A. 3844; emphasis supplied. 5 "(2) 'Agricultural lessee' means a person who, by himself and with the aid available from within his immediate farm household, cultivates the land belonging to, or possessed by another with the latter's consent for purposes of production, for a price certain in money or in produce or both. It is distinguished from civil law lessee as understood in the Civil Code of the Philippines." Sec. 166, R.A. 3844. "(25) 'Share tenancy' as used in this Code means the relationship which exists whenever two persons agree on a joint undertaking for agricultural production wherein one party furnishes the land and the other his labor, with either or both contributing any one or several of the items of production, the tenant cultivating the land personally with the aid of labor available from members of his immediate farm household, and the produce thereof to be divided between the landholder and the tenant." Idem. 6 "See. 11. Lessee's Right of Pre-emption. — In case the agricultural lessor decides to sell the landholding, the agricultural lessee shall have the preferential right to buy the same under

reasonable terms and conditions: Provided, That the entire landholding offered for sale must be pre-empted by the Land Authority if the landowner so desires, unless the majority of the lessees object to such acquisition: Provided, further, That where there are two or more agricultural lessees, each shall be entitled to said preferential right only to the extent of the area actually cultivated by him. The right of preemption under this Section may be exercised within ninety days from notice in writing, which shall be served by the owner on all lessees affected." R.A. 3844, emphasis supplied.

18 Automotive Parts & Equipment Co., Inc. vs. Lingad, L-26406, Oct. 31, 1969, 30 SCRA 248; U.P. Bd. of Regents vs. Auditor-General, L19617, Oct. 31, 1969, 30 SCRA 5: and Pagdanganan vs. Galleta L-23564, Nov. 28, 1969; 30 SCRA 426; Sarcos vs. Castillo, L29755, Jan. 31, 1969, 26 SCRA 853 and cases cited.

7 Section 51, R.A. 3844.

19 Maniego vs. Castelo, 101 Phil. 293, (1959) ; Vda. de Santos vs. Garcia, L-16894, May 31, 1963, 8 SCRA 194; Quimson vs. de Guzman, L18240, Jan. 31, 1963, 7 SCRA 158; and Pagdangan vs. Court of Agrarian Relations, L13858, 108 Phil. 590 (1960).

8 Sec. 166, par. (3), R.A. 3844.

20 Annex B, Petition.

9 Supra, paragraph 3.

21 Secs. 11 and 12, R.A. 3844; Montemayor, op. cit. Vol. 3, p. 246.

See

10 Sec. 74, R.A. 3844. 11 L-26255, June 30, 1969; 28 SCRA 665. 12 Id., emphasis and notes in parenthesis supplied. 13 Art. 18, Civil Code. 14 Art. 1616, Civil Code. 15 Vol. 3, Montemayor's Labor, Agrarian and Social Legislation 2d Ed. 1967, p.246. 16 Respondents-vendees, the spouses Saturnino Hidalgo and Bernardina Marquez; see fn. 1. 17 City of Baguio vs. Marcos L-26100, Feb. 28, 1969; 27 SCRA 342.

Republic SUPREME Manila

of

the

Philippines COURT

The question in this appeal is whether cocoa beans may be considered as "chocolate" for the purposes of exemption from the foreign exchange tax imposed by Republic Act No. 601 as amended. During the period from January 8, 1953 to October 9, 1953, the plaintiff appellant imported sun dried cocoa beans for which it paid the foreign exchange tax of 17 per cent totalling P74,671.04. Claiming exemption from said tax under section 2 of same Act, it sued the Central Bank that had exacted payment; and in its amended complaint it included the Treasurer of the Philippines. The suit was filed in the Manila Court of First Instance, wherein defendants submitted in due time a motion to dismiss on the grounds: first, the complaint stated no cause of action because cocoa beans were not "chocolate"; and second, it was a suit against the Government without the latter's consent. . The Hon. Gregorio S. Narvasa, Judge, sustained the motion, and dismissed the case by his order of November 19, 1954. Hence this appeal. The lower court, appellant contends, erred in dismissing the case and in holding that the term "chocolate" does not include sun dried cocoa beans.

EN BANC G.R. No. L-8888

November 29, 1957

SONG KIAT CHOCOLATE FACTORY, plaintiff-appellant, vs. CENTRAL BANK OF THE PHILIPPINES and VICENTE GELLA, in his capacity as Treasurer of the Philippines, defendants-appellees. Rogelio M. Jalandoni for appellant. Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee, Vicente Gella. Nat. M. Balbao and F. E. Evangelista for appellee, Central Bank of the Philippines. BENGZON, J.:

SEC. 2 of the aforesaid Act provides that "the tax collected or foreign exchange used for the payment of costs transportation and/or other charges incident to importation into the Philippines of rice, flour ..soya beans, butterfat, chocolate, malt syrup .. shall be refunded to any importer making application therefor, upon satisfactory proof of actual importation . . ." In support of its contention appellant quotes from dictionaries and encyclopedias interchangeably using the words "chocolate", "cacao" and "cocoa". Yet we notice that the quotations refer to "cocoa" as chocolate nut" "chocolate bean" or "chocolate tree." And the legal exemption refers to "chocolate" not the bean, nor the nut nor the tree. We agree with the Solicitor General and the other counsel of respondents that in common parlance the law is presumed to refer to it1 — chocolate is a manufactured or finished product made out of cocoa beans, or "cacao" beans as they are locally known. We

may take notice of the fact that grocery stores sell powdered cocoa beans as chocolate, labeled "cocoa powder", or simply "cocoa". They are, however, really chocolate; they are not cocoa beans. The manufacture of chocolate involves several processes, such as selecting and drying the cocoa beans, then roasting, grinding, sieving and blending.2 Cocoa beans do not become chocolate unless and until they have undergone the manufacturing processes above described. The first is raw material, the other finished product.

Mr. ROCES: Mr. SPEAKER, on line 8 page 1, after the word 'canned', strike out the words, 'fresh, frozen and' and also the words 'other beef', on line 9 and on the same line, line 9, after the word 'chocolate', insert the words '(COCOA BEANS)' in parenthesis ( ). I am proposing to insert the words '(COCOA BEANS)' in parenthesis ( ) after the word chocolate, Mr. Speaker, in order to clarify any doubt and manifest the intention of the past Congress that the word 'chocolate' should mean 'cocoa beans.

The courts regard "chocolate" as "Chocolate" is a preparation of roasted cacao beans without the abstraction of the butter and always contains sugar and added cacao butter. Rockwood & Co., vs. American President Lines, D. C. N. J., 68 F. Supp. 224, 226. Chocolate is a cocoa bean roasted, cracked, shelled, crushed, ground, and molded in cakes. It contains no sugar, and is in general use in families. Sweetened chocolate is manufactured in the same way but the paste is mixed wit sugar, and is used by confectioners in making chocolate confections. In re Schiling, 53 F. 81, 82, 3 C. C. A. 440. In view of the foregoing, and having in mind the principle of strict construction of statutes exempting from taxation,3we are of the opinion and so hold, that the exemption for "chocolate" in the above section 2 does not include "cocoa beans". The one is raw material, the other manufactured consumer product; the latter is ready for human consumption; the former is not. However, we cannot stop here, because in August 1954 — suit was brought in May 1954 — Congress approved Republic Act 1197 amending section 2 by substituting "cocoa beans" for "chocolate." This shows, maintains the appellant, the Legislature's intention to include cocoa beans in the word "chocolate." In fact, it goes on, the Committee Chairman who reported House Bill No. 2676 which became Republic Act 1197, declared before the House.

In reply to this, appellees point out that said chairman could not have spoken of the Congressional intention in approving Republic Act 601 because he was not a member of the Congress that passed said Act. Naturally, all he could state was his own interpretation of such piece of legislation. Courts do not usually give decisive weight to one legislator's opinion, expressed in Congressional debates concerning the application of existing laws.4 Yet even among the legislators taking part in the consideration of the amendatory statute (Republic Act 1197) the impression prevailed that, as the law then stood5 chocolate candy or chocolate bar was exempted, but cocoa beans were not. Here are Senator Peralta's statements during the discussion of the same House Bill No. 2576: SENATOR PERALTA: I signed that conference report and I am really bound by it, but, Mr. President, a few hours ago I received some information which maybe the chairman would like to know, to the effect that we allow chocolate bar, chocolate candy to come this country except from the 17 per cent tax when we do not allow cocoa beans, out of which our local manufacturers can make chocolate candy, exempted. So why do we not take off that exemption for chocolate and instead put 'cocoa beans' so as to benefit our manufacturers of chocolate candy?

view of the information, this seems to be inconsistent we allow chocolate to come here exempt and not exempt cocoa beans which is used by our manufacturers in making chocolate candy. And Senator Puyat is quoted as saying, in the same connection: MR. PRESIDENT, On the same page (page 1), line 9, delete "cocoa beans". The text as it came to the Senate was misleading. In the original law the exemption is for chocolate and the version that we got from the Lower House is "(cocoa beans)" giving the impression that chocolate and cocoa beans are synonymous. Now I think this is a sort of a rider, so your committee recommends the deletion of those words. (Journal of the Senate, July 30, 1954, re H. B. No. 2576, Emphasis ours.) Other parts of the Congressional record quoted in the briefs would seem to show that in approving House Bill No. 2576, the Congress agreed to exempt "cocoa beans" instead of chocolate with a view to favoring localmanufacturers of chocolate products.6 A change of legislative policy, as appellees contend7 — not a declaration or clarification of previous Congressional purpose. In fact, as indicating, the Government's new policy of exemptingfor the first time importations of "cocoa beans," there is the President's proclamation No. 62 of September 2, 1954 issued in accordance with Republic Act No. 1197 specifying that said exemption (of cocoa beans) shall operate from and after September 3, 1954 — not before. As a general rule, it may be added, statutes operate prospectively. Observe that appellant's cocoa beans had been imported during January-October 1953, i.e. before the exemption decree.

xxx xxx xxx. Senator PERALTA: Yes, I agree with the chairman, only I was just wondering if the chairman, might not consider the fact that in

After the foregoing discussion, it is hardly necessary to express our approval of the lower court's opinion about plaintiff's cause of action, or the lack of it. And it becomes unnecessary to consider the other contention of

defendants that this is a suit against the Government without its consent.

6

The order of dismissal is affirmed, with costs against appellant.

7

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

Whereas the exemption of "chocolate" aimed to benefit the consumers thereof. See footnote 5.

Republic SUPREME Manila

of

the

Philippines COURT

Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr., Administrative Officer III; Conrado Rey Matias, Technical Assistant to the Chief of Hospital; Cora C. Solis, Accountant III; and Enya N. Lopez, Supply Officer III, all of the National Center for Mental Health. The petition also asks for an order directing the Ombudsman to disqualify Director Raul Arnaw and Investigator Amy de Villa-Rosero, of the Office of the Ombudsman, from participation in the preliminary investigation of the charges against petitioner (Rollo, pp. 2-17; Annexes to Petition, Rollo, pp. 19-21).

EN BANC

Footnote

G.R. No. 106719 September 21, 1993

The questioned order was issued in connection with the administrative complaint filed with the Ombudsman (OBMADM-0-91-0151) by the private respondents against the petitioners for violation of the Anti-Graft and Corrupt Practices Act.

DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR., ENGR. CONRADO REY MATIAS, Ms. CORA S. SOLIS and Ms. ENYA N. LOPEZ, petitioners, vs. SECRETARY JUAN FLAVIER, Ombudsman CONRADO M. VASQUEZ, and NCMH NURSES ASSOCIATION, represented by RAOULITO GAYUTIN, respondents.

According to the petition, the said order was issued upon the recommendation of Director Raul Arnaw and Investigator Amy de Villa-Rosero, without affording petitioners the opportunity to controvert the charges filed against them. Petitioners had sought to disqualify Director Arnaw and Investigator Villa-Rosero for manifest partiality and bias (Rollo, pp. 4-15).

Renato J. Dilag and Benjamin C. Santos for petitioners.

On September 10, 1992, this Court required respondents' Comment on the petition.

1

"As a general rule words used in a statute are to be given their usual and commonly understood meaning .. ." C.J.S. p. 639. 2

CF. Encyclopedia Americana (1954) Vol. V, p. 129, 130; Encyclopedia Britannica, Vol. 5 (1945 ed.) p. 948. 3

Exemptions are never presumed, the burden is on the claimant to establish clearly his right to exemption and an alleged grant of exemption will be strictly construed and cannot be made out by inference or implication but must be beyond reasonable doubt. In other words, since taxation is the rule and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms. (Cooley on Taxation, 4th ed. Vol. 2. 1303.). 4

Interpretation of laws is for the Courts (See 82 C. J. S. pp. 745, 746). Even statutes declaring "what the law was before" are not binding on courts. Endencia vs. David, 93 Phil., 696, 49 Off. Gaz., 4825.

Danilo C. Cunanan for respondent Ombudsman. Crispin T. Reyes and Florencio T. Domingo for private respondent.

QUIASON, J.: This is a Petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or Temporary Restraining Order, under Rule 65 of the Revised Rules of Court.

5

Section 2 of Republic Act 601 was amended first by Republic Act 814 and later by Republic Act 871. In both amendments "chocolate" was retained.

Principally, the petition seeks to nullify the Order of the Ombudsman dated January 7, 1992, directing the preventive suspension of petitioners,

On September 14 and September 22, 1992, petitioners filed a "Supplemental Petition (Rollo, pp. 124-130); Annexes to Supplemental Petition; Rollo pp. 140-163) and an "Urgent Supplemental Manifestation" (Rollo, pp. 164-172; Annexes to Urgent Supplemental Manifestation; Rollo, pp. 173-176), respectively, averring developments that transpired after the filing of the petition and stressing the urgency for the issuance of the writ of preliminary injunction or temporary restraining order. On September 22, 1992, this Court ". . . Resolved to REQUIRE the respondents to MAINTAIN in the meantime, theSTATUS QUO pending filing of comments by said respondents on the original supplemental manifestation" (Rollo, p. 177).

On September 29, 1992, petitioners filed a motion to direct respondent Secretary of Health to comply with the Resolution dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp. 192-203). In a Resolution dated October 1, 1992, this Court required respondent Secretary of Health to comment on the said motion. On September 29, 1992, in a pleading entitled "Omnibus Submission," respondent NCMH Nurses Association submitted its Comment to the Petition, Supplemental Petition and Urgent Supplemental Manifestation. Included in said pleadings were the motions to hold the lawyers of petitioners in contempt and to disbar them (Rollo, pp. 210267). Attached to the "Omnibus Submission" as annexes were the orders and pleadings filed in Administrative Case No. OBM-ADM-0-91-1051 against petitioners (Rollo, pp. 268-480). The Motion for Disbarment charges the lawyers of petitioners with: (1) unlawfully advising or otherwise causing or inducing their clients — petitioners Buenaseda, et al., to openly defy, ignore, disregard, disobey or otherwise violate, maliciously evade their preventive suspension by Order of July 7, 1992 of the Ombudsman . . ."; (2) "unlawfully interfering with and obstructing the implementation of the said order (Omnibus Submission, pp. 50-52; Rollo, pp. 259-260); and (3) violation of the Canons of the Code of Professional Responsibility and of unprofessional and unethical conduct "by foisting blatant lies, malicious falsehood and outrageous deception" and by committing subornation of perjury, falsification and fabrication in their pleadings (Omnibus Submission, pp. 52-54; Rollo, pp. 261-263). On November 11, 1992, petitioners filed a "Manifestation and Supplement to 'Motion to Direct Respondent Secretary of Health to Comply with 22 September 1992 Resolution'" (Manifestation attached to Rollo without pagination between pp. 613 and 614 thereof). On November 13, 1992, the Solicitor General submitted its Comment dated November 10, 1992, alleging that: (a) "despite the issuance of the September 22, 1992 Resolution directing respondents to maintain the status quo, respondent Secretary refuses to hold in abeyance the

implementation of petitioners' preventive suspension; (b) the clear intent and spirit of the Resolution dated September 22, 1992 is to hold in abeyance the implementation of petitioners' preventive suspension, the status quo obtaining the time of the filing of the instant petition; (c) respondent Secretary's acts in refusing to hold in abeyance implementation of petitioners' preventive suspension and in tolerating and approving the acts of Dr. Abueva, the OIC appointed to replace petitioner Buenaseda, are in violation of the Resolution dated September 22, 1992; and (d) therefore, respondent Secretary should be directed to comply with the Resolution dated September 22, 1992 immediately, by restoring the status quo ante contemplated by the aforesaid resolution" (Comment attached toRollo without paginations between pp. 613-614 thereof). In the Resolution dated November 25, 1992, this Court required respondent Secretary to comply with the aforestated status quo order, stating inter alia, that: It appearing that the status quo ante litem motam, or the last peaceable uncontested status which preceded the present controversy was the situation obtaining at the time of the filing of the petition at bar on September 7, 1992 wherein petitioners were then actually occupying their respective positions, the Court hereby ORDERS that petitioners be allowed to perform the duties of their respective positions and to receive such salaries and benefits as they may be lawfully entitled to, and that respondents and/or any and all persons acting under their authority desist and refrain from performing any act in violation of the aforementioned Resolution of September 22, 1992 until further orders from the Court (Attached to Rollo after p. 615 thereof). On December 9, 1992, the Solicitor General, commenting on the Petition, Supplemental Petition and Supplemental

Manifestation, stated that (a) "The authority of the Ombudsman is only to recommend suspension and he has no direct power to suspend;" and (b) "Assuming the Ombudsman has the power to directly suspend a government official or employee, there are conditions required by law for the exercise of such powers; [and] said conditions have not been met in the instant case" (Attached to Rollo without pagination). In the pleading filed on January 25, 1993, petitioners adopted the position of the Solicitor General that the Ombudsman can only suspend government officials or employees connected with his office. Petitioners also refuted private respondents' motion to disbar petitioners' counsel and to cite them for contempt (Attached to Rollowithout pagination). The crucial issue to resolve is whether the Ombudsman has the power to suspend government officials and employees working in offices other than the Office of the Ombudsman, pending the investigation of the administrative complaints filed against said officials and employees. In upholding the power of the Ombudsman to preventively suspend petitioners, respondents (Urgent Motion to LiftStatus Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of R.A. No. 6770, which provides: Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. Respondents argue that the power of preventive suspension given the Ombudsman under Section 24 of R.A. No. 6770 was contemplated by Section 13 (8) of Article XI of the 1987 Constitution, which provides that the Ombudsman shall exercise such other power or perform such functions or duties as may be provided by law." On the other hand, the Solicitor General and the petitioners claim that under the 1987 Constitution, the Ombudsman can only recommend to the heads of the departments and other agencies the preventive suspension of officials and employees facing administrative investigation conducted by his office. Hence, he cannot order the preventive suspension himself. They invoke Section 13(3) of the 1987 Constitution which provides that the Office of the Ombudsman shall haveinter alia the power, function, and duty to: Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance therewith. The Solicitor General argues that under said provision of the Constitutions, the Ombudsman has three distinct powers, namely: (1) direct the officer concerned to take appropriate action against public officials or employees at fault; (2) recommend their removal, suspension, demotion fine, censure, or prosecution; and (3) compel compliance

with the recommendation (Comment dated December 3, 1992, pp. 9-10).

be given the discretion to decide when the persons facing administrative charges should be preventively suspended.

The line of argument of the Solicitor General is a siren call that can easily mislead, unless one bears in mind that what the Ombudsman imposed on petitioners was not a punitive but only a preventive suspension.

Penal statutes are strictly construed while procedural statutes are liberally construed (Crawford, Statutory Construction, Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil. 456 [1953]). The test in determining if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of an injury to an individual (59 Corpuz Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A Code prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644).

When the constitution vested on the Ombudsman the power "to recommend the suspension" of a public official or employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the words associated with the word "suspension" in said provision referred to penalties in administrative cases, e.g. removal, demotion, fine, censure. Under the rule of Noscitor a sociis, the word "suspension" should be given the same sense as the other words with which it is associated. Where a particular word is equally susceptible of various meanings, its correct construction may be made specific by considering the company of terms in which it is found or with which it is associated (Co Kim Chan v. Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18 SCRA 247 [1966]).

The purpose of R.A. No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objectives of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided.

Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend public officials and employees facing administrative charges before him, is a procedural, not a penal statute. The preventive suspension is imposed after compliance with the requisites therein set forth, as an aid in the investigation of the administrative charges.

A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d) 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E., 438 [1934]).

Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate official the discipline or prosecution of erring public officials or employees. In order to make an intelligent determination whether to recommend such actions, the Ombudsman has to conduct an investigation. In turn, in order for him to conduct such investigation in an expeditious and efficient manner, he may need to suspend the respondent.

In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a preventive suspension is not a penalty, said:

The need for the preventive suspension may arise from several causes, among them, the danger of tampering or destruction of evidence in the possession of respondent; the intimidation of witnesses, etc. The Ombudsman should

Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty.

To support his theory that the Ombudsman can only preventively suspend respondents in administrative cases who are employed in his office, the Solicitor General leans heavily on the phrase "suspend any officer or employee under his authority" in Section 24 of R.A. No. 6770.

government. The moment a criminal or administrative complaint is filed with the Ombudsman, the respondent therein is deemed to be "in his authority" and he can proceed to determine whether said respondent should be placed under preventive suspension.

The origin of the phrase can be traced to Section 694 of the Revised Administrative Code, which dealt with preventive suspension and which authorized the chief of a bureau or office to "suspend any subordinate or employee in his bureau or under his authority pending an investigation . . . ."

In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion amounting to lack of jurisdiction when he issued the suspension order without affording petitioners the opportunity to confront the charges against them during the preliminary conference and even after petitioners had asked for the disqualification of Director Arnaw and Atty. Villa-Rosero (Rollo, pp. 6-13). Joining petitioners, the Solicitor General contends that assuming arguendo that the Ombudsman has the power to preventively suspend erring public officials and employees who are working in other departments and offices, the questioned order remains null and void for his failure to comply with the requisites in Section 24 of the Ombudsman Law (Comment dated December 3, 1992, pp. 11-19).

Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which superseded Section 694 of the Revised Administrative Code also authorized the chief of a bureau or office to "suspend any subordinate officer or employees, in his bureau or under his authority." However, when the power to discipline government officials and employees was extended to the Civil Service Commission by the Civil Service Law of 1975 (P.D. No. 805), concurrently with the President, the Department Secretaries and the heads of bureaus and offices, the phrase "subordinate officer and employee in his bureau" was deleted, appropriately leaving the phrase "under his authority." Therefore, Section 41 of said law only mentions that the proper disciplining authority may preventively suspend "any subordinate officer or employee under his authority pending an investigation . . ." (Sec. 41). The Administrative Code of 1987 also empowered the proper disciplining authority to "preventively suspend any subordinate officer or employee under his authority pending an investigation" (Sec. 51). The Ombudsman Law advisedly deleted the words "subordinate" and "in his bureau," leaving the phrase to read "suspend any officer or employee under his authority pending an investigation . . . ." The conclusion that can be deduced from the deletion of the word "subordinate" before and the words "in his bureau" after "officer or employee" is that the Congress intended to empower the Ombudsman to preventively suspend all officials and employees under investigation by his office, irrespective of whether they are employed "in his office" or in other offices of the

Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly issued even without a full-blown hearing and the formal presentation of evidence by the parties. In Nera, supra, petitioner therein also claimed that the Secretary of Health could not preventively suspend him before he could file his answer to the administrative complaint. The contention of petitioners herein can be dismissed perfunctorily by holding that the suspension meted out was merely preventive and therefore, as held in Nera, there was "nothing improper in suspending an officer pending his investigation and before tho charges against him are heard . . . (Nera v. Garcia., supra). There is no question that under Section 24 of R.A. No. 6770, the Ombudsman cannot order the preventive suspension of a respondent unless the evidence of guilt is strong and (1) the charts against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would warrant removal from the service; or (3) the respondent's continued stay in office may prejudice the case filed against him.

The same conditions for the exercise of the power to preventively suspend officials or employees under investigation were found in Section 34 of R.A. No. 2260. The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. In the case at bench, the Ombudsman issued the order of preventive suspension only after: (a) petitioners had filed their answer to the administrative complaint and the "Motion for the Preventive Suspension" of petitioners, which incorporated the charges in the criminal complaint against them (Annex 3, Omnibus Submission, Rollo, pp. 288-289; Annex 4, Rollo, pp. 290-296); (b) private respondent had filed a reply to the answer of petitioners, specifying 23 cases of harassment by petitioners of the members of the private respondent (Annex 6, Omnibus Submission, Rollo, pp. 309-333); and (c) a preliminary conference wherein the complainant and the respondents in the administrative case agreed to submit their list of witnesses and documentary evidence. Petitioners herein submitted on November 7, 1991 their list of exhibits (Annex 8 of Omnibus Submission, Rollo, pp. 336-337) while private respondents submitted their list of exhibits (Annex 9 of Omnibus Submission, Rollo, pp. 338348). Under these circumstances, it can not be said that Director Raul Arnaw and Investigator Amy de Villa-Rosero acted with manifest partiality and bias in recommending the suspension of petitioners. Neither can it be said that the Ombudsman had acted with grave abuse of discretion in acting favorably on their recommendation. The Motion for Contempt, which charges the lawyers of petitioners with unlawfully causing or otherwise inducing their clients to openly defy and disobey the preventive suspension as ordered by the Ombudsman and the Secretary of Health can not prosper (Rollo, pp. 259-261). The Motion should be filed, as in fact such a motion was filed, with the Ombudsman. At any rate, we find that the

acts alleged to constitute indirect contempt were legitimate measures taken by said lawyers to question the validity and propriety of the preventive suspension of their clients. On the other hand, we take cognizance of the intemperate language used by counsel for private respondents hurled against petitioners and their counsel (Consolidated: (1) Comment on Private Respondent" "Urgent Motions, etc.; (2) Adoption of OSG's Comment; and (3) Reply to Private Respondent's Comment and Supplemental Comment, pp. 4-5). A lawyer should not be carried away in espousing his client's cause. The language of a lawyer, both oral or written, must be respectful and restrained in keeping with the dignity of the legal profession and with his behavioral attitude toward his brethren in the profession (Lubiano v. Gordolla, 115 SCRA 459 [1982]). The use of abusive language by counsel against the opposing counsel constitutes at the same time a disrespect to the dignity of the court of justice. Besides, the use of impassioned language in pleadings, more often than not, creates more heat than light. The Motion for Disbarment (Rollo, p. 261) has no place in the instant special civil action, which is confined to questions of jurisdiction or abuse of discretion for the purpose of relieving persons from the arbitrary acts of judges and quasi-judicial officers. There is a set of procedure for the discipline of members of the bar separate and apart from the present special civil action. WHEREFORE, the petition is DISMISSED and the Status quo ordered to be maintained in the Resolution dated September 22, 1992 is LIFTED and SET ASIDE. SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Puno and Vitug, JJ., concur. Feliciano, J., is on leave.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to justify the preventive suspension of petitioners.

Separate Opinions

# Separate Opinions BELLOSILLO, J., concurring:

BELLOSILLO, J., concurring: I agree that the Ombudsman has the authority, under Sec. 24 of R.A. No. 6770, to preventively suspend any government official or employee administratively charged before him pending the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice the prosecution of the case. However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has authority to suspend petitioners preventively while the case is in progress before him. Equally important is the determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by the facts. We may be suspending key government officials and employees on the basis merely of speculations which may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it is not easy to replace them in their respective functions as those substituting them may be taking over for the first time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I agree that the Ombudsman has the authority, under Sec. 24 of R.A. No. 6770, to preventively suspend any government official or employee administratively charged before him pending the investigation of the complaint, the reason being that respondent's continued stay in office may prejudice the prosecution of the case. However, in the case before us, I am afraid that the facts thus far presented may not provide adequate basis to reasonably place petitioners under preventive suspension. For, it is not enough to rule that the Ombudsman has authority to suspend petitioners preventively while the case is in progress before him. Equally important is the determination whether it is necessary to issue the preventive suspension under the circumstances. Regretfully, I cannot see any sufficient basis to justify the preventive suspension. That is why, I go for granting oral argument to the parties so that we can truthfully determine whether the preventive suspension of respondents are warranted by the facts. We may be suspending key government officials and employees on the basis merely of speculations which may not serve the ends of justice but which, on the other hand, deprive them of their right to due process. The simultaneous preventive suspension of top officials and employees of the National Center for Mental Health may just disrupt, the hospital's normal operations, much to the detriment of public service. We may safely assume that it is not easy to replace them in their respective functions as those substituting them may be taking over for the first time. The proper care of mental patients may thus be unduly jeopardized and their lives and limbs imperilled.

I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to justify the preventive suspension of petitioners. Republic SUPREME Manila

of

the

Philippines COURT

FIRST DIVISION G.R. No. 150917

That on or about the 1st day of October, (sic) 1989, in the Municipality of Bauang, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and maul one DEOGRACIAS GUNDRAN, thereby inflicting upon said victim several injuries on the different parts of his body which directly caused his death, to the damage and prejudice of the heirs of the victims.

September 27, 2006

ARTEMIO YADAO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: For Review1 is the 18 April 2001 Decision2 and 13 November 2001 Resolution3 of the Court of Appeals in CAG.R. CR No. 19818, affirming in toto the 28 March 1996 Decision4 of the Regional Trial Court of Bauang, La Union, Branch 33, in Criminal Case No. 1042-BG. Petitioner Artemio Yadao (Yadao) prays for the reversal of the decision finding him "guilty beyond reasonable doubt of the crime of homicide as charged in the information x x x,"5 defined and penalized under Article 249 of the Revised Penal Code for the death of Deogracias Gundran (Gundran), and sentencing him to suffer the "indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional in its maximum period, as Minimum to EIGHT (8) YEARS of prision mayor in its minimum period, as Maximum, x x x."6 On 21 April 1989, petitioner Yadao was charged with the crime of homicide before the Regional Trial Court (RTC) of Bauang, La Union, Branch 33, for allegedly mauling one Deogracias Gundran, in an Information,7 the accusatory portion of which states:

CONTRARY TO ART. 249 of the Revised Penal Code. The case was docketed as Criminal Case No. 1042-BG. Upon arraignment, petitioner Yadao with assistance of a counsel de parte, pleaded "Not Guilty" to the crime charged. Thus, trial ensued, with the prosecution presenting four witnesses, namely 1) Carmelita Limon,8 2) Teofilo Gundran,9 3) Napoleon Estigoy10 and 4) Dr. Arturo Llavore,11 to establish petitioner Yadao's culpability beyond reasonable doubt of the crime charged. To counter the evidence abovementioned, the defense offered the testimonies of the following defense witnesses: 1) petitioner Artemio Yadao, 2) Reynaldo Feratero,12 3) Dr. Magdalena Alambra,13 4) Calixto Chan14 and 5) Evelyn Uy, as well as documentary evidence, i.e., the Autopsy Report of Dr. Alambra. From a review of the record of the case, we cull the following established facts: It was petitioner Yadao's birthday on 1 October 1988. As such, he had a few guests over at his house to help him celebrate it. The guests included defense witnesses Reynaldo Feratero, Calixto Chan and Evelyn Uy. At around 9:00 a.m., petitioner Yadao noticed the victim, Gundran,15 albeit not invited, to be milling around with the guests and was already drinking gin. At around 3:45 p.m. of the said day, while petitioner Yadao was sitting on one end of a bench, the victim, who happened to be lying down on the other end of the same bench, suddenly stood up.

Because no one else was sitting on the middle, said bench tilted due to the weight of petitioner Yadao, thus, causing him to fall to the ground. Upon seeing him fall to the ground, the victim went over to petitioner Yadao and began boxing him on the stomach. Petitioner Yadao's wife tried to pacify her nephew but this merely enraged the latter who then got a can opener and tried to stab petitioner Yadao with it. The latter deflected said attempt and delivered a slap on the face of the victim in order to "knock some sense" into him. But because he was already intoxicated, as he had been drinking since early that morning, the victim lost his balance, hit his head on the edge of a table and fell to the ground landing on his behind. The other guest helped the victim to stand up and proceeded to show him to the door. The victim, Gundran, left the house of petitioner Yadao, between 4:00 to 5:00 p.m., and proceeded to the house of Carmelita Limon who was the sister of one of his friends. At that time, Limon was inside her house doing the laundry. Upon seeing him, Limon noticed a one-inch in diameter lump on the victim's forehead. The victim told her that he came from the birthday party of petitioner Yadao and that the latter "mauled" him. While she treated the "wound" with "kutsay," an herb, the victim complained of pain on his breast/stomach area, the area where he claimed to have been hit by petitioner Yadao. Two days later, or on 3 October 1988, Teofilo Gundran, the father of the victim was informed by his granddaughter that his son, the victim, was having difficulty breathing. Teofilo Gundran then proceeded to where the victim was, which happened to be in his (the victim's) sister's house, a short distance away from Limon's house. When he got to the house, Teofilo Gundran saw the victim sitting on an "arinola" gasping for breath. He then held the victim's two hands until the latter expired. On the same day that he died, the body of the victim was autopsied by Dr. Magdalena Alambra, Medical Specialist II of the Rural Health Unit of Bauang, La Union. In her Autopsy Report, she made the following findings: PERTINENT PHYSICAL FINDINGS:

1. Hematoma suboponeurotic layer of the scalp rt. Fronto parietal area 10 cm. in length and 9 cm. in width. 2. Fibrocaseous necrosis of the right lung with loss of lung parenchymal tissue and pleural adhesion of the rt. Lateral wall of the chest. CAUSE OF DEATH: Cardio respiratory arrest due to pulmonary tuberculosis. Far advanced with massive pleural adhesion rt. side.16 During the trial of the case, Dr. Alambra testified for the defense. She stated under oath that immediately after the death of the victim, she conducted the autopsy of the body of said victim; that during the procedure, she made an internal, as well as external, examination of the body of the victim; that fibrocaseous meant that half of the victim's lungs, the right one in particular, was already gone; that she was only told that the victim had been mauled and that the latter became weak thereafter; that although a hematoma17 was present on the victim's forehead, she did not consider it as the cause of death as hematoma alone will not cause the death of a person especially seven to eight days later; and, that when she opened the skull of the victim to study the latter's brain, she did not see anything unusual. Dr. Alambra then confirmed that the cause of death of the victim was cardio-respiratory arrest due to pulmonary tuberculosis that was already so far advanced with massive pleural adhesions. On cross, however, she stated that a person with only one lung left, with proper medication, would still be able to live normally. Disbelieving that cardiac arrest secondary to Tuberculosis was the cause of death of his son; Teofilo Gundran had the victim's body re-autopsied, this time by the National Bureau of Investigation. The re-autopsy was conducted by Dr. Arturo G. Llavore, a Medico-Legal Officer of the National Bureau of Investigation (NBI) Regional Office, San Fernando, La Union, on 11 October 1991, or eight days after the first autopsy.18 Dr. Llavore's autopsy report stated: AUTOPSY REPORT NO. 88-26-LU

POSTMORTEM FINDINGS Cadaver, embalmed. I. Abrasions: Frontal region, left side. 0.9 x 0.2 cm.; Arm, left, upper third, anterior aspect, 2.0 x 0.6 cm.; Forearm, right, upper third, anteromedial aspect, 0.2 x 0.2 cm.; Elbow, left, posterior aspect, 0.6 x 0.4 cm., and right, posters-medial aspect, 2.0 x 0.5 cm. in size. II. Hematoma, Scalp, Interstitial; Frontotempero-parietal region, right side, 13.0 x 10.0 cms., massive, extensive; Frontal region, slightly to the right of the anterior medial line, 2.0 x 1.6 cms., mild; Occipital region, mid-aspect, 8.0 x 2.3 cms, moderate. III. Brain, markedly congested, with flattening and widening of gyri and narrowing of the sulci. Cerebral blood vessels markedly engorged. IV. Lungs, Left lung intact; right lung previously dissected. Cut sections showed areas of fibrosis at the right lung (focal) surrounded by atelectatic and emphysematous changes, (Pleural Adhesions, right. - B-2)19 V. Other internal visceral organs, markedly congested. VI. Stomach, with approximately 60 cc of dark brownish fluid. *** end *** CAUSE OF DEATH: CEREBRAL EDEMA, SEVERE, SECONDARY TO TRAUMATIC INJURIES; HEAD/ REMARKS: Pls. see pathology Report No. P-88339. Old healed scars noted at Chest, anterior and lateral aspects, right. Scalp incision,

postmortem, extending from above left ear, over the superior midline and down to the front of right ear, 36.0 cms. long. Postmortem incision, Y-shaped, extending from anterior superior portion of Chest to abdominal area, lower quadrant, 53.0 cms. long. During the trial, prosecution witness Dr. Llavore testified that the cause of death of the victim was the collective effect of all the injuries sustained by the latter on the head. He explained that the forces that could have caused the injuries to the victim's head were also the same forces that could have caused the edema or swelling of the victim's brain. He illustrated further that a human fist applied with "sufficient" force on the fronto-temporo-parietalregion of the head could cause an injury the same as that sustained by the victim on his forehead. Similarly, the injury found at the back of the head of the victim could have been caused by an edge of a palm applied with sufficient force or it could have been caused by hitting his head on the edge of a table as the shape of said injury is somewhat elongated. On cross examination, Dr. Llavore admitted that he did the re-autopsy seven (7)20 days after the victim died but that his Autopsy Report failed to indicate that the cadaver had previously been autopsied by another physician; that the blow inflicted on the head of the victim was strong enough to have injured the "moorings" of the brain causing the destruction of the brain cells and the shifting of the fluid in the skull to one side; that the most serious wound between the two injuries sustained by the victim on the head is the one found on his right forehead; and that the process of swelling became irreversible when the compression of the brain had caused its center to become "imbalanced," so that the victim's brain ceased to function. After trial, in a Decision21 promulgated on 28 March 1996, the RTC rendered judgment finding petitioner Yadao guilty of the crime of homicide, and sentencing him as follows: WHEREFORE, in view of the foregoing, the Court, finding the accused guilty beyond reasonable doubt of the crime of Homicide as charged in the information, and after considering two (2) mitigating circumstances, hereby sentences him to suffer an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional in its

maximum period, as Minimum to EIGHT (8) YEARS of prision mayor in its minimum period, as Maximum, and to indemnify the heirs of the deceased the sum of P50,000.00 for the death of Deogracias Gundran and to pay the costs. SO ORDERED.

the natural and logical consequences resulting there from". (sic) x x x. xxxx Under paragraph 1, Article 4, revised Penal Code, a person committing a felony is still criminally liable even if – "x x x

The RTC held that: After a careful consideration and examination of the testimonies of both medico-legal officers, this Court is inclined to give more weight on the testimony of Dr. Arturo Llavore that the cause of death of Deogracias Gundran was "cerebral edema, severe, secondary to traumatic injuries, head" and not "Cardio respiratory Arrest due to pulmonary tuberculosis. It is to be noted that Dra. Magdalena Alambra testified and even admitted that a person even if he has no (sic) lungs can still live. Hence, the injuries which the victim Deogracias Gundran sustained on his head caused his death as he did not immediately undergo medical treatment. And as testified to by Dr. Arturo Llavore x x x the blow inflicted was fatal or very serious that "if no medical intervention is made, it will be untreated (sic)" (T.S.N., September 25, 1991, p. 38). x x x [g]ranting for the sake of argument that accused Artemio Yadao did not maul the victim but only slapped him slightly which caused him to fall down as he was very drunk, still accused is liable for the consequences of his act. xxxx The case involves the application of Article 4 of the Revised Penal Code, which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended. x x x "Pursuant to this provision, "an accused is criminally responsible for the acts committed by him in violation of law and for all

(c) the injurious result is greater than that intended-prater-intentionem. x x x Indeed the act of the accused in slapping the victim Deogracias Gundran causing the latter to fall down hitting his head which caused his eventual death is something which the accused cannot escape. This Court does not favor making conjectures but looking at the body built (sic) of the accused who is tall and sturdy as compared to the body built (sic) of the victim who was described to be tall and lanky, it is not hard to believe that accused did not know that natural and inevitable result of the act of slapping the victim, considering the fact that accused even admitted that the victim was then very drunk. Aggrieved, petitioner Yadao appealed the aforequoted decision to the Court of Appeals. The appellate court, in itsDecision22 of 18 April 2001, affirmed in toto the judgment of conviction rendered by the RTC. The fallo of Court of Appeals decision states that:

Petitioner Yadao's ensuing motion for reconsideration was denied by the Court of Appeals in its Resolution of 13 November 2001, seeing as no "new matters or issues raised in (the) Motion for Reconsideration x x x."23 Hence, this petition for review on certiorari under Rule 45 of the Revised Rules of Court. Petitioner Yadao seeks the reversal of the decision of the RTC, as affirmed by the Court of Appeals, finding him guilty beyond reasonable doubt of the crime of homicide. Essentially, it is his contention that the evidence presented by the prosecution was not sufficient to establish his guilt beyond reasonable doubt as the perpetrator of the crime of homicide. He maintains that the existence of two autopsy reports entirely differing as to the cause of death of the victim is tantamount to reasonable doubt respecting his legal culpability thereto. Particularly, he argues that: x x x [t]he trial court's finding "that the blow inflicted was fatal and very serious" is not in accord with the physical manifestations of Gundran in going to and while in the house of Carmelita. It is a matter of human experience that when a person is struck with a fatal or serious blow in the head to such an extent that his brain becomes swollen with its moorings injured as found by Dr. Llavore in this case, such person will suffer serious, disabling or painful consequences. Either he will be rendered comatose or unconscious or suffer severe pain in the head. xxxx

WHEREFORE, FOREGOING PREMISES CONSIDERED, there being no reversible error but instead being in accordance with law and evidence, the appealed Decision dated March 28, 1996 of the Regional Trial Court, Branch 33, Bauang, La Union (sic) is AFFIRMED in toto. Costs against accused-appellant. SO ORDERED.

And although Limon noticed a lump in (sic) his forehead, Gundran did not complain of any pain in the head and when asked what he felt he told Limon that he felt pain in his chest and stomach because that was where he was mauled. The Office of the Solicitor General, for its part, asserts that: It is clear from the record that Dr. Alambra failed to notice the brain injury sustained by the victim

because she merely relied on "gross findings" of said organ during her autopsy. After opening the skull, she merely took a look at the brain, felt it, and found nothing unusual about the organ. She testified that she could not conduct further laboratory examinations on the victim's brain for lack of facilities (citation omitted). This circumstance indicates that the findings of the two (2) medico-legal experts, although inconsistent, are not necessarily irreconcilable. The threshold issue in this case, therefore, is whether or not the prosecution was able to prove the guilt of petitioner Yadao beyond reasonable doubt on the basis of the testimonies of the prosecution witnesses, especially Dr. Llavore's, and documentary evidence presented, i.e., the Dr. Llavore's Autopsy Report. The petition has merit. Article 249 of the Revised Penal Code (RPC) defines and punishes the crime of homicide, viz: ART. 249. Homicide. – Any person who, not falling within the provisions of Article 246,24 shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be guilty of homicide and be punished by reclusión temporal. From the abovequoted provision of law, the elements of homicide are as follows: 1) a person was killed; and 2) the accused killed him without any justifying circumstance; 3) the accused had the intention to kill, which is presumed; and 4) the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.25 The Constitution demands that every accused be presumed innocent until the charge is proved. Before an accused can be convicted of any criminal act, his guilt must first be proved beyond reasonable doubt.26 In this jurisdiction, proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces

conviction in an unprejudiced mind; it does not demand absolute certainty and the exclusion of all possibility of error;27 it is that engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt.28 Basic is the principle in criminal law that the evidence presented must be sufficient to prove the corpus delicti – the body or substance of the crime and, in its primary sense, refers to the fact that a crime has been actually committed.29 The corpus delicti is a compound fact composed of two things: 1) the existence of a certain act or aresult forming the basis of the criminal charge, and 2) the existence of a criminal agency as the cause of this act or result.30 In all criminal prosecutions, the burden is on the prosecution to prove the body or substance of the crime. In the case at bar, was the prosecution able to prove the two components of the corpus delicti? We think not. Though it was established that petitioner Yadao slapped the victim, and as a result of which the latter fell down and struck his head on the edge of a table, the prosecution nonetheless failed to show the nexus between the injury sustained by the victim and his death. It failed to discharge the burden to show beyond a reasonable doubt that the death of the victim resulted from the use of violent and criminal means by petitioner Yadao. The fact that the victim herein was wounded is not conclusive that death resulted therefrom. To make an offender liable for the death of the victim, it must be proven that the death is the natural consequence of the physical injuries inflicted. If the physical injury is not the proximate cause31 of death of the victim, then the offender cannot be held liable for such death.

In convicting Petitioner Yadao, the RTC and the Court of Appeals principally relied upon the testimony of Dr. Llavore in addition to the latter's autopsy report, both essentially stating that the injury sustained by the victim in the head caused massive hematoma and/or cerebral edema. However, we find said testimonial and documentary evidence utterly insufficient on which to anchor a judgment of conviction for homicide. To our mind, his testimony, as well as the Autopsy Report containing his findings, vis-àvis the first autopsy conducted by Dr. Alambra and the factual circumstances surrounding the conduct of two autopsies done on said cadaver, do not engender a moral certainty, much less a belief, that the injury sustained was the cause of his death. This Court's doubt is brought about by Dr. Llavore's failure to account the effects of the following facts: 1) that the cadaver had previously been autopsied; 2) that during the first autopsy, Dr. Alambra opened up the skull of the victim to physically examine his brain and did not see anything out of the ordinary, neither blood clot and/or pooling nor any swelling; 3) that the cadaver of the victim had already been embalmed; 4) that it had not been established for how long the embalming fluid was supposed to stave off or delay the decomposition of the cadaver of the victim; 5) that the re-autopsy was conducted eight (8) days after the death of the victim; 6) that when the cadaver of the victim was re-autopsied, decomposition may have already set in despite the body having been embalmed; and 7) that the only hematoma noted inside of the cadaver's head was that on the "suboponeurotic layer of the scalp rt. fronto parietal region,"32or "scalp, interstitial; Fronto-temporo-parietal region, right side."33 In layman's terms, the hematoma, noted by both physicians, was merely on the scalp, just below the skin, of the frontal right side of the head – nowhere near the brain as the area was still outside of the skull. Even Dr. Llavore recognized such fact as clearly stated in his Autopsy Report and testified to in open court, viz: COURT:

It has been established in this case that on the afternoon of 1 October 1988, at around 3:45 p.m., petitioner Yadao slapped the victim once. This is based from the unrebutted testimonies of defense witnesses – the only eyewitnesses to the assault. It is also undisputed that the victim died on 3 October 1988, or two days later. What is in dispute, however, is the cause of the latter's death.

Now, could you tell us – could you tell this Court what is the cause of that trauma? xxxx

Witness: A x x x the cause of the trauma on the head is physical contact as shown in paragraph 3, there were injuries to these areas on the right side and actually there were two (2) and one (1) at the back of the head and the force or violence that was applied to these areas caused the brain to move suddenly also and the displacement of the substances, the brain substances, because the brain is very fragile, it is very soft, once they are displaced from their place, because they move, there is breaking of very minute blood vessels – the very minute blood vessels if the force is stronger, it could create breakage or rupture of larger blood vessels which you can say grossly as hemorrhage, but in this case, there is no hemorrhage – there is no gross hemorrhage, there is only minute blood vessels and since there is destruction of the very minute blood vessels, they swell individually, they swell and collectively, the swelling becomes so great because it already involves the whole brain and the brain becomes swollen, it expands, it tries to expand, but it cannot. Therefore, it compresses in itself. Consequently, the post mortem report and testimony of Dr. Alambra should not be easily discounted. The same is significant in that the testimony and the report on the autopsy, which was done immediately after the death, establishes the nature and extent of the "injury," sustained as a result of the assault, as well as the state of the brain and the surrounding area at the time of death. The significance of said evidence will lead to the precise nature of the injury sustained by the victim. From a legal perspective, therefore, the examination of a wound should lead to the determination as to the degree of danger of the wound and the danger it poses to the life or bodily function of the victim when the wound was inflicted. Wharton and Stille's discussion on the importance of a thorough and painstaking post-mortem examination or assessment of the degree of injury sustained by the victim is highly instructive, it reads:

x x x [a] careful post-mortem examination will usually show the violent cause of death, and it is the duty of the physician whose opinion is desired, to make that examination most carefully, and to base his opinion entirely upon the findings of this examination; not upon previous notions of the probable nature and effects of the wound. Moreover, it is necessary not merely to make an examination of the regions apparently involved in the injury, but also a thorough examination of the entire body; for, notwithstanding the immediate cause of death may be evident, it is still advisable to be sure that there was no cause of death in any other part. [Emphasis supplied.] This Court recognizes the fact that the most critical aspect of head trauma is what happens to the brain; that the immediate brain damage that results from head trauma is dependent upon the force applied to the head, the area of its application, and whether the head is fixed or freely movable; that when viable tissue receives an application of force strong enough to be injurious, it (the body) responds by alteration in intracellular and extracellular fluid content, by extravasation of blood, by increasing blood supply to the local area, and by mobilization of cells capable of removing cellular debris and repairing any disruption.34 Moreover, it is acknowledged that tissues of the nervous system, the brain being one of its components, and like any other tissue of the body, responds to injury by the formation of edema or the retention of fluid.35 Hence, it is not quite farfetched that the victim may have had cerebral edema as a result of the injury he sustained in the head. But just the same, such a conclusion, as stated in the second post mortem report, does not necessarily preclude the fact that the swelling or edema noted in the tissues of the brain may have been due to other factors i.e., such as decomposition or the fact that the cadaver of the victim had already been embalmed. The foregoing uncertainty is all the more reinforced by the testimony of Dr. Alambra and her findings stated in the First Autopsy Report stating that there were no signs of damage to the brain, external or internal. This, by itself, is very much inconsistent with the allegation that the cerebral edema was the cause of death of the victim, which if it were so, would have already been manifest at the time of death.

From a medical perspective, the abovediscussed issues are essentially significant and must be established first before any correlation of the injury to the victim's cause of death is done. It is an established fact that during decomposition, numerous cellular changes occur in the body. A microscopic examination of the tissues (of the body) under the influence of "autolytic enzymes"36 enzymes shows disintegration, swelling or shrinkage, vacuolization and formation of small granules within the cytoplasm of the cells.37 Therefore, the swelling of the brain, along with the other organs of the victim as stated in the Pathology Report38 by the NBI, which reads: FINDINGS MICROSCOPIC DESCRIPTIONS: Brain (cerebral cortex): and cerebellum) : sections show markedly widened spaces in the virchow in the white matter of the cerebrum and collapsed walls of the capillaries. Cloudy swelling of neurons and interstitial edema, marked. Kidneys: sections show focal infiltrations of chronic inflammatory cells in the interstitium accompanied by tubular atrophy and glomeruler sclerosis. Cloudy swelling of tubules in the cortex, moderate. Medullary congestion, moderate. The cerebellum shows Liver: sections show moderate congestion of red blood cells in the sinusoids and cloudy swelling of liver cells. Lungs: sections show marked congestion of pulmonary septae exhibiting numerous macrophages containing hemusiderin pigments. Alternating atelectatic and hyperinflated lung alveoli with emphysematous and bullae formation can be noted. Fibrosis in diffuse in other areas with calcifications. The small bronchi are irregularly dilated.

Myocardium: congestion of capillaries and cloudy swelling of muscle fibers, moderate. x x x x [Emphasis supplied.] may have also been due to the decomposing state of the cadaver of the victim and not just that caused by the head injury he sustained from the hands of petitioner Yadao. Additionally, to delay the onset of decomposition, cadavers are embalmed. Embalming is the artificial way of preserving the body after death by injecting 6 to 8 quarts of antiseptic solutions of formalin, perchloride or mercury or arsenic, which is carried into the common carotid and the femoral arteries.39 However, a dead body must not be embalmed before the autopsy.40 The embalming fluid may render the tissue and blood unfit for toxicological analyses.41 The embalming may alter the gross appearance of the tissues or may result to a wide variety of artifacts that tend to destroy or obscure evidence. 42 Thus, in the case at bar, even if the cadaver of the victim may not have started decomposing at the time of the re-autopsy, all the same, the fact that such had already been embalmed, any examination will likely lead to findings or conclusion not at all accurate as to the true status of the tissues of the body of the victim. From the above, absent further clarifications, Dr. Llavore's conclusion that the victim's cause of death is cerebral edema is nothing but conjecture, being tenuous and flawed. Consequently, the findings as stated in said autopsy report is not decisive of the of the issue of whether or not injury sustained by the victim in his head when he was slapped by petitioner Yadao and/or when the victim hit his head on the edge of the table were the sole cause of the cerebral edema observed in the latter's brain during the re-autopsy conducted eight (8) days after his death. Again, it could have been caused by other factors, one of which could have been the decomposition or the breakdown of the cellular tissues of the body naturally occurring after death, or the fact that the cadaver of the victim had already been previously embalmed. Dr. Llavore's testimony that the cause of death of the victim was the collective effect of the blow sustained by the latter's head; that the blow was strong enough to have

caused the displacement of the brain from its moorings and the resultant swelling. Such conclusion was brought about by the doctor's external and internal examination of the brain of the victim. The records of the case, however, is again bereft of any indication that the said inference or conclusion took into account the fact that the cadaver of the victim had been previously autopsied, more importantly, that his brain had been already been removed from its "moorings" by Dr. Alambra in order for her to take the same out of the skull when she examined it. Indeed, the evidence of the defense might not, by itself, suffice to emphatically negate the causal relationship between the actions of petitioner Yadao causing injury to the victim and the cause of his death, but the same must be considered in conjunction with the weakness of the evidence given by the prosecution's witness discussed above. Defense witness Dr. Alambra's Autopsy Report, on top of her testimony that upon opening the skull of the victim, she found nothing out of the ordinary in the brain, tend to reinforce the doubt already engendered by the weakness of the prosecution's evidence about the fundamental correlation of the injury and the cause of death. It was incumbent upon the prosecution to demonstrate petitioner Yadao's culpability beyond a reasonable doubt, independently of whatever the defense has offered to exculpate the latter. Conviction must rest on the strength of the prosecution's evidence, not merely on conjectures or suppositions, and certainly not on the weakness of the accused's defense; otherwise, the phrase "constitutional presumption of innocence" will be reduced to nothing but an innocuous grouping of words; worse, to a conspicuous exercise in futulity. As a rule, findings of fact of trial courts are accorded great weight, even finality, on appeal, unless the trial court has failed to appreciate certain facts and circumstances that, if taken into account, would materially affect the result of the case.43 In this case, prescinding from the above discussion, it is arrantly manifest that the RTC, as well as the Court of Appeals, overlooked material and relevant facts that could affect the outcome of the case. The constitutional presumption of innocence aforementioned requires us to take "a more than casual consideration" of every circumstance or doubt favoring the innocence of the accused as court have the imperative duty to "put prosecution evidence under severe testing."44

The principle has been dinned into the ears of the bench and the bar that in this jurisdiction, accusation is not synonymous with guilt.45 The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.46 If the evidence is susceptible of two interpretations, one consistent with the innocence of the accused and the other consistent with his guilt, the accused must be acquitted.47The overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt.48 If there exist even one iota of doubt, this Court is "under a long standing legal injunction to resolve the doubt in favor of herein accusedpetitioner."49 From the foregoing, the inevitable conclusion is that the guilt of petitioner Yadao has not been proved beyond reasonable doubt. The facts of the case, the autopsy reports, as well as the testimony of Dr. Llavore do not definitely establish that the assault was the proximate cause of the death of the victim. Even assuming for the sake of argument that the blow inflicted on the head of the victim resulted in an edematous condition of the brain, petitioner Yadao would still not be held liable for the death as the prosecution failed to present proof that said act was the efficient and proximate cause of the victim's demise. An acquittal based on reasonable doubt will prosper even though the accused's innocence may be doubted. 50 It is better to free a guilty man than to unjustly keep in prison one whose guilt has not been proved by the required quantum of evidence. For only when there is proof beyond any shadow of doubt that those responsible should be made answerable.51 The heirs of the victim, however, have not completely lost their case. Settled in jurisprudence is the principle that a court may acquit an accused on reasonable doubt and still order payment of civil damages in the same case. 52 In this case, though petitioner Yadao is acquitted, nonetheless, his liability for damages is not considered extinguished since the judgment of acquittal is not based on a pronouncement that the facts from which civil claims might arise did not exist. Accordingly, this Court awards P50,000.00 as civil damages to the heirs of the victim.

WHEREFORE, the 28 March 1996 Decision of the Regional Tial Court of Bauang, La Union, Branch 33, as well as the 18 April 2001 Decision and 13 November 2001 Resolution both of the Court of Appeals are herebyREVERSED and SET ASIDE. Petitioner Artemio Yadao is ACQUITTED of the charge of homicide on the ground of reasonable doubt. His immediate release from custody is hereby ordered unless he is being held for other lawful causes. However, Petitioner Artemio Yadao is ordered to pay the heirs of victim Deogracias Gundran in the amount of Fifty Thousand Pesos (P50,000.00) as civil indemnity. Costs de oficio. SO ORDERED. Panganiban, C.J., Chairman, Ynares-Santiago, AustriaMartinez, Callejo, Sr., J.J., concur.

7

Records, p. 2.

20

It was actually eight days after the first autopsy, or on 11 October 1988.

8

42 yr. old resident of Dili, Bauang, La Union; she testified that Gundran is considered a close family friend, the latter being a "kabarkada" of her brother. 9

The father of the victim.

21

Supra at note 4.

22

Supra at note 2.

23

Supra at note 3.

10

Local Civil Registrar of San Fernando, La Union.

24

The article in the RPC defining and punishing the crime of parricide.

11

The NBI physician who conducted the 2nd autopsy on the body of the victim. 12

A guest at petitioner Yadao's birthday party.

13

Id.

14

Id.

25

L. Reyes, THE REVISED PENAL CODE, Book Two, p. 470 (15th ed., 2001). 26

Calimutan v. People, G.R. No. 152133, 9 February 2006, 482 SCRA 44, 57. 27

Footnotes 15

1

Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court. 2

Penned by Court of Appeals Associate Justice Mercedes Gozo-Dadole with Associate Justices Fermin A. Martin, Jr. and Portia AliñoHormachuelos concurring; Annex "A" of the Petition; rollo, pp. 52-64.

Deogracias Gundran happened to be a nephew of petitioner Yadao's wife.

28

16

29

Records, pp. 43-45.

Penned by Hon. Fortunato V. Panganiban, Presiding Judge, RTC Bauang, La Union, Branch 33; Annex "D" of the Petition; rollo, pp. 80-97. 5

18

19

Annex "C" of the Petition; rollo, p. 79.

4

Dispositve of the RTC Decision, p. 18; rollo, p. 97. 6

Id.

People v. Dramayo, 149 Phil. 107, 112-113 (1971). R. Francisco, BASIC EVIDENCE, p. 38 of the Supplement (1999).

17

Hematoma is the extravasation or effusion of blood in a newly formed cavity underneath the skin. It usually develops when the blunt instrument is applied in part of the body where bony tissue is superficially located, like the head, chest and anterior aspect of the legs. The force applied causes the subcutaneous tissue to rupture on account of the presence of a hard structure underneath. The destruction of the subcutaneous tissue will lead to the accumulation of blood causing it to elevate.

3

REVISED RULES OF COURT, Rule 133, Section 2.

30

23 C.J.S. 264.

31

Proximate cause is that cause, which in natural and continuous sequence of events, unbroken by an efficient intervening cause, produces injury or death, and without which the result would not have occurred. 32

Dr. Alambra's autopsy report.

Records, p. 12.

33

Dr. Llavore's autopsy report.

Handwritten by Dr. Llavore.

34

S. I. Schwartz, et al., PRINCIPLES OF SURGERY, p. 1787 (4th ed., 1984).

35

Id. at 1790.

51

People v. Vidal, G.R. No. 90419, 1 June 1999, 308 SCRA 1.

house was razed in a fire which gutted the entire neighborhood on February 8, 1981.

52

On June 17, 1986, the private respondents applied for individual lot allocations with the NHA. The Awards and Arbitration Committee (AAC) of West Crame, to whom the request was forwarded by the NHA, denied the applications because the parties were disqualified for a lot award. Upon appeal to the NHA, this decision was reversed and the private respondents were awarded the lots occupied by their respective structures inside Lot 10, Block 17.

36

Enzymes that digests the cell in which it is produced, usually marking the death of the cell. It is produced during autolysis – the process by which a cell, in dying tissues, self destructs (the cell then, in effect, digests itself). 37

Id. at 136.

38

By NBI pathologist Dr. Nieto M. Salvador; Records, p. 182.

Padilla v. Court of Appeals, G.R. No. L-39999, 31 May 1984. Republic SUPREME Manila

of

the

Philippines COURT

THIRD DIVISION

39

P. Solis, LEGAL MEDICINE, p. 220 (Revised ed., 1987). 40

Id. at 169.

41

Id.

42

Id.

43

People v. Batidor, 362 Phil. 673, 681-682 (1999).

G.R. No. 109216 October 27, 1994 PACITA TING, petitioner, vs. HON. COURT OF APPEALS, AURORA TANALEON EPIFANIA GOMILLA, ELIZA SUBALDO, and ROBERTO/SHIRLEY YEBRA, respondents. Public Attorney's Office for petitioner. Esmeralda R. Acorda for private respondents.

44

People v. Bautista, 368 Phil. 100, 120 (1999).

45

Dela Cruz v. People, G.R. No. 150439, 29 July 2005, 465 SCRA 190, 215. 46

People v. Mejia, 341 Phil. 118, 145 (1997).

47

People v. Manambit, 338 Phil. 57, 100 (1997).

48

People v. Vasquez, 345 Phil. 380, 399 (1997).

49

Supra at note 43.

50

People v. Fronda, 384 Phil. 732, 743 (2000).

ROMERO, J.: Sometime in 1965, the spouses Jose and Pacita Ting purchased a house standing on a 212-square meter lot known as Lot 10, Block 17 of the West Crame ZIP (Zonal Improvement Program. The lot was bought by the government under Presidential Decree No. 1517, otherwise known as the "Urban Land Reform Act," for disposition to qualified beneficiaries. These beneficiaries were determined in the 1978 census conducted by the Municipality of San Juan. Jose Ting was listed as a structure owner and was given Tag No. 80-0417-01. Pacita Ting allegedly allowed the private respondents herein to occupy portions of the lot in question after their

Pacita Ting twice moved for a reconsideration of the award, but the NHA upheld its decision on both occasions, denying her second motion with finality in an order dated May 29, 1989. She then appealed to the Office of the President (OP), which rendered a decision on August 15, 1990, affirming the NHA's ruling, with the following observations: The appealed order, it bears stressing, is primarily assayed on the factual and unrebutted findings of the office a quo anent the extent of and actual occupancy by appellant and appellees of their respective areas. Consequently, appellant's contention that she alone is entitled to the award of the entire Lot 10, Block 17, with an area of 212 square meters, on the strength of her allegation that the other claimants are not qualified project beneficiaries, is untenable. That subject lot had been earlier awarded by the ZIP project's Arbitration and Adjudication Committee (AAC) to appellant adds nothing in the way of conclusiveness to the legality of her claim to the whole area, much more confers upon her a vested right thereto, to the exclusion of appellees who, as shown by the evidence, are as much as qualified to

be lot awardees of the NHA. For, in the first place, no formal award of the controverted lot has been made by the NHA to appellant for lack of Notice of Award issued by the NHA General Manager, and, more importantly, no Conditional Contract to Sell of said lot was even executed between appellant and the NHA. And, in the second place, the decision of the AAC is merely recommendatory and subject to the final approval of the NHA, thru its General Manager. Hence, the disapproval of appellee's applications for lot award and their subsequent elevation of the case to the NHA by way of appeal is but in accord with the NHA rule of proceedings, the AAC's award to appellant not having yet acquired the character of finality. Appellant's lot allocation cannot, and should not, extend to portions of the lot where appellees' structures had been constructed. Otherwise, appellant would be the virtual owner of the structures put up by appellees on the portions of subject lot which the former had leased to the latter without the required prior approval by the NHA. And worst, such arrangements would constitute a palpable violation of NHA policy against multiple ownership of structures in its ZIP projects, as defined under Section V, Paragraph 5 of NHA Circular No. 13, dated February 19, 1982. Were this Office to rule that appellant is entitled to the award of the entire Lot 10, Block 17 whereon several other structures have been constructed, the net result thereof would be a stultification, if not complete evisceration, of the NHA policy of "one structure, one lot," which eventuality this Office cannot legally countenance.

Appellant's claim that the NHA proceedings was punctuated with bias and partiality is a mere play on emotion that cannot defeat the overriding considerations of justice and fair play. In so ruling for herein appellees, the NHA simply fittingly supplied its long standing policy of awarding NHA lots to the actual occupants thereof and within the permissible limits. What is more, appellant had failed to overthrow the presumption of regularity that the courts attach to acts of administrative bodies/officers. Finally, considering that the NHA is tasked with the determination of the technical aspects of mass housing, which includes the feasibility of subdividing lots for multiple allocations, the award of the contested lot to all the contending parties in the manner heretofore adjudged, on the basis of their actual occupancy, is but in consonance with the government's declared policy under Section 3 of PD 757, "[t]o provide and maintain adequate housing for the greatest possible number of people."

Hence, petitioner filed this petition for review with the following assigned errors: I THE FINDINGS AND CONCLUSIONS OF THE NATIONAL HOUSING AUTHORITY, THAT PRIVATE RESPONDENTS SEASONABLY FILED THE NOTICE OF APPEAL WITH THE NATIONAL HOUSING AUTHORITY FROM THE DECISION OF THE AWARD AND ARBITRATION COMMITTEE IS NOT SUPPORTED WITH EVIDENCE. II ASSUMING WITHOUT CONCEDING THAT PRIVATE RESPONDENTS INTERPOSED THE APPEAL FROM THE DECISION OF THE AWARD AND ARBITRATION COMMITTEE STILL, THE NATIONAL HOUSING AUTHORITY HAS NO JURISDICTION TO ENTERTAIN THE APPEAL, HAVING BEEN FILED OUT OF TIME. III

Petitioner's motion for reconsideration of this decision was likewise denied. Not satisfied with these pronouncements, petitioner appealed to the Court of Appeals raising, as one of the issues, the lack of jurisdiction of the NHA to entertain the appeal of the private respondents from the decision of the AAC. The appellate court dismissed the petition in its decision dated December 29, 1992, and denied petitioner's motion for reconsideration on March 3, 1993.

THE DECISION OF THE NATIONAL HOUSING AUTHORITY WHICH WAS AFFIRMED BY THE OFFICE OF THE PRESIDENT AND THE HONORABLE RESPONDENT COURT OF APPEALS IS TAINTED WITH UNFAIRNESS AND ARBITRARINESS AMOUNTING TO ABUSE OF DISCRETION. IV

THE CONSTRUCTION AND INTERPRETATION GIVEN BY THE NATIONAL HOUSING AUTHORITY UPON SEC. 3 OF P.D. 757 IS IN VIOLATION OF NHA CIRCULAR NO. 13 KNOWN AS THE CODE OF POLICY, PARTICULARLY SEC. V, PAR. 3, THEREOF. V THE NATIONAL HOUSING AUTHORITY GRAVELY ERRED IN AWARDING LOTS TO PRIVATE RESPONDENTS WHO WERE ADMITTEDLY UNCENSUSED HOUSEHOLD OWNERS IN ZIP WEST CRAME BECAUSE THEY (sic) FOUR ARE ALL DISQUALIFIED.

proof as to the existence of said appeal by the respondents. How then can petitioner allege the late filing of an appeal which she claims does not even exist? Her argument simply defies logic and must consequently be stricken out. The issue of lack of jurisdiction was first raised before the Court of Appeals. It appears however, that whereas in the proceedings below, petitioner claimed that the NHA lacked jurisdiction to entertain the appeal from AAC's decision, the basis of the same allegation of lack of jurisdiction raised in the instant petition is the NHA'sentertainment of the appeal in spite of having been filed late. This may be a desperate effort on the part of the petitioner to overturn the unanimous decisions of the appellate court and the administrative bodies concerned, considering that the Court of Appeals has sufficiently and correctly rejected the claim of lack of jurisdiction of the NHA to entertain the appeal.

VI THE PRIVATE RESPONDENTS ARE DEEMED TO HAVE ADMITTED PETITIONER'S ALLEGATION IN THE PETITION FILED WITH THE COURT OF APPEALS FOR FAILURE TO FILE THEIR COMMENT/ANSWER TO IT AS REQUIRED BY THE COURT. It must be noted at this juncture that this petition is actually a special civil action for certiorari filed under Rule 65. A perusal of the errors cited above instantly reveals that the basis of this petition is grave abuse of discretion amounting to lack of jurisdiction allegedly committed, not by the respondent Court of Appeals, but by the NHA and the Office of the President. It even prays for the reinstatement of the AAC's decision. Henceforth, we shall treat this petition as one for certiorari under Rule 65. Petitioner claims that the NHA has no jurisdiction to reverse the AAC's decision and award the lot to the private respondents because the latter's appeal was filed out of time. It is also claimed, in the alternative, that there is no

Under paragraph V(7) of NHA Circular No. 13, dated February 19, 1982 upon which the petitioner also relies, "All decisions of the AAC shall be subject to review and approval of the General Manager of the Authority, the local Mayors, and finally the Governor of the Metropolitan Manila Commission." It is clear from this provision that the NHA was acting within its statutory authority when it reversed the decision of the AAC and awarded the lot to the respondents. While it is true that NHA Circular No. 13 does not provide for any period within which to appeal, the 15-day period applied to appeals from quasi-judicial bodies to the Court of Appeals cannot apply to an appeal from the AAC's decision to the NHA which is an intra-agency recourse. Anyhow, the decision of the NHA in this case was reached "after a judicious review and evaluation of the records and the documentary evidence submitted." and "in consonance with the mandate of the Authority to provide and maintain adequate housing for the greatest number of people." The petitioner also claims that the "construction given by the National Housing Authority over Sec. 3 of P.D. 757 is in violation of NHA Circular No. 13," and that the NHA "gravely erred in awarding (the)

lot to private respondents who were admittedly uncensused household owner(s) in ZIP West Crame." This argument is untenable. In the first place, the "construction given to a statute by an administrative agency charged with the interpretation and application of that statute is entitled to great respect and should be accorded great weight by the courts, unless such construction is clearly shown to be in sharp conflict with the governing statute or the Constitution and other laws. . . . The Courts give much weight to contemporaneous construction because of the respect due the government agency or officials charged with the implementation of the law, their competence, expertness, experience and informed judgment, and the fact that they frequently are the drafters of the law they interpret." 1 In the second place, these are factual issues already touched upon and decided by the Court of Appeals which may not be assailed in this petition, there being nothing on record that would justify a relaxation of the rule that the appellate court's findings of fact are conclusive upon the Court, which may only review and correct errors of law. 2 On the issue that the challenged NHA decision is "tainted with unfairness and arbitrariness amounting to lack of jurisdiction," suffice it to say that the Court has consistently declared that findings or conclusions of administrative bodies which have gained expertise in their fields because their jurisdiction is confined to specific matters, supported as they are by substantial evidence, are generally respected and even given finality, in the absence of a showing of unfairness or arbitrariness on the part of the administrative body amounting to abuse of discretion or lack of jurisdiction. 3 Hence, the decision of the NHA, as well as that of the Office of the President, should not be disturbed on appeal. Finally, petitioner alleges that the "private respondents are deemed to have admitted petitioner's allegation in the petition with the Court of Appeals for their failure to file their comment/answer as required by the Court of Appeals."

The non-filing of the comment/answer by the private respondents cannot be interpreted as an admission of the allegations in the petition. Under Section 8, Rule 65 (which applies in this case instead of Section 1, Rule 9, stating that allegations not specifically denied are deemed admitted), upon the expiration of the period to file an answer, "the court may order the proceedings complained of to be forthwith certified up for review and shall hear the case, and if after such hearing the court finds that the allegations of the petition are true, it shall render judgment for such of the relief prayed for as the petitioner is entitled to . . . ." Conversely, if the court finds the allegations to be false, then it is not duty bound to grant any of the reliefs sought, and may dismiss the petition outright.

Exploration, Inc. v. Macaraig, Jr., 194 SCRA 1 [1991]; Villanueva, Sr. v. Leogardo Jr., 215 SCRA 835 [1992], citing Special Events & Central Shipping Office Workers Union v. San Miguel Corporation, 122 SCRA 557 [1983]; Sesbreno v. Ala, 208 SCRA 359 [1992]. THIRD DIVISION

[G.R. No. 99859. September 20, 1996] WHEREFORE, in view of the foregoing, the instant petition for review (properly certiorari) is hereby DISMISSED for lack of merit.

Bidin, Melo and Vitug, JJ., concur.

PHILIPPINE SCOUT VETERANS SECURITY & INVESTIGATION AGENCY, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and PORPING REGALADO, respondents.

Feliciano, J., is on leave.

DECISION

SO ORDERED.

PANGANIBAN, J.:

# Footnotes 1 Nestle Philippines, Appeals, 203 [1991], citing Asturias Inc. v. Commissioner SCRA 617 [1969].

Inc. v. Court of SCRA 504 Sugar Central, of Customs, 29

2 Godines v. Court of Appeals, 226 SCRA 338 [1993], citing Ronquillo v. Court of Appeals, 195 SCRA 433 [1991]. 3 Tiatco v. Civil Service Commission, 216 SCRA 749 [1992], citing Filipinas Manufacturers Bank v. NLRC, 182 SCRA 848 [1990], and Earth Minerals

Does the Labor Code, prior to its amendment by Republic Act No. 7641,[1] authorize the payment of retirement pay in the absence of a provision therefor in a collective bargaining agreement or other applicable employment contract? The instant petition for certiorari seeks to nullify the Decision of the National Labor Relations Commission[2] promulgated January 10, 1991, in NLRC Case No. 00-05-02236-89, entitled “Porping Regalado vs. Phil. Scout Veterans Security & Investigation Agency, Inc. and/or Col. Cesar Sa Macalalad”, affirming the labor arbiter’s[3] award of retirement pay to private respondent.

The Antecedent Facts

Private respondent worked for the petitioner as a security guard since September 1963 until his retirement at the age of 60 on March 20, 1989, with a monthly salary of P1,480.00. He formally requested petitioner for payment of his retirement pay, but petitioner refused, stating that it would give him financial assistance instead, without specifying the amount, which offer was refused by the private respondent. On May 11, 1989, private respondent filed a complaint for non-payment of retirement benefits against petitioner, docketed as NLRC Case No. 00-05-0223689. Petitioner, in its position paper, alleged that private respondent was not entitled to retirement pay since there was no company policy which provided for nor any collective bargaining agreement granting it. On September 19, 1989, the arbiter rendered his decision in favor of private respondent.[4] Inasmuch as his ratiocination may be indicative of the mind-set of our labor officialdom, we quote the same below: “It is admitted that it is provided in Article 287 of the Labor Code that in case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any CBA or other agreement. Since there is no CBA nor company policy granting the same, we have to look into other articles of the Labor Code. Article 283 of the Labor Code requires employer to give separation pay to employees who were retrenched at the rate of one month salary for every year of service when the termination is a result of installation of labor saving device and one-half month pay for every year of service in case of retrenchment due to prevent losses (sic), closure or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses. Article 284 of the Labor Code also requires employer to pay an employee his separation pay at the rate of one-half month salary for every year of service when terminated due to incurable disease. An analysis of this article will reveal that it is the intention of the Code to provide same financial assistance to these people who are dislocated either because of loss of employment or due to disease and yet, an employee who retires and ironically whose company does not have any CBA nor policy providing for retirement pay will not receive any retirement pay for him to augment and supply his needs during his old age. This matter has to be correct(ed) and it will be an

injustice if such retirement pay will be denied to complainant. After all, the company has benefitted from the service of the employee, hence, it is only fitting for the company to provide him some funds for his old age. Also, equity demands that in cases where there is no CBA nor company policy providing a retirement pay, an employer must pay its employee the needed retirement pay. WHEREFORE, judgment is hereby rendered ordering the respondent Phil. Scout Veterans Security and Investigation Agency, Inc. to pay complainant his retirement pay at the rate of one-half month salary for every year of service, a fraction of at least six (6) months considered as one year of service.” Petitioner appealed to the respondent National Labor Relations Commission, which in its now-assailed Decision[5] affirmed the arbiter: “An employee is entitled to retirement benefits even in the absence of a company retirement plan or collective bargaining agreement. This is the import of Article 287 of the Labor Code, as amended, and implemented by Sections 13 and 14, Rule I, Book V (sic) of the Rules Implementing the Labor Code. Thus in a case, this Commission (1st Division) ruled: ‘With respect to the award of retirement benefits, the contention of respondent-appellant that complainant is not entitled to his claim of retirement benefits or to his termination or separation pay because he was not retired under the bonafide retirement plan or under an individual or collective bargaining agreement or under company policy, is highly untenable because Rule I, Sections 13 and 14, Book VI of the Rules Implementing the Labor Code taken together clearly states that, with or without a retirement plan, individual or collective bargaining agreement or company policy, an employee who retires or is retired at the age of sixty (60) or over, is entitled to termination pay equivalent to one-half month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Moreover, if social justice and compassion to labor demand that termination pay be granted to victims of mechanization, redundancy, retrenchment to avoid losses

and which are, from the standpoint of affected employees usually temporary contingency that do not prevent them from sooner or later being gainfully employed again, we feel that there is far greater need to cushion retired employees from the difficulties attendant to old age and permanent idleness. And in protecting retired employees, we are also protecting their dependents. This is the essence of social justice. (Angel T. Tolentino vs. Standard Wood Products Company, Inc., NLRC Case No. NCR-53847-82, NLRC First Division, Promulgated July 8, 1987.)’” Petitioner moved for reconsideration but respondent Commission denied the same for lack of merit. Hence, this recourse. This Court issued a temporary restraining order on June 10, 1991, enjoining respondent Commission and its representatives from enforcing its January 10, 1991 Decision. In a Manifestation in Lieu of Comment dated July 25, 1991, the Solicitor General agreed with the petitioner’s position.

The Issues

Petitioner alleges that respondent Commission acted with grave abuse of discretion: A “x x x IN APPLYING THE PROVISIONS OF ARTICLE 283 AND ARTICLE 284 OF THE LABOR CODE OF THE PHILIPPINES, AS AMENDED, AS THE LAW THAT PROVIDE FOR RETIREMENT PAY TO PRIVATE RESPONDENT.

The Court’s Ruling

The main contention of both petitioner and the Solicitor General is that there is no contractual nor statutory basis for the grant of retirement pay, hence, said award is improper. The petition is impressed with merit. The applicable provisions of the Labor Code on the matter of retirement are Art. 287 of the Labor Code, and Sections 13 and 14(a) of Rule I, Book VI of the Implementing Rules, which read as follows: “Article 287. Retirement. Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining or other agreement.” xxx xxx

xxx

“Sec. 13. Retirement. In the absence of any collective bargaining agreement or other applicable agreement concerning terms and conditions of employment which provides for retirement at an older age, an employee may be retired upon reaching the age of sixty (60) years.

x x x IN ISSUING THE QUESTIONED RESOLUTION WHICH RESULTED IN ADMINISTRATIVE LEGISLATION.”

Sec. 14. Retirement Benefits. (a) An employee who is retired pursuant to a bona-fide retirement plan or in accordance with the applicable individual or collective agreement or established employer policy shall be entitled to all the retirement benefits provided therein or to termination pay equivalent at least to one-half month salary for every year of service, whichever is higher, a fraction of at least six (6) months being considered as one whole year.”

In a nutshell, the issue here is whether or not private respondent is legally entitled to retirement benefits.

It is at once apparent from a cursory reading of the arbiter’s decision that, in making the award of retirement

B

pay, he was confronted by the lack of contractual or statutory basis therefor. Undaunted, he scavenged for a basis from among the other provisions of the Labor Code. Seizing upon Articles 283 and 284, he concluded that it is ironical and unjust that some financial assistance is provided for people who are dismissed from their jobs and who can presumably still find other work and continue to earn a livelihood, but not for those who are retired and facing the difficulties attendant to old age and permanent idleness. This reflection exudes wisdom; unfortunately, it lacks legal basis. Going even deeper, respondent Commission, instead of clearing up the confusion, added to it by construing Sections 13 and 14(a) of Rule I, Book VI of the Implementing Rules in relation to Art. 287 as basis for the grant of retirement benefits to private respondent. But far from being novel, this issue had already been settled in Abaquin Security and Detective Agency, Inc. vs. Atienza,[6] where this Court held: “Construing these provisions in relation to the same issue presented in this petition, this Court in the case of Llora Motors, Inc., and/or Constantino Carlota, Jr. vs. Hon. Franklin Drilon, et al., (G.R. No. 82895, November 7, 1989) clarified that Article 288 (now 287) ‘does not itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws. In other words, Article 287 recognizes that existing laws already provide for a scheme by which retirement benefits may be earned or accrue in favor of employees, as part of a broader social security system that provides not only for retirement benefits but also death and funeral benefits, permanent disability benefits, sickness benefits and maternity leave benefits.” In Llora Motors, Inc. vs. Drilon,[7] this Court sought to end the confusion caused by the wording of Section 14 abovequoted, and differentiated between the concepts of “termination pay” and “retirement benefits”. We clarified that the phrase “pay equivalent at least one-half month salary for every year of service, whichever is higher” pertains to termination pay:

“x x x Section 14 (a) refers to ‘termination pay equivalent to at least one-half (1/2) month for every year of service’ while Section 14 (b) mentions ‘termination pay to which the employee would have been entitled had there been no such retirement fund’ as well as ‘termination pay the employee is entitled to receive.’ It should be recalled that Sections 13 and 14 are found in Implementing Rule I which deals with both ‘termination of employment’ and ‘retirement.’ It is important to keep the two (2) concepts of ‘termination pay’ and ‘retirement benefits’ separate and distinct from each other. Termination pay or separation pay is required to be paid by an employer in particular situations identified by the Labor Code itself or by Implementing Rule I. Termination pay where properly due and payable under some applicable provision of the Labor Code or under Section 4 (b) of Implementing Rule I, must be paid whether or not an additional retirement plan has been set up under an agreement with the employer or under an ‘established employer policy.’ What needs to be stressed, however, is that Section 14 of Implementing Rule I, like Article 287 of the Labor Code, does not purport to require ‘termination pay’ to be paid to an employee who may want to retire but for whom no additional retirement plan had been set up by prior agreement with the employer. Thus, Section 14 itself speaks of an employee ‘who is retired pursuant to a bonafide retirement plan or in accordance with theapplicable individual or collective agreement or established employer policy’ x x x.” (italics in the original text.) Consequently, the Decision in question has to be struck down for being legally indefensible. While Article 287 has since been amended by Republic Act No. 7641 (approved on December 9, 1992) to read as follows: “x x x

xxx

xxx

In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire

and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term ‘one half (1/2) month salary’ shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. x x x

x x x

x x

x” nevertheless, the aforequoted provisions, which could have saved the day for the private respondent, cannot be applied in this case, since private respondent retired on March 20, 1989, or about three years prior to the approval of the new retirement law. RA 7641 is to be effective prospectively, absent a clear intention on the part of the legislature to give it retroactivity.[8] “It is a rule of statutory construction that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the retrospective effect.”[9] The fact that respondent Commission had a prior ruling in a similar case[10]granting retirement benefits is of no moment. Although it may be true that the contemporaneous construction of a statute by executive officers tasked to enforce and implement said statute should be given great weight by the courts, nevertheless, if such construction is erroneous[11] or is clearly shown to be in conflict with the governing statute or the Constitution or other laws,[12] the same must be declared null and void. “It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government.”[13] Had respondent Commission simply followed our ruling in Llora Motors, this problem would not have reached this far. Besides, with Llora’s promulgation in 1989, the ruling in the Tolentinocase was effectively superseded.

It has been held that “(i)t is axiomatic that retirement laws are liberally construed and administered in favor of the persons intended to be benefited. All doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes.”[14] The intention is to provide for the retiree’s sustenance and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. Unfortunately, such interpretation cannot be made in this case in the light of the clear lack of consensual and statutory basis of the grant of retirement benefits to private respondent.

[10]

Tolentino vs. Standard Wood Products Co., Inc., NLRC Case No. NCR-5-3847-82. [11]

Abaquin, supra, p. 466, citing Insular Bank of Asia and America Employees' Union (IBAAEU) vs. Inciong, 132 SCRA 663, October 23, 1984.. [12]

Nestle Phil., Inc. vs. Court of Appeals, 203 SCRA 504, 510, November 13, 1991. [13]

Abaquin, supra, pp. 466-467.

[14]

In all, it has been sufficiently shown that respondent Commission acted in grave abuse of discretion by affirming the grant of retirement benefits to private respondent despite our pronouncements on the matter. WHEREFORE, hereby GRANTED and ASIDE. No costs.

the the

instant assailed

petition is Decision SET

[1]

Davide,

Jr.,

Approved on December 9, 1992.

[2]

Second Division, composed of Comm. Rustico L. Diokno, ponente, and Pres. Comm. Edna Bonto-Perez and Comm. Domingo H. Zapanta. [3]

Labor Arbiter Eduardo G. Magno.

[4]

Rollo, pp. 35-38.

[5]

Rollo, pp. 16-20.

[6]

190 SCRA 460, 465, October 15, 1990.

[7]

179 SCRA 175, 183-184, November 7, 1989.

[8]

See Balatbat vs. Court of Appeals, 205 SCRA 419, 426, January 27, 1992; also, Article 4, Civil Code. [9]

Republic SUPREME Manila

of

the

Philippines COURT

THIRD DIVISION

SO ORDERED. Narvasa, C.J., (Chairman), Melo, and Francisco, JJ., concur.

Re: Judge Alex Z. Reyes, 216 SCRA 720, 725, December 21, 1992, citing Borromeo vs. Civil Service Commission, 199 SCRA 924, (1991).

Balatbat vs. Court of Appeals, supra, citing Nilo vs. Court of Appeals, 128 SCRA 519, 525, April 2, 1984, in turn quoting Mr. Justice Moreland

G.R. No. 168617

February 19, 2007

BERNADETTE L. vs. CECILLE S. ABALOS, Respondent.

ADASA, petitioner,

DECISION

The instant case emanated from the two complaintsaffidavits filed by respondent Cecille S. Abalos on 18 January 2001 before the Office of the City Prosecutor of Iligan City, against petitioner for Estafa. Respondent alleged in the complaints-affidavits that petitioner, through deceit, received and encashed two checks issued in the name of respondent without respondent’s knowledge and consent and that despite repeated demands by the latter, petitioner failed and refused to pay the proceeds of the checks. On 23 March 2001, petitioner filed a counter-affidavit admitting that she received and encashed the two checks issued in favor of respondent. In her Supplemental Affidavit filed on 29 March 2001, petitioner, however, recanted and alleged instead that it was a certain Bebie Correa who received the two checks which are the subject matter of the complaints and encashed the same; and that said Bebie Correa left the country after misappropriating the proceeds of the checks. On 25 April 2001, a resolution was issued by the Office of the City Prosecutor of Iligan City finding probable cause against petitioner and ordering the filing of two separate Informations for Estafa Thru Falsification of Commercial Document by a Private Individual, under Article 315 in relation to Articles 171 and 172 of the Revised Penal Code, as amended.

CHICO-NAZARIO, J.: This Petition for Review under Rule 45 of the Rules of Court, filed by petitioner Bernadette L. Adasa, seeks to nullify and set aside the 21 July 2004 Decision1 and 10 June 2005 Resolution2 of the Court of Appeals in CA-G.R. SP No. 76396 which nullified the Resolutions of the Department of Justice (DOJ). The Resolutions of the DOJ reversed and set aside the Resolution of the Office of the City Prosecutor of Iligan City, which found on reinvestigation probable cause against petitioner, and directed the Office of the City Prosecutor of Iligan City to withdraw the information for Estafa against petitioner.

Consequently, two separate criminal cases were filed against petitioner docketed as Criminal Cases No. 8781 and No. 8782, raffled to Branches 4 and 5, Regional Trial Court of Iligan City, respectively. This instant petition pertains only to Criminal Case No. 8782. On 8 June 2001, upon motion of the petitioner, the trial court in Criminal Case No. 8782 issued an order directing the Office of the City Prosecutor of Iligan City to conduct a reinvestigation.

After conducting the reinvestigation, the Office of the City Prosecutor of Iligan City issued a resolution dated 30 August 2001, affirming the finding of probable cause against petitioner. Meanwhile, during her arraignment on 1 October 2001 in Criminal Case No. 8782, petitioner entered an unconditional plea of not guilty.3 Dissatisfied with the finding of the Office of the City Prosecutor of Iligan City, petitioner filed a Petition for Review before the DOJ on 15 October 2001. In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30 August 2001 resolution of the Office of the City Prosecutor of Iligan City and directed the said office to withdraw the Information for Estafa against petitioner. The said DOJ resolution prompted the Office of the City Prosecutor of Iligan City to file a "Motion to Withdraw Information" on 25 July 2002. On 26 July 2002, respondent filed a motion for reconsideration of said resolution of the DOJ arguing that the DOJ should have dismissed outright the petition for review since Section 7 of DOJ Circular No. 70 mandates that when an accused has already been arraigned and the aggrieved party files a petition for review before the DOJ, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course thereto, but instead deny it outright. Respondent claimed Section 12 thereof mentions arraignment as one of the grounds for the dismissal of the petition for review before the DOJ. In a resolution dated 30 January 2003, the DOJ denied the Motion for Reconsideration opining that under Section 12, in relation to Section 7, of DOJ Circular No. 70, the Secretary of Justice is not precluded from entertaining any appeal taken to him even where the accused has already been arraigned in court. This is due to the permissive language "may" utilized in Section 12 whereby the Secretary has the discretion to entertain an appealed resolution notwithstanding the fact that the accused has been arraigned.

Meanwhile, on 27 February 2003, the trial court issued an order granting petitioner’s "Motion to Withdraw Information" and dismissing Criminal Case No. 8782. No action was taken by respondent or any party of the case from the said order of dismissal. Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari before the Court of Appeals. Respondent raised the following issues before the appellate court: 1. Whether or not the Department of Justice gravely abused its discretion in giving due course to petitioner’s petition for review despite its having been filed after the latter had already been arraigned; 2. Whether or not there is probable cause that the crime of estafa has been committed and that petitioner is probably guilty thereof; 3. Whether or not the petition before the Court of Appeals has been rendered moot and academic by the order of the Regional Trial Court dismissing Criminal Case No. 8782. The Court of Appeals in a Decision dated 21 July 2004 granted respondent’s petition and reversed the Resolutions of the DOJ dated 11 July 2002 and 30 January 2003. In resolving the first issue, the Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70 which states "[i]f an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned," ruled that since petitioner was arraigned before she filed the petition for review with the DOJ, it was imperative for the DOJ to dismiss such petition. It added that when petitioner pleaded to the charge, she was deemed to have waived her right to reinvestigation and right to question any irregularity that surrounds it. Anent the second issue, the Court of Appeals declared that the existence of probable cause or the lack of it,

cannot be dealt with by it since factual issues are not proper subjects of a Petition for Certiorari. In disposing of the last issue, the Court of Appeals held that the order of the trial court dismissing the subject criminal case pursuant to the assailed resolutions of the DOJ did not render the petition moot and academic. It said that since the trial court’s order relied solely on the resolutions of the DOJ, said order is void as it violated the rule which enjoins the trial court to assess the evidence presented before it in a motion to dismiss and not to rely solely on the prosecutor’s averment that the Secretary of Justice had recommended the dismissal of the case. Dissatisfied by the Court of Appeals’ ruling, petitioner filed a Motion for Reconsideration setting forth the following grounds: 1. that the over-all language of Sections 7 and 12 of Department Circular No. 70 is permissive and directory such that the Secretary of Justice may entertain an appeal despite the fact that the accused had been arraigned; 2. that the contemporaneous construction by the Secretary of Justice should be given great weight and respect; 3. that Section 7 of the Circular applies only to resolutions rendered pursuant to a preliminary investigation, not on a reinvestigation; 4. that the trial court’s order of dismissal of the criminal case has rendered the instant petition moot and academic; 5. that her arraignment was null and void it being conducted despite her protestations; and 6. that despite her being arraigned, the supposed waiver of her right to preliminary investigation has been nullified or recalled by virtue of the trial court’s order of reinvestigation.4

The Court of Appeals stood firm by its decision. This time, however, it tried to construe Section 7 side by side with Section 12 of DOJ Circular No. 70 and attempted to reconcile these two provisions. According to the appellate court, the phrase "shall not" in paragraph two, first sentence of Section 7 of subject circular, to wit: If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. x x x. (Emphasis supplied.) employed in the circular denotes a positive prohibition. Applying the principle in statutory construction - that when a statute or provision contains words of positive prohibition, such as "shall not," "cannot," or "ought not" or which is couched in negative terms importing that the act shall not be done otherwise than designated, that statute or provision is mandatory, thus rendering the provision mandatory – it opined that the subject provision simply means that the Secretary of Justice has no other course of action but to deny or dismiss a petition before him when arraignment of an accused had already taken place prior to the filing of the petition for review. On the other hand, reading Section 12 of the same circular which reads: The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds:

files a petition for review, the Secretary of Justice cannot, and should not take cognizance of the petition, or even give due course thereto, but instead dismiss or deny it outright. The appellate court added that the word "may" in Section 12 should be read as "shall" or "must" since such construction is absolutely necessary to give effect to the apparent intention of the rule as gathered from the context. As to the contemporaneous construction of the Secretary of Justice, the Court of Appeals stated that the same should not be given weight since it was erroneous. Anent petitioner’s argument that Section 7 of the questioned circular applies only to original resolutions that brought about the filing of the corresponding informations in court, but not to resolutions rendered pursuant to a motion for reinvestigation, the appellate court simply brushed aside such contention as having no basis in the circular questioned. It also rejected petitioner’s protestation that her arraignment was forced upon her since she failed to present any evidence to substantiate the same. It is petitioner’s contention that despite her being arraigned, the supposed waiver of her right to preliminary investigation has been nullified by virtue of the trial court’s order or reinvestigation. On this score, the Court of Appeals rebuffed such argument stating that there was no "supposed waiver of preliminary investigation" to speak of for the reason that petitioner had actually undergone preliminary investigation.

xxxx (e) That the accused had already been arraigned when the appeal was taken; x x x.

Petitioner remained unconvinced with the explanations of the Court of Appeals. Hence, the instant petition.

the Court of Appeals opined that the permissive word "may" in Section 12 would seem to imply that the Secretary of Justice has discretion to entertain an appeal notwithstanding the fact that the accused has been arraigned. This provision should not be treated separately, but should be read in relation to Section 7. The two provisions, taken together, simply meant that when an accused was already arraigned when the aggrieved party

Again, petitioner contends that the DOJ can give due course to an appeal or petition for review despite its having been filed after the accused had already been arraigned. It asserts that the fact of arraignment of an accused before the filing of an appeal or petition for review before the DOJ "is not at all relevant" as the DOJ can still take cognizance of the appeal or Petition for Review before it. In support of

this contention, petitioner set her sights on the ruling of this Court in Crespo v. Mogul,5 to wit: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. (Emphasis supplied.) To bolster her position, petitioner cites Roberts v. Court of Appeals,6 which stated: There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. x x x. (Emphasis supplied.) Petitioner likewise invokes Marcelo Appeals7 where this Court declared:

v.

Court

of

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court.

The Court is unconvinced. A cursory reading of Crespo v. Mogul reveals that the ruling therein does not concern the issue of an appeal or petition for review before the DOJ after arraignment. Verily, the pronouncement therein has to do with the filing of a motion to dismiss and the court’s discretion to deny or grant the same. As correctly pointed out by respondent, the emphasized portion in the Crespo ruling is a parcel of the entire paragraph which relates to the duty and jurisdiction of the trial court to determine for itself whether or not to dismiss a case before it, and which states that such duty comes into play regardless of whether such motion is filed before or after arraignment and upon whose instructions. The allusion to the Secretary of Justice as reviewing the records of investigation and giving instructions for the filing of a motion to dismiss in the cited ruling does not take into consideration of whether the appeal or petition before the Secretary of Justice was filed after arraignment. Significantly, in the Crespo case, the accused had not yet been arraigned when the appeal or petition for review was filed before the DOJ. Undoubtedly, petitioner’s reliance on the said case is misplaced. Also unavailing is petitioner’s invocation of the cases of Roberts v. Court of Appeals and Marcelo v. Court of Appeals. As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo v. Court of Appeals took into account of whether the appeal or petition before the Secretary of Justice was filed after arraignment. Just like in the Crespo case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not yet been arraigned when the appeal or petition for review was filed before the DOJ. Moreover, petitioner asserts that the Court of Appeals’ interpretation of the provisions of DOJ Circular No. 70 violated three basic rules in statutory construction. First, the rule that the provision that appears last in the order of position in the rule or regulation must prevail. Second, the rule that the contemporaneous construction of a statute or regulation by the officers who enforce it should be given weight. Third, petitioner lifted a portion from Agpalo’s Statutory Construction8 where the word "shall" had been construed as a permissive, and not a mandatory language.

The all too-familiar rule in statutory construction, in this case, an administrative rule9 of procedure, is that when a statute or rule is clear and unambiguous, interpretation need not be resorted to.10 Since Section 7 of the subject circular clearly and categorically directs the DOJ to dismiss outright an appeal or a petition for review filed after arraignment, no resort to interpretation is necessary. Petitioner’s reliance to the statutory principle that "the last in order of position in the rule or regulation must prevail" is not applicable. In addition to the fact that Section 7 of DOJ Circular No. 70 needs no construction, the cited principle cannot apply because, as correctly observed by the Court of Appeals, there is no irreconcilable conflict between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the circular provides: SECTION 7. Action on the petition. – The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review. (Italics supplied.) On the other hand, Section 12 of the same circular states: SECTION 12. Disposition of the Appeal. – The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds: (a) That the petition was filed beyond the period prescribed in Section 3 hereof; (b) That the procedure or any of the requirements herein provided has not been complied with; (c) That there is no showing of any reversible error;

(d) That the appealed resolution is interlocutory in nature, except when it suspends the proceedings based on the alleged existence of a prejudicial question; (e) That the accused had already arraigned when the appeal was taken;

been

(f) That the offense has already prescribed; and (g) That other legal or factual grounds exist to warrant a dismissal. (Emphases supplied.) It is noteworthy that the principle cited by petitioner reveals that, to find application, the same presupposes that "one part of the statute cannot be reconciled or harmonized with another part without nullifying one in favor of the other." In the instant case, however, Section 7 is neither contradictory nor irreconcilable with Section 12. As can be seen above, Section 7 pertains to the action on the petition that the DOJ must take, while Section 12 enumerates the options the DOJ has with regard to the disposition of a petition for review or of an appeal. As aptly observed by respondent, Section 7 specifically applies to a situation on what the DOJ must do when confronted with an appeal or a petition for review that is either clearly without merit, manifestly intended to delay, or filed after an accused has already been arraigned, i.e., he may dismiss it outright if it is patently without merit or manifestly intended to delay, or, if it was filed after the acccused has already been arraigned, the Secretary shall not give it due course. Section 12 applies generally to the disposition of an appeal. Under said section, the DOJ may take any of four actions when disposing an appeal, namely: 1. reverse the appealed resolution; 2. modify the appealed resolution; 3. affirm the appealed resolution;

4. dismiss the appeal altogether, depending on the circumstances and incidents attendant thereto. As to the dismissal of a petition for review or an appeal, the grounds are provided for in Section 12 and, consequently, the DOJ must evaluate the pertinent circumstances and the facts of the case in order to determine which ground or grounds shall apply. Thus, when an accused has already been arraigned, the DOJ must not give the appeal or petition for review due course and must dismiss the same. This is bolstered by the fact that arraignment of the accused prior to the filing of the appeal or petition for review is set forth as one of the grounds for its dismissal. Therefore, in such instance, the DOJ, noting that the arraignment of an accused prior to the filing of an appeal or petition for review is a ground for dismissal under Section 12, must go back to Section 7 and act upon as mandated therein. In other words, the DOJ must not give due course to, and must necessarily dismiss, the appeal. Likewise, petitioner’s reliance on the principle of contemporary construction, i.e., the DOJ is not precluded from entertaining appeals where the accused had already been arraigned, because it exercises discretionary power, and because it promulgated itself the circular in question, is unpersuasive. As aptly ratiocinated by the Court of Appeals: True indeed is the principle that a contemporaneous interpretation or construction by the officers charged with the enforcement of the rules and regulations it promulgated is entitled to great weight by the court in the latter’s construction of such rules and regulations. That does not, however, make such a construction necessarily controlling or binding. For equally settled is the rule that courts may disregard contemporaneous construction in instances where the law or rule construed possesses no ambiguity, where the construction is clearly erroneous, where strong reason to the contrary exists, and where the court has previously given the statute a different interpretation.

If through misapprehension of law or a rule an executive or administrative officer called upon to implement it has erroneously applied or executed it, the error may be corrected when the true construction is ascertained. If a contemporaneous construction is found to be erroneous, the same must be declared null and void. Such principle should be as it is applied in the case at bar.11 Petitioner’s posture on a supposed exception to the mandatory import of the word "shall" is misplaced. It is petitioner’s view that the language of Section 12 is permissive and therefore the mandate in Section 7 has been transformed into a matter within the discretion of the DOJ. To support this stance, petitioner cites a portion of Agpalo’s Statutory Construction which reads: For instance, the word "shall" in Section 2 of Republic Act 304 which states that "banks or other financial institutions owned or controlled by the Government shall, subject to availability of funds xxx, accept at a discount at not more than two per centum for ten years such (backpay) certificate" implies not a mandatory, but a discretionary, meaning because of the phrase "subject to availability of funds." Similarly, the word "shall" in the provision to the effect that a corporation violating the corporation law "shall, upon such violation being proved, be dissolved by quo warranto proceedings" has been construed as "may."12 After a judicious scrutiny of the cited passage, it becomes apparent that the same is not applicable to the provision in question. In the cited passage, the word "shall" departed from its mandatory import connotation because it was connected to certain provisos/conditions: "subject to the availability of funds" and "upon such violation being proved." No such proviso/condition, however, can be found in Section 7 of the subject circular. Hence, the word "shall" retains its mandatory import. At this juncture, the Court of Appeals’ disquisition in this matter is enlightening: Indeed, if the intent of Department Circular No. 70 were to give the Secretary of Justice a discretionary power to dismiss or to entertain a petition for review despite its being outrightly dismissible, such as when the accused

has already been arraigned, or where the crime the accused is being charged with has already prescribed, or there is no reversible error that has been committed, or that there are legal or factual grounds warranting dismissal, the result would not only be incongruous but also irrational and even unjust. For then, the action of the Secretary of Justice of giving due course to the petition would serve no purpose and would only allow a great waste of time. Moreover, to give the second sentence of Section 12 in relation to its paragraph (e) a directory application would not only subvert the avowed objectives of the Circular, that is, for the expeditious and efficient administration of justice, but would also render its other mandatory provisions - Sections 3, 5, 6 and 7, nugatory.13 In her steadfast effort to champion her case, petitioner contends that the issue as to whether the DOJ rightfully entertained the instant case, despite the arraignment of the accused prior to its filing, has been rendered moot and academic with the order of dismissal by the trial court dated 27 February 2003. Such contention deserves scant consideration. It must be stressed that the trial court dismissed the case precisely because of the Resolutions of the DOJ after it had, in grave abuse of its discretion, took cognizance of the petition for review filed by petitioner. Having been rendered in grave abuse of its discretion, the Resolutions of the DOJ are void. As the order of dismissal of the trial court was made pursuant to the void Resolutions of the DOJ, said order was likewise void. The rule in this jurisdiction is that a void judgment is a complete nullity and without legal effect, and that all proceedings or actions founded thereon are themselves regarded as invalid and ineffective for any purpose.14 That respondent did not file a motion for reconsideration or appeal from the dismissal order of the trial court is of no moment. Since the dismissal was void, there was nothing for respondent to oppose. Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only to appeals from original resolution of the City Prosecutor and does not apply in the instant case where an appeal is interposed by petitioner from the Resolution of the City Prosecutor denying her motion for reinvestigation. This claim is baseless.1avvphi1.net

A reading of Section 7 discloses that there is no qualification given by the same provision to limit its application to appeals from original resolutions and not to resolutions on reinvestigation. Hence, the rule stating that "when the law does not distinguish, we must not distinguish"15 finds application in this regard. Petitioner asserts that her arraignment was null and void as the same was improvidently conducted. Again, this contention is without merit. Records reveal that petitioner’s arraignment was without any restriction, condition or reservation.16 In fact she was assisted by her counsels Atty. Arthur Abudiente and Atty. Maglinao when she pleaded to the charge.17 Moreover, the settled rule is that when an accused pleads to the charge, he is deemed to have waived the right to preliminary investigation and the right to question any irregularity that surrounds it.18 This precept is also applicable in cases of reinvestigation as well as in cases of review of such reinvestigation. In this case, when petitioner unconditionally pleaded to the charge, she effectively waived the reinvestigation of the case by the prosecutor as well as the right to appeal the result thereof to the DOJ Secretary. Thus, with the arraignment of the petitioner, the DOJ Secretary can no longer entertain the appeal or petition for review because petitioner had already waived or abandoned the same.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 21 July 2004 and its Resolution dated 10 June 2005 in CA-G.R. SP No. 76396 are AFFIRMED. Costs against petitioner.

REYNATO Chief Justice

S.

PUNO

SO ORDERED. Footnotes MINITA Associate Justice

V.

CHICO-NAZARIO 1

Penned by Associate Justice Edgardo A. Camello with Associate Justices Estela Perlas M. Bernabe and Arturo G. Tayag, concurring. Rollo, pp. 40-48.

WE CONCUR: CONSUELO Associate Chairperson

YNARES-SANTIAGO Justice

MA. ALICIA AUSTRIA- ROMEO J. CALLEJO, MARTINEZ SR. Associate Justice Asscociate Justice

2

Id. at 49-67.

3

Records, pp. 64-65.

4

Id. at 50.

5

On ANTONIO EDUARDO Associate Justice

B.

Leave NACHURA

G.R. No. L-53373, 30 June 1987, 151 SCRA 462, 471. 6

G.R. No. 113930, 5 March 1996, 254 SCRA 307, 330-332.

ATTESTATION 7

Lastly, while there is authority19 permitting the Court to make its own determination of probable cause, such, however, cannot be made applicable in the instant case. As earlier stated, the arraignment of petitioner constitutes a waiver of her right to preliminary investigation or reinvestigation. Such waiver is tantamount to a finding of probable cause. For this reason, there is no need for the Court to determine the existence or non-existence of probable cause.

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. CONSUELO Associate Chairperson, Third Division

YNARES-SANTIAGO Justice

CERTIFICATION Besides, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for review on certiorari since this Court is not a trier of facts. This being the case, this Court cannot review the evidence adduced by the parties before the prosecutor on the issue of the absence or presence of probable cause. 20

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

G.R. No. 106695, 4 August 1994, 235 SCRA 39, 48-49. 8

Agpalo, Statutory Construction (1990), pp. 240241, citing Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608, 611 (1952) and Government v. El Hogar Filipino, 50 Phil. 399 (1927). 9

When an administrative agency promulgates rules and regulations, it "makes" a new law with the force and effect of a valid law. (Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558 [1962].)

10

Rizal Commercial Banking Corporation v. Intermediate Appellate Court, G.R. No. 74851, 9 December 1999, 320 SCRA 279, 289. 11

Rollo, p. 58.

12

Supra note 5.

13

Rollo, p. 57.

SYLLABUS 1.

REMEDIAL LAW; CIVIL PROCEDURE; RULE ON FINALITY OF JUDGMENTS; EXCEPTIONS; WHERE CIRCUMSTANCES RENDER ITS EXECUTION IMPOSSIBLE. - The rule that once a judgment becomes final it can no longer be disturbed, altered, or modified is not an inflexible one. It admits of exceptions, as where facts and circumstances transpire after a judgment has become final and executory which render its execution impossible or unjust. In such a case the modification of the decision may be sought by the interested party and the court will modify and alter the judgment to harmonize it with justice and the facts.

2.

ID.; ID.; ID.; ID.; MODIFICATION OF JUDGMENT IN LABOR CASE APPROPRIATE AS WHERE CLAIM IN COMPANY NO LONGER FEASIBLE, EMPLOYEE CAN GO AFTER ITS OFFICERS. Modification of the judgment is appropriate considering that the company is no longer in operation and there is no showing that it has filed bankruptcy proceedings in which private respondent might file a claim and pursue her remedy under Article 110 of the Labor Code. Holding petitioner officer personally liable for the judgment in this case is eminently just and proper considering that, although the dispositive portion of the decision mentions only the “respondent company,” the text repeatedly mentions “respondents” in assessing liability for the illegal dismissal of private respondent. There can be no doubt of their personal liability. The mere happenstance that only the company is mentioned should not, therefore, be allowed to obscure the fact that in the text of the decision petitioner and her corespondents below were found guilty of having illegally dismissed private respondent and of claiming that private respondent’s employment was terminated because of retrenchment, when the truth was that she was dismissed for pregnancy. Hence they should be held personally liable for private respondent’s

14

Gorion v. Regional Trial Court of Cebu, Branch 17, G.R. No. 102131, 31 August 1992, 213 SCRA 138, 147. 15

Philippine Free Press, Inc. v. Court of Appeals, G.R. No. 132864, 24 October 2005, 473 SCRA 639, 662. 16

Records, pp. 64-65.

17

Id.

18

Kuizon v. Desierto, G.R. Nos. 140619-24, 9 March 2000, 354 SCRA 158, 176-177; Gonzales v. Court of Appeals, 343 Phil. 297, 304-305 (1997); People v. Baluran, 143 Phil. 36, 44 (1981). 19

Ark Travel Express, Inc. v. Abrogar, G.R. No. 137010, 29 August 2003, 410 SCRA 148, 159. 20

Chan v. Court of Appeals, G.R. No. 159922, 28 April 2005, 457 SCRA 502, 512.

SECOND DIVISION

[G.R. No. 98239. April 25, 1996]

reinstatement with backwages. “Indeed it is well said that to get the true intent and meaning of a decision, no specific portion thereof should be resorted to but same must be considered in its entirety.

CONSUELO VALDERRAMA, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, FIRST DIVISION AND MARIA ANDREA SAAVEDRA,respondents. 3.

LABOR LAW AND SOCIAL LEGISLATION; EMPLOYER CORPORATION AND ITS OFFICERS; LIABILITY. - Under the Labor Code, petitioner officer is herself considered an employer. In A. C. Ransom Labor Union-CCLU v. NLRC, we held: “Employer” includes any person acting in the interest of an employer, directly or indirectly. Since RANSOM is an artificial person, it must have an officer who can be presumed to be the employer, being the “person acting in the interest of (the) employer.” The corporation, only in the technical sense, is the employer. The responsible officer of an employer corporation can be held personally, not to say even criminally, liable for the non-payment of backwages. A corporation can only act through its officers and agents. Any decision against the company can be enforced against the officers in their personal capacities should the corporation fail to satisfy the judgment against it. “Where the employer corporation is no longer existing and [is] unable to satisfy the judgment in favor of the employee, the officer should be held liable for acting on behalf of the corporation.” In this case, documents show that petitioner controlled the company owning 1,993 of its 2,000 shares.

4.

ID.; TECHNICAL RULES OF PROCEDURE MAY BE DISREGARDED FOR THE PROTECTION OF LABOR. - There was really no amendment of the decision but only a clarification. But even if appeal was required in order to correct the error, in the interest of substantial justice, especially in cases involving rights of workers, the procedural lapse in this case may be disregarded.

APPEARANCES OF COUNSEL Chaves Hechanova Lim Law Offices for petitioner. Ramon A. Gonzales for private respondent. DECISION MENDOZA, J.:

On October 27, 1983, Maria Andrea Saavedra, herein private respondent, filed a complaint against the COMMODEX (Phils.), Inc., petitioner Consuelo Valderrama as owner, Tranquilino Valderrama as executive vice president and Jose Ma. Togle as vice president and general manager, for reinstatement and backwages.[1] On December 2, 1986, the Labor Arbiter rendered a decision, finding private respondent to have been illegally dismissed and holding the respondent COMMODEX liable. It was shown that private respondent had been dismissed from her employment due to her pregnancy, contrary to allegations of petitioner and her corespondents therein that the termination of her employment was due to redundancy and retrenchment.[2] The dispositive portion of the Labor Arbiter’s decision reads: WHEREFORE, judgment is hereby rendered ordering respondent company: 1. to reinstate complainant to her former position with full backwages at the rate of P1,474.00 per month from the date she was illegally dismissed on 16 March 1983 until actually reinstated without loss of seniority right and other benefits which she could have earned were it not for her illegal dismissal; 2. to pay complainant moral and exemplary damages in the amount of P20,000.00 and P5,000.00, respectively; and, 3. to pay complainant attorney’s fees equivalent to ten (10%) percent of the total award. A writ of execution was granted, but it was returned unsatisfied.[3] The sheriff reported that COMMODEX had ceased operation, while the individual officers, who were corespondents in the case, took the position that the writ could not be enforced against them on the ground that the dispositive portion of the decision mentioned only COMMODEX. Private respondent filed a Motion for Clarification in which she prayed:

WHEREFORE, it is most respectfully prayed that the dispositive part of the decision be clarified to read as follows: WHEREFORE, judgment is hereby ordering respondents jointly and severally:

rendered

1. to reinstate complainant to her former position with full backwages at the rate of P 1,474.00 per month from the date she was illegally dismissed on 16 March 1983 until actually reinstated without loss of seniority right and other benefits which she could have earned were it not for her illegal dismissal; 2. to pay complainant moral and exemplary damages in the amount of P20,000.00 and P5,000.00, respectively; and 3. to pay complainant attorney’s fee equivalent to ten (10%) percent of the total award. Private respondent contended that the body of the decision clearly held the petitioner and her corespondents therein to be liable and that [t]herefore, this Office is not precluded from correcting the inadvertence by clarifying the words “respondent company” which ought to have been “respondents jointly and severally” in order to make the fallo or dispositive part correspond or correlate with the body of the final decision, considering that the unjust dismissal of the complainant constitutes tort or quasidelict. (Article 2176, New Civil Code).

and corespondents therein] were included, hence said error or mistake can yet be corrected even if the decision is already final.”[5] On April 12, 1988, the Labor Arbiter, citing our ruling in A. C. Ransom Labor Union-CCLU v. NLRC,[6] which held the president of a corporation responsible and personally liable for payment of backwages, granted the private respondent’s motion and set it for hearing for reception of evidence of the relationship of the petitioner and her corespondents therein to COMMODEX. Private respondent then presented the Articles of Incorporation, List of Stockholders and the General Information Sheet of COMMODEX,[7] which showed that of the 2,000 shares of stocks of the corporation, Consuelo Valderrama owned 1,993[8] and that she was chairman of the board and president of respondent company.[9] On July 25, 1988, the Labor Arbiter declared petitioner Consuelo Valderrama liable for the payment of the monetary awards contained in the dispositive portion of the decision dated December 2, 1986,[10] thus: WHEREFORE, respondent Consuelo Valderrama, as Chairman of the Board and President of respondent COMMODEX (Phils.), Inc. who is originally impleaded is hereby deemed included as party respondent and she should, as she is hereby held liable for the awards to complainant Maria Andrea L. Saavedra. To obviate the further issuance of a Writ of Execution against her, she should, as she is hereby ordered to pay aforenamed complainant the monetary awards ordained in the Decision herein. SO ORDERED.

Petitioner and her corespondents therein filed an opposition to the motion for clarification. They contended that the decision of the Labor Arbiter had become final and executory and could no longer be amended.[4] In reply private respondent argued that no amendment of a final decision was being sought but only the correction of a mistake or a clarification of an ambiguity because “the exclusion [of the other respondents] in the dispositive part of the decision is merely a clerical error or mistake, since in the body of the decision they [petitioner

Petitioner appealed to the NLRC. In a resolution dated February 26, 1991, the First Division of the NLRC affirmed the Labor Arbiter’s order and dismissed the appeal for lack of merit.[11]Hence, this petition. Petitioner alleges that: 1. The Decision dated 02 December 1986 has become final and executory, and, hence, can no longer be substantially amended as to include liability on the part of

herein Petitioner, who was originally not named as liable in the dispositive portion of the said Decision; and 2. Petitioner cannot and should not be held personally liable jointly and severally with Commodex (Phils.), Inc. for the awards adjudged in favor of herein Private Respondent Saavedra. We find these contentions to be without merit. First. The rule that once a judgment becomes final it can no longer be disturbed, altered, or modified is not an inflexible one. It admits of exceptions, as where facts and circumstances transpire after a judgment has become final and executory which render its execution impossible or unjust. In such a case the modification of the decision may be sought by the interested party and the court will modify and alter the judgment to harmonize it with justice and the facts.[12] In the case at bar, modification of the judgment is appropriate considering that the company is no longer in operation and there is no showing that it has filed bankruptcy proceedings in which private respondent might file a claim and pursue her remedy under Article 110 of the Labor Code. Holding petitioner personally liable for the judgment in this case is eminently just and proper considering that, although the dispositive portion of the decision mentions only the “respondent company,” the text repeatedly mentions “respondents” in assessing liability for the illegal dismissal of private respondent. For indeed petitioner and others were respondents below and there can be no doubt of their personal liability. The mere happenstance that only the company is mentioned should not, therefore, be allowed to obscure the fact that in the text of the decision petitioner and her corespondents below were found guilty of having illegally dismissed private respondent and of claiming that private respondent’s employment was terminated because of retrenchment, when the truth was that she was dismissed for pregnancy. Hence they should be held personally liable for private respondent’s reinstatement with backwages.[13] “Indeed it is well said that to get the true intent and meaning of a decision, no specific portion thereof should be resorted to but same must be considered in its entirety (Escarella vs. Director of Lands, 83 Phil. 491; 46 Off. Gaz.

No. 11 p. 5487; I Moran’s Comments on the Rules of Court, 1957 ed., p. 478).”[14]

the law. In the Minimum Wage Law, Section 15 (b) provided:

Second. Not only is it clear by reference to the text of the decision of the Labor Arbiter that COMMODEX as well as its officers were being held liable so that no substantial amendment of the decision was really made by the Labor Arbiter in ordering petitioner to comply with that decision, but under the Labor Code, petitioner is herself considered an employer. In A. C. Ransom Labor UnionCCLU v. NLRC,[15] we held:

(b) If any violation of this Act is committed by a corporation, trust, partnership or association, the manager or in his default, the person acting as such when the violation took place, shall be responsible. In the case of a government corporation, the managing head shall be made responsible, except when shown that the violation was due to an act or commission of some other person, over whom he has no control, in which case the latter shall be held responsible.

(a) Article 265 of the Labor Code, in part, expressly provides:

In P.D. 525, where a corporation fails to pay the emergency allowance therein provided, the prescribed penalty “shall be imposed upon the guilty officer or officers” of the corporation.

Any worker whose employment has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Article 273 of the Code provides that: Any person violating any of the provisions of Article 265 of this Code shall be punished by a fine of not exceeding five hundred pesos and/or imprisonment for not less than one (1) day nor more than six (6) months. (b) How can the foregoing provisions be implemented when the employer is a corporation? The answer is found in Article 212 (c) of the Labor Code which provides: (c) “Employer” includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. The foregoing was culled from Section 2 of RA 602, the Minimum Wage Law. Since RANSOM is an artificial person, it must have an officer who can be presumed to be the employer, being the “person acting in the interest of (the) employer” RANSOM. The corporation, only in the technical sense, is the employer. The responsible officer of an employer corporation can be held personally, not to say even criminally, liable for the non-payment of back wages. That is the policy of

(c) If the policy of the law were otherwise, the corporation employer can have devious ways for evading payment of backwages. In the instant case, it would appear that RANSOM, in 1969, forseeing the possibility or probability of payment of backwages to the 22 strikers, organized ROSARIO to replace RANSOM, with the latter to be eventually phased out if the 22 strikers win their case. RANSOM actually ceased operations on May 1, 1973, after the December 19, 1972 Decision of the Court of Industrial Relations was promulgated against RANSOM. (d) The record does not clearly identify “the officer or officers” of RANSOM directly responsible for failure to pay the back wages of the 22 strikers: In the absence of definite proof in that regard, we believe it should be presumed that the responsible officer is the President of the corporation who can be deemed the chief operation officer thereof. Thus, in R.A. 602, criminal responsibility is with the “Manager or in his default, the person acting as such.” In RANSOM, the President appears to be the Manager. (e) Considering that non-payment of the back wages of the 22 strikers has been a continuing situation, it is our opinion that the personal liability of the RANSOM President, at the time the back wages were ordered to be paid should also be a continuing joint and several personal liabilities of all who may have thereafter succeeded to the office of president; otherwise the 22 strikers may be deprived of their rights by the election of a president without leviable assets.

Petitioner seeks to distinguish that case from the one at bar on the ground that the dispositive portion of the decision in that case actually ordered the “officers and agents” of A. C. Ransom to cease and desist from committing further acts of certain labor practice thus: IN VIEW OF ALL THE FOREGOING, . . . the A. C. Ransom Philippine Corporation is guilty of unfair labor practice of interference and discrimination hereinabove held and specified, ordering its officers and agentsto cease and desist from committing the same, finding the strike legal and justified; and to reinstate immediately . . . to their respective positions with backwages from July 25, 1969 until actually reinstated, without loss of seniority rights and other privileges appurtenant to their employment.[16] A corporation can only act through its officers and agents. That is why the cease and desist order was directed to the “officers and agents” of A. C. Ransom, which was actually found guilty of unfair labor practice. But that case clearly also holds that any decision against the company can be enforced against the officers in their personal capacities should the corporation fail to satisfy the judgment against it. The quoted portion of that decision explaining the basis for such ruling makes that clear. Agreeably with the ruling in A. C. Ransom Labor Union-CCLU it was held in another case that “where the Employer corporation is no longer existing and [is] unable to satisfy the judgment in favor of the employee, the officer should be held liable for acting on behalf of the corporation.”[17] Similarly it was held in Carmeicraft Corp. v. NLRC:[18] We also find untenable the contention of Carmen Yulo that she is not liable for the acts of the petitioner company, assuming it had acted illegally, because the Carmelcraft Corporation is a distinct and separate entity with a legal personality of its own. Yulo claims she is only an agent of the company carrying out the decisions of its board of directors. We do not agree. Our finding is that she is in fact and legal effect the corporation, being not only its president and general manager but also its owner. In this case, the documents presented by the private respondent show that petitioner controlled the company owning 1,993 of its 2,000 shares, with the rest of the stockholders owning only nominal amounts.

Third. Petitioner says the failure of private respondent to make a timely appeal bars her from enforcing the decision in her favor against her (petitioner) and the officers of the corporation because the decision of December 2, 1986 of the Labor Arbiter is now final and can no longer be amended.

[2]

Id.

[3]

Rollo, p. 30.

[4]

Rollo, p. 38.

[5]

Rollo, p. 41.

We have already explained that there was really no amendment of the decision but only a clarification. But even if appeal was required in order to correct the error, in the interest of substantial justice, especially in cases involving rights of workers, the procedural lapse in this case may be disregarded. As held in General Baptist Bible College v. NLRC:[19]

[6]

142 SCRA 269 (1986).

[7]

Rollo, p. 43.

[8]

Rollo, p. 53.

Technicalities have no room in labor cases, where the Rules of Court are applicable only in order to effectuate the objectives of the Labor Code and not to defeat them. The pertinent provisions of the Revised Rules of Court of the Philippines and prevailing jurisprudence may be applied by analogy or in a suppletory character to effect an expeditious resolution of labor controversies in a practical and convenient manner. We are inclined to overlook a procedural defect if only to promote substantial justice.

[10]

[9]

Order of Labor Arbiter Raymundo Valenzuela, pp. 4-5, Rollo, pp. 66-67.

[11]

Per Commissioner Romeo B. Putong and concurred in by Presiding Commissioner Bartolome S. Carale, and Commissioner Vicente S. E. Veloso III. [12]

Medado v. Court of Appeals, 185 SCRA 80 (1990); Mabuhay Vinyl Corp. v. NLRC, 214 SCRA 135 (1992); Sampaguita Garments Corp. v. NLRC, 233 SCRA 260(1994). [13]

General rules of procedure are merely suppletory in character vis-a-vis labor disputes which are primarily governed by labor laws.[20] Furthermore, as provided in Art. 4 of the Labor Code, “all doubts in the implementation and interpretation of this code, including its implementing rules and regulations shall be rendered in favor of labor.”[21] The rule that the NLRC may disregard technical rules of procedure in order to give life to the constitutional mandate for the protection of labor is well settled.[22] WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Regalado (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.

Rollo, pp. 63-68.

See Chua v. NLRC, 182 SCRA 353 (1990).

[14]

Policarpio v. P. V. B. and Associated Ins. & Surety Co., Inc., 106 Phil. 125, 131 (1959). [15]

Supra, note 6 at 273-75.

[16]

Petition, p. 10, Rollo, p. 11.

[17]

Gudez v. NLRC, 183 SCRA 645, 650(1990).

[18]

186 SCRA 393 (1990).

[19]

219 SCRA 549 (1993).

[20]

Art. 221 of the Labor Code.

[21]

Montoya v. Escayo, 171 SCRA 442 (1989).

[22]

Principe v. Philippine-Singapore Inc., 176 SCRA 514 (1989). SECOND DIVISION

[1]

Decision of Labor Arbiter Felipe Pati, p. 1; Rollo, p. 25.

Transport

Services,

[G.R. No. 98310. October 24, 1996]

(P10,000,000.00).[1] The incorporators/stockholders MIWPI, and their stock subscriptions were as follows: Name Subscribed

MATUGUINA INTEGRATED WOOD PRODUCTS, INC., petitioner, vs. The HON. COURT OF APPEALS, DAVAO ENTERPRISES CORPORATION, The HON. MINISTER, (NOW SECRETARY) of NATURAL RESOURCES AND PHILLIP CO, respondents. DECISION

The Regional Trial Court, Branch 17, Davao City, ruled in favor of the petitioner, but on appeal, was reversed by the respondent Court of Appeals in its decision dated February 25, 1991, which found MIWPI, as an alter ego of Milagros Matuguina and/or Matuguina Logging enterprises (MLE, to be liable to DAVENCOR for illegal encroachment. The following are the antecedent facts: On June 28, 1973, the Acting Director of the Bureau of Forest Development issued Provisional Timber License (PTL) No. 30, covering an area of 5,400 hectares to Ms. Milagros Matuguina who was then doing business under the name of MLE, a sole proprietorship venture. A portion, covering 1,900 hectares, of the said area was located within the territorial boundary of Gov. Generoso in Mati, Davao Oriental, and adjoined the timber concession of Davao Enterprises Corporation (DAVENCOR), the private respondent in this case. On July 10, 1974, petitioner Matuguina Integrated Wood Products, Inc. (MIWPI), was incorporated, having an authorized capital stock of Ten Million Pesos

Matuguina, thus giving her seventy percent (70%) stock ownership of MIWPI.

No. Of Shares Amount of Capital

In an undated letter[2] to the Director of Forest Development (BFD) on November 26, 1974, Milagros Matuguina requested the Director for a change of name and transfer of management of PTL No. 30, from a single proprietorship under her name, to that of MIWPI.

Stock Subscribed 1. Henry Wee 2. Matuguina

TORRES, JR., J.: Matuguina Integrated Wood Products Inc. (MIWPI, for brevity) filed this action for prohibition, Damages and Injunction, in order to prevent the respondent Minister (now Secretary) of Natural Resources from enforcing its Order of Execution against it, for liability arising from an alleged encroachment of the petitioner over the timber concession of respondent DAVENCOR located in Mati, Davao Oriental.

of

1,160,000 1,160,000.00 Ma. 400,000 400,000.00

Milagros

3. Alejandro Chun 200,000 200,000.00 4. Bernadita Chua 5. Domingo Herrera 6. Manuel Hernaez 7. Luis Valderama

Chua

This request was favorably endorsed on December 2, 1974[3] by the BFD’s Acting Director, Jose Viado to respondent Secretary of Natural Resources, who approved the same onSeptember 5, 1975.[4] On July 17, 1975, Milagros Matuguina and petitioner MIWPI executed a Deed of Transfer[5] transferring all of the former’s rights, interests, ownership and participation in Provincial Timber License No. 30 to the latter for and in consideration of 148,000 shares of stocks in MIWPI. A copy of said deed was submitted to the Director of Forest Development and Petitioner MIWPI had since been acting as holder and licensee of PTL No. 30.

120,000 120,000.00

On July 28, 1975, pending approval of the request to transfer the PTL to MIWPI, DAVENCOR, through its Assistant General Manager, complained to the District Forester at Mati, Davao Oriental that Milagros Matuguina/MLE had encroached into and was conducting logging operations in DAVENCOR’s timber concession.

40,000 40,000.00 40,000 40,000.00 40,000 40,000.00 ---------------------------------2,000,000 2,000,000.00 =========== ===========

Milagros Matuguina became the majority stockholder of MIWPI on September 24, 1974, when the latter’s Board of Directors approved by Resolution the transfer of 1,000,000 shares from Henry Wee to Milagros

After investigation of DAVENCOR’s complaint, the Investigating Committee which looked into DAVENCOR’s complaint submitted its report to the Director, finding that MLE had encroached on the concession area of DAVENCOR. In line with this, the Director of Forest Development issued an Order[6] on July 15, 1981, finding and declaring MLE to have encroached upon, and conducted illegal logging operations within the licensed or concession area of DAVENCOR. MLE appealed the Order to the Ministry of Natural Resources, which appeal was docketed as MNR CASE No. 6450. During the pendency of the appealed case with the Minister of Natural Resources, Ma. Milagros Matuguina disposed of her shares in petitioner MIWPI, thereby ceasing to be a stockholder of the petitioner of March 16, 1986.[7]

On October 1, 1986, The Minister of Natural Resources, Hon. Ernesto M. Maceda rendered his Decision,[8] affirming the aforesaid order of the Director of Forest Development, stating thus: DECISION “For our Resolution is the appeal by MATUGUINA LOGGING ENTERPRISES (MLR, for short) of the Order dated 15 July 1991 of the Director of Forest Development finding and declaring MLE to have encroached upon, and conducted illegal logging operations within the license or concession area of DAVAO ENTERPRISES CORPORATION. The aforesaid Order dispositively states: “WHEREFORE, there being a clear and convincing proof that Matuguina Conducted illegal operation within the licensed area of DAVENCOR, above named respondent is hereby ordered to pay to the complainant the equivalent value in pesos of 2,352.04 cubic meters of timber based on the market price obtaining, at the logpond of the respondent at the time of cutting, minus the cost of production, or to restitute to the complainant equal volume of 2,352.04 cubic meters of logs owned by respondent to be taken at respondent’s logpond. The respondent is hereby directed to comply with this Order within a period of ninety (90) days from receipt of this Order and after the lapse of the said period, no compliance has been made by the respondent, its logging operations shall ipso facto become automatically suspended until respondent shall have complied as directed. The Regional Director of Region II, Davao City is hereby instructed to implement this Order and to submit his compliance report within ten (10) days after the lapse of the ninety (90) days period within which the respondent is directed to comply with this order.” And that the dispositive portion of the said decision states; “WHEREFORE, the Order dated 15 July 1981 of the Director of Forest Development is hereby AFFIRMED.”

When the Decision of the Minister of Natural Resources became final and executory, Philip Co and DAVENCOR requested the respondent Minister on October 30, 1986 to issue immediately a writ of execution against MLE and/or MIWPI.[9] The Order of Execution[10] was issued on January 6, 1987 by the Minister through the latter’s Assistant on Legal Affairs. The said Order directed the issuance of a writ of execution, not only against MLE, but likewise against MIWPI. The dispositive portion of the order provides: “WHEREFORE, let a Writ of Execution be issued against Matuguina Logging Enterprises and/or Matuguina Integrated Wood Products, Inc. For the satisfaction of the Decision of the Bureau of Forest Development dated15 July 1981, and the Order of this office dated 1 October 1986. SO ORDERED.” Subsequently, a writ of execution[11] dated January 8, 1987 was issued in favor of the respondent DAVENCOR, which states: “The City/Provincial Sheriff Davao City GREETINGS: You are hereby directed to enforce, implement and execute the Order of Execution dated 06 June 1987 of this Office in the above-entitled case against Matuguina Logging Enterprises and/or Matuguina Integrated Wood Products, Inc. its officers or any person or corporation in its behalf and conformably with the Order dated 15 July 1981 of the Director of Forest Development, stating dispositively. xxx You are hereby requested to submit your return to this Office within the period of sixty (60) days from your receipt hereof as to action taken hereon.

SO ORDERED." On February 11, 1987, MIWPI filed the instant complaint[12] for prohibition, damages and injunction, with prayer for restraining order, which case was docketed as Civil Case No. 18,457-87 in the Regional Trial Court – Davao City, Branch 17. MIWPI stated its primary cause of action, the relevant portion of which reads, viz.: “5. That plaintiff which has a distinct and separate personality of its own under the law, and was never a party to the case between DAVENCOR and MLE, suddenly became a party to the case after the decision became final and executory with the issuance of Annex “B” hereof for reasons known to the defendants alone: 6. That the issuance of Annex ‘B’ hereof (the order of execution) by the defendant Minister has been made not only without or in excess of his authority but that the same was issued patently without any factual or legal basis, hence, a gross violation of plaintiff’s constitutional rights under the due process clause; 7. That plaintiff, in the face of the order (Annex ‘B’) complained of, there being no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, does not have any alternative but to ventilate the present recourse; 8. That defendant Minister is doing, threatens or is about to do, or is procuring or suffering to be done, some act which definitely is in violation of the plaintiff’s rights respecting the subject matter of the action, and unless said act or acts are restrained or prohibited at least during the pendency of this case, said act or acts would probably work not only injustice to plaintiff but world tend to render the judgment of this Honorable court ineffectual; 9. That the commission or continuance of the acts complained of during the present litigation would not only cause great and irreparable injury, but will also work injustice to the plaintiff, and would complicate, aggravate and multiply the issues in this case; 10. That the plaintiff is entitled to the relief demanded, and the whole or part of such relief consist in restraining the

commission or continuance of the acts complained of, or in the performance of acts, either for a limited period or perpetually; 11. That great and irreparable injury would inevitably result to the plaintiff before the matter can be heard on notice, hence, immediate issuance of a restraining order is necessary and proper; 12. That the plaintiff is willing and able to file the necessary bond executed to the defendants, in an amount to be fixed by the Court, to the effect that the plaintiff will pay to the defendants all damages which they may sustain by reason of the injunction if the court should finally decide that the plaintiff was not entitled thereto.” MIWPI, likewise alleges that in wantonly and imprudently procuring the Writ of Execution against it, which DAVENCOR and Philip Co seek to enforce a 2.5 Million Peso liability of plaintiff, the latter has been constrained to bring the present action, thereby incurring damages in the sum of P500,000.00 in concept of actual and compensatory damages, and P250,000.00 in attorney’s fees, which amount petitioner now seeks to recover. The trial court issued a temporary restraining order the next day, February 12, 1987, restraining and/or enjoining the private respondents and the Hon. Secretary of Natural Resources from enforcing, implementing and/or carrying into effect, the decision of the respondent Secretary dated October 1, 1986, as well as the order of execution dated January 6, 1987. On February 17, 1987, private respondent filed a Motion to Dismiss[13] alleging that the trial court had no jurisdiction over the case under Presidential Decree No. 705, to which Motion to Dismiss, petitioner filed an Opposition[14] dated February 1987. On March 9, 1987, the trial court issued an order[15] denying private respondent’s Motion to Dismiss. Hence, private respondents filed their Answer[16] dated March 13, 1987 and an Amended Answer[17] In the latter pleading, private respondents raised the following special and affirmative defenses:

“7. That neither Milagros Matuguina nor Matuguina Integrated Wood Products, Inc. advised defendant Davencor of the change of name, and transfer of management of PTL No. 30. From Milagros Matuguina to Matuguina Integrated Wood Products, Inc., during the pendency of MNR Case No. 6540 before the Bureau of Forest Develoment and the Ministry of Natural Resources, notwithstanding that the lawyer of matuguina Integrated Wood Products, Inc., who was also a stockholder thereof, had appeared for Milagros Matuguina in said administrative case. 8. That plaintiff has acted in bad faith and is now in estoppel from questioning the Writ of Execution issued against Milagros Matuguina (now Matuguina Integrated Wood Products, Inc.) to satisfy the judgment in MNR Case No. 6540. 9. This Honorable Court has no jurisdiction over the nature and subject matter of this action, especially because: (a)

The plaintiff has not exhausted administrative remedies available to it before initiating this action;

(b)

In the guise of entertaining an action for damages, this Court is being misled by the plaintiff into deciding questions properly for the Department of Natural Resources to decide exclusively in the lawful exercise of its regulatory jurisdiction;

(c)

The plaintiff is now precluded and estopped from filing this action.

10. The plaintiff has no cause of action against the defendants and has not stated any in its complaint, especially because: (a)

Having failed to exhaust administrative remedies, plaintiff is without a ripe cause of action that can be pleaded before this Honorable Court;

(b)

In substance, there is no justifiable question raised under the facts and circumstances of this case.

Meanwhile, on June 2, 1987, the trial court issued an order[18] granting the petitioner’s prayer for the issuance of a writ of preliminary injunction against the private respondents and the Secretary of Natural Resources, ordering them to desist, refrain and prevent from enforcing respondent Secretary’s Decision dated October 1, 1986 as well as the writ of execution dated January 8, 1987. On May 10, 1989, the trial court rendered its Decison[19] in favor of the petitioner, disposing of the action as follows: “WHEREFORE, in view of the foregoing, finding the evidence of plaintiff, Matuguina Integrated Wood Products, Inc. sufficient to sustain a preponderance of evidence, showing that the order of execution dated January 6, 1987, issued by the Minister of Natural Resources, through Alexander C. Castro, Assistant Minister for Legal Affairs, included therein, plaintiff Matuguina Integrated Wood Products, Inc., despite non-inclusion of plaintiff in the decision of the then Minister of Natural Resources, dated October 1, 1986, already final and executory before the issuance of the order and execution, said order or execution is hereby declared null and void and without any legal effect. As a consequence thereof, the writ of preliminary injunction issued by this court, dated June 2, 1987 is hereby made permanent. Moreover, as a result of the filing of this case, defendant Philip Co and Davencor Corporation, are ordered to jointly and severally pay the amount of P100,000.00 as actual and compensatory damages, along with another amount of P20,000.00 as attorney’s fees and costs of this action, in favor of plaintiff Matuguina Integrated Wood Products, Inc. SO ORDERED.” Private respondents appealed the trial court’s decision on May 19, 1989. Their notice of appeal was

approved by the trial court. The appealed case was docketed with respondent Honorable Court of Appeals as CA-G.R. SP No. 19887. On February 25, 1991, the respondent Court rendered its Decision,[20] reversing the lower court’s pronouncement. The dispositive portion of the decision reads: “WHEREFORE, premises considered, the decision appealed from is reversed and set aside and the Order of Execution issued by the Minister of Natural Resources dated January 6, 1987 is affirmed. Without pronouncement as to costs. SO ORDERED.”

THE FAILURE TO AFFORD PETITIONER THE OPPORTUNITY TO BE HEARD IN THE ADMINISTRATIVE LEVEL (MNR CASE NO. 6540) COULD NOT HAVE BEEN CURED BY THE INSTITUTION OF THE ACTION FOR PROHIBITION IN THE TRIAL COURT BECAUSE SAID COURT HAD NO JURISDICTION TO DETERMINE WHETHER PETITIONER WAS GUILTY OF ENCROACHMENT ON PRIVATE RESPONDENT DAVENCOR’S TIMBER CONCESSION; FURTHERMORE, THE QUESTION ON WHETHER PETITIONER WAS GUILTY OF ENCROACHMENT WAS NEVER PUT IN ISSUE IN THE CASE BEFORE THE TRIAL COURT.

SECRETARY RESOURCES. B.

Not content with the court’s pronouncement, petitioner is now before us on a Petition for Review on Certiorari,[24] alleging that the respondent court acted with grave abuse of discretion in rendering the questioned decision and its companion resolution, denying the motion for reconsideration. The reasons relied upon by the Petitioner in filing its petition are hereby restated:

1.

SAID TRANSFER WAS EXECUTED PRIOR TO THE COMMISSION OF THE ALLEGED ENCROACHMENT AND THE FILING OF THE ADMINISTRATIVE COMPLAINT FOR ENCROACHMENT DATED 28 JULY 1975; THUS, PETITIONER CANNOT BE MADE LIABLE FOR OBLIGATONS OF MILAGROS/MLE WHICH WERE INCURRED AFTER DATE OF THE SAID TRANSFER.

I

2.

SAID TRANSFER COVERED ONLY FORESTRY CHARGES AND OTHER GOVERNMENT FEES, AND DID NOT INCLUDE THE PERSONAL LIABILITY OF MILAGROS/MLE THAT AROSE FROM THE ENCROACHMENT OF THE TIMBER CONCESSION OF RESPONDENT DAVENCOR.[25]

PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN IT WAS MADE LIABLE BY RESPONDENT SECRETARY OF NATURAL RESOURCES IN HIS ORDER OF EXECUTION DATED 06 JANUARY 1987 (EXHIBIT “B” OF ATTACHMENT “O”) ISSUED IN MNR CASE NO. 6540 DESPITE THE FACT THAT PETITIONER WAS NEVER A PARTY NOR A PARTICIPANT IN THE SAID CASE: IN FACT, PETITIONER NEVER HAD NOTICE OF THE PROCEEDINGS IN MNR CASE NO. 6540. II

THE LIABILITY OF MILAGROS/MLE AS FOUND BY RESPONDENT SECRETARY IN ITS DECISION DATED 01 OCTOBER 1986 (EXHIBIT “A” OF THE ATTACHMENT “0”) CANNOT BE IMPUTED AGAINST PETITIONER SINCE THE LATTER IS A CORPORATION HAVING A PERSONALITY SEPARATE AND DISTINCT FROM MILAGROS/MLE. IV PETITIONER CANNOT BE MADE LIABLE TO PRIVATE RESPONDENTS UNDER THE DEED OF TRANSFER DATED 18 JULY 1975 (EXHIBIT “3” OF ATTACHMENT “P”) AND SECTION 61 OF THE REVISED FORESTRY CODE OF THE PHILIPPINES (P.D. 705, AS AMENDED): A.

THE ALLEGED TRANSFER OF PTL NO. 30 FROM MILAGROS/MLE TO PETITIONER NEVER BECAME BINDING AND EFFECTIVE SINCE PTL NO. 30 REMAINED IN THE NAME OF MILAGROS/MLE UNTIL ITS EXPIRATION ON 30 JUNE 1977: THIS IS DUE TO THE FACT THAT SAID TRANSFER WAS NEVER APPROVED BY THE

NATURAL

GRANTING ARGUENDO THAT THERE WAS AN EFFECTIVE TRANSFER OF PTL NO. 30 FROM MILAGROS/MLE TO PETITIONER, THE TRANSFER COULD NOT MAKE PETITIONER LIABLE FOR THE ALLEGED ENCROACHMENT OF PRIVATE RESPONDENT DAVENCOR’S TIMBER CONCESSION, SINCE:

III In due time, petitioner filed a motion for reconsideration.[21] Private respondents filed their opposition[22] to the same on April 2, 1991. In a Resolution[23] dated April 12, 1991, the motion was denied by the respondent Court.

OF

Private Respondent DAVENCOR and the public respondent Hon. Minister (now Secretary) of Natural

Resources filed separate Comments[26] on September 5, 1991 and June 8, 1992 respectively. The essential issues of the present controversy boil down to the following: Was the Petitioner denied due process when it was adjudged liable with MLE for encroaching upon the timber concession of DAVENCOR in the respondent Minister's order of Execution? Is the petitioner a transferee of MLE's interest, as to make it liable for the latter’s illegal logging operations in DAVENCOR’s timber concession, or more specifically, is it possible to pierce the veil of MIWPI’s corporate existence, making it a mere conduit or successor of MLE? Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by judgment rendered by the court. In the same manner an execution can be issued only against a party and not against one who did not have his day in court. In Lorenzo vs. Cayetano, 78 SCRA 485 [1987], this Court held that only real parties in interest in an action are bound by judgment therein and by writs of execution and demolition issued pursuant thereto.[27] Indeed a judgment cannot bind persons who are not parties to the action.[28] It is elementary that strangers to a case are not bound by the judgment rendered by the court and such judgment is not available as an adjudication either against or in favor of such other person. A decision of a court will not operate to divest the rights of a person who has not and has never been a party to a litigation, either as plaintiff or as defendant. Execution of a judgment can only be issued against one who is a party to the action, and not against one who, not being a party in the action has not yet had his day in court.[29] The writ of execution must conform to the judgment which is to be executed, as it may not vary the terms of the judgment it seeks to enforce.[30] Nor may it go beyond the terms of the judgment which sought to be executed. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it has pro tanto no validity. To maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.[31]

The writ of execution issued by the Secretary of Natural Resources on January 8, 1987 clearly varies the term of his Decision of October 1, 1986, inasmuch as the Writ includes the MIWPI as party liable whereas the Decision only mentions Milagros Matuguina/MLE.

“Nevertheless, the failure to comply with the procedure in order to satisfy the requirements of due process was cured by the present action for prohibition where the liability of appellee has been ventilated.”

There is no basis for the issuance of the Order of Execution against the petitioner. The same was issued without giving the petitioner an opportunity to defend itself and oppose the request of DAVENCOR for the issuance of a writ of execution against it. In fact, it does not appear that petitioner was at all furnished with a copy of DAVENCOR’s letter requesting for the Execution of the Honorable Secretary’s decision against it. Petitioner was suddenly made liable upon the order of execution by the respondent Secretary’s expedient conclusions that MLE and MIWPI are one and the same, apparently on the basis merely of DAVENCOR’s letter requesting for the Order, and without hearing or impleading MIWPI. Until the issuance of the Order of execution, petitioner was not included or mentioned in the proceedings as having any participation in the encroachment in DAVENCOR’s timber concession. This action of the respondent Secretary disregards the most basic tenets of due process and elementary fairness.

We do not agree. Essentially, Prohibition is a remedy to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law[35] As we held in Mafinco Trading Corporation vs. Ople, et al,[36] in a certiorari or prohibition case, only issues affecting the jurisdiction of the tribunal, board and offices involved may be resolved on the basis of undisputed facts.

The liberal atmosphere which pervades the procedure in administrative proceedings does not empower the presiding officer to make conclusions of fact before hearing all the parties concerned.[32] In Police Commission vs. Hon Judge Lood,[33] we held that the formalities usually attendant in court hearings need not be present in an administrative investigation, provided that the parties are heard and given the opportunity to adduce their evidence. The right to notice and hearing is essential to due process and its non-observance will, as a rule, invalidate the administrative proceedings. As observed by the appellate court, to wit: “the appellant should have filed a Motion with the Minister with Notice to the appellee to include the latter as party liable for the judgment in order to afford the appellee an opportunity to be heard on its liability for the judgment rendered against Ma. Milagros Matuguina doing business under the name Matuguina Logging Enterprises.[34] Continuing, the said court stated further that:

The issue of whether or not petitioner is an alter ego of Milagros Matuguina/MLE, is one of fact, and which should have been threshed out in the administrative proceedings, and not in the prohibition proceedings in the trial court, where it is precisely the failure of the respondent Minister of Natural Resources to proceed as mandated by law in the execution of its order which is under scrutiny. Assuming, arguendo, that prohibition is the proper remedy for determining the propriety of piercing the separate personality of petitioner with its stockholders, the evidence presented at said trial does not warrant such action. It is settled that a corporation is clothed with a personality separate and distinct from that of persons composing it. It may not generally be held liable for that of the persons composing it. It may not be held liable for the personal indebtedness of its stockholders or those of the entities connected with it. Conversely, a stockholder cannot be made to answer for any of its financial obligations even if he should be its president.[37] But when the juridical personality of the corporation is used to defeat public convenience, justify wrong, protect fraud or defend crime, the corporation shall be considered as a mere association of persons (Koppel, Inc. vs. Yatco, 77 Phil 496, Palay, Inc. vs. Clave, G.R. No. 56076, September 21, 1983, 124 SCRA 638), and its responsible officers and/or stockholders shall be individually liable (Namarco vs. Associated Finance Co., Inc., G.R. No. L- 20886, April 27, 1967, 19 SCRA 962). For the same reasons, a corporation shall be liable for the obligations of a stockholder (Palacio vs. Fely Transportation Co., G.R. No. L-15121, August 31, 1963, 5 SCRA 1011), or a corporation

and its successor-in-interest shall be considered as one and the liability of the former attach to the latter.[38] But for the separate juridical personality of a corporation to be disregarded, the wrongdoing must be clearly and convincingly established. It cannot be presumed.[39] In the case at bar, there is, insufficient basis for the appellate court’s ruling that MIWPI is the same as Matuguina. The trial court’s observation is enlightening. “Despite apparently opposing evidence of both parties, the Court gathered and finds, that defendant’s attempt to pierce the veil of corporate personality of plaintiff corporation, as to consider plaintiff corporations merely an adjunct or alter ego of Maria Milagros Matuguina Logging Enterprises, to justify defendants claim against plaintiff corporation, suffers heavily from insufficiency of evidence. It is the vehement contention of defendants, to bolster its claim, that plaintiff corporation is the alter ego of Maria Milagros Matuguina Logging Enterprises, because when Milagros Matuguina became the Chairman of the Board of Directors of plaintiff corporation, she requested for the change of name and transfer of management of PTL No. 30, from her single proprietorship, to plaintiff corporation. Secondly, when Milagros Matuguina executed the deed of transfer, transferring her forest concession under PTL No, 30, together with all the structures and improvements therein, to plaintiff corporation, for a consideration of P14,800.00 representing 148,000 shares of stocks of plaintiff corporation actually all existing shares of stocks of Milagros Matuguina, in plaintiff corporation represents 77.4% therein; suffice to say that plaintiff corporation practically became an alter ego of Milagros Matuguina. Defendants’ arguments on this peripheral aspect of corporate existence, do not at all indicate that such a legal fiction, was granted. In the first place the alleged control of plaintiff corporation was not evident in any particular corporate acts of plaintiff corporation, wherein Maria Milagros Matuguina Logging

Enterprises using plaintiff corporation, executed acts or powers directly involving plaintiff corporation. Neither was there any evidence of defendants, that Maria Milagros Matuguina Logging Enterprises, using the facilities and resources of plaintiff corporation, involved itself in transaction using both single proprietorship and plaintiff corporation in such particular line of business undertakings. As stated by this court in resolving plaintiff’s prayer for issuance of a writ of preliminary injunction, said: ‘There is actually, no evidence presented by defendant, showing that sometime on March 15, 1986, to January 1987, during which period, the subject decision of Hon. Secretary of Natural Resources and corresponding writ of execution, Maria Milagros Matuguina was a stockholder of plaintiff corporation in such amount or was she an officer of plaintiff corporation in whatever capacity.’ The above circumstances is relevant and significant to assume any such justification of including plaintiff corporation in the subject writ of execution, otherwise as maintained by defendants, what matters most was the control of Milagros Matuguina Logging Enterprises of plaintiff corporation in 1974 and 1975, when the administrative case was pending, this circumstance alone without formally including plaintiff corporation in said case, will not create any valid and sufficient justification for plaintiff corporation, to have been supposedly included in the suit against defendants and Maria Milagros Matuguina Logging Enterprises, in the administrative case. Yet, granting as claimed by defendants, that in 1974 or in 1975, Maria Milagros Matuguina became the controlling stockholder of plaintiff corporation, on account of the change of name and transfer of management of PTL No. 30, this circumstance, we repeat, does not of itself prove that plaintiff corporation was the alter ego of Maria Milagros Matuguina Logging Enterprise, as enunciated in various decisions of this Court, to wit: ‘It is important to bear in mind that mere ownership by a single stockholder or by another corporation of all or nearly

all of the capital stocks of the corporation, is not itself a sufficient warrant for disregarding the fiction of separate personality. (Liddel and Co. vs. Collector of Internal revenue, G.R. No. 9687, June 30, 1961).’ It is recognized as lawful to obtain a corporation charter, even with a single substantial stockholder, to engage in specific activity and such activity may co-exist with other private activities of the stockholders. If the corporation is substantial one, conducted lawfully; without fraud on another, its separate identity is to be respected.[40] In this jurisdiction, it is a settled rule that conclusions and findings of fact by trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of the witnesses while testifying in the case.[41] It is likewise improper to state that the MIWPI is the privy or the successor-in-interest of MLE, as the liability for the encroachment over DAVENCOR’s timber concession is concerned, by reason of the transfer of interest in PTL No. 30 from MLE to MIWPI. First at all, it does not appear indubitable that the said transfer ever became effective, since PTL No. 30 remained in the name of Milagros Matuguina/MLE until it expired on June 30, 1977.[42] More importantly, even if it is deemed that there was a valid change of name and transfer of interest in the PTL No. 30, this only signifies a transfer of authority, from MLE to MIWPI, to conduct logging operations in the area covered by PTL No. 30. It does not show indubitable proof that MIWPI was a mere conduit or successor of Milagros Matuguina/MLE, as far the latter’s liability for the encroachment upon DAVENCOR’s concession is concerned. This is the only conclusion which we can discern from the language of Section 61 of P.D. 705,[43] and the letters of the Acting Minister of Natural Resources to Milagros Matuguina/MLE and to MIWPI, on September 16, 1975.[44] In Soriano vs. Court of Appeals, this Court stated in clear language, that-

“It is the general rule that the protective mantle of a corporation’s separate and distinct personality could only be pierced and liability attached directly to its officers and/or members – stockholders, when the same is used for fraudulent, unfair, or illegal purpose. In the case at bar, there is no showing that the Association entered into the transaction with the private respondent for the purpose of defrauding the latter of his goods or the payment thereof. xxx. Therefore, the general rule on corporate liability, not the exception, should be applied in resolving this case. (G.R. No. 49834, June 22, 1989) The respondents cite Section 61 of P.D. 705 to establish MIWPI’s succession to the liability of Milagros Matuguina/MLE: “SEC. 61. Transfer. –Unless authorized by the Department Head, no licensee, lessee, or permittee may transfer, exchange, sell, or convey his license agreement, license, lease or permit, or any of his rights or interest therein, or any of his assets used in connection therewith. The licensee, lessee, or permittee shall be allowed to transfer or convey his license agreement, license, lease, or permit only if he has not violated any forestry law, rule or regulation; has been faithfully complying with the terms and conditions of the license agreement, license, lease or permit; the transferee has all the qualifications and none of the disqualifications to hold a license agreement, license, lease or permit; there is no evidence that such transfer or conveyance is being made for purposes of speculation; and the transferee shall assume all the obligations of the transferor. The transferor shall forever be barred from acquiring another license agreement, license, lease or permit.” Even if it is mandated in the abovestated provision that “the transferee shall assume all the obligations of the transferor” this does not mean that all obligations are assumed, indiscriminately. Invariably, it is not the letter, but the spirit of the law and intent of the legislature that is important. When the interpretation of a statute according to the exact and literal import of its words would lead to absurdity, it should be

construed according to the spirit and reason, disregarding if necessary the letter of the law.[45]

affording the same an opportunity to be heard before it was adjudged liable.

In construing statutes, the terms used therein are generally to be given their ordinary meaning, that is, such meaning which is ascribed to them when they are commonly used, to the end that absurdity in the law must be avoided.[46] The term “obligations” as used in the final clause of the second paragraph of Section 61 of P.D. 705 is construed to mean those obligations incurred by the transferor in the ordinary course of business. It cannot be construed to mean those obligations or liabilities incurred by the transferor as a result of transgressions of the law, as these are personal obligations of the transferor, and could not have been included in the term “obligations” absent any modifying provision to that effect.

(b) The petitioner is a corporate entity separate and distinct from Milagros Matuguina/Matuguina Logging Enterprises, there being no clear basis for considering it as a mere conduit or alter ego of Matuguina/MLE, and therefore, cannot be made liable for the obligations of the same for encroachment over the timber concession of private respondent DAVENCOR.

In the September 16, 1975 letters of Acting Director of the Bureau of Forest Development to Milagros Matuguina and MIWPI informing them of the approval of Matuguina's request for the change of name and transfer of management of PTL No. 30, the following statements were made by the Acting Director: "In view hereof, (Matuguina Integrated Wood Products, Inc.) shall assume the responsibility of paying whatever pending liabilities and/or accounts remaining unsettled, if any, by the former licensee, Milagros Matuguina, with the government." (Emphasis ours)[47] Accordingly, the letter's language implies that the obligations which MIWPI are to assume as transferee of Milagros Matuguina/MLE are those obligations in favor of the government only, and not to any other entity. Thus this would include Forestry Charges, Taxes, Fees, and similar accountabilities. In sum, the pronouncements:

Court

makes

the

following

(a) The respondent Honorable Minister of Natural Resources gravely abuse its discretion when it issued its Order of Execution on January 6, 1987, including therein as one of the parties liable the petitioner Matuguina Integrated Wood Products, Inc., which was never a party to the assailed proceeding resulting in the issuance of such Order and, without

IN VIEW OF THE FOREGOING, the petition is hereby GRANTED, and the Decision dated February 25, 1991 is SET ASIDE. The decision of the Regional Trial Court is hereby REINSTATED, and correspondingly, Order of Execution of the respondent Secretary of Natural Resources is declared Null and Void and without effect. No pronouncement as to cost. SO ORDERED. Regalado (Chairman), Puno, and Mendoza, JJ., concur.

[1]

Romero,

Articles of Incorporation of MIWPI are on p. 232 of Rollo. Rollo, p. 222. [3] Ibid., p. 227. [4] Ibid., p. 228. [5] Ibid., p. 250. [6] Infra. [7] Rollo, p. 194. [8] Ibid., p. 172. [9] Ibid., 188. [10] Ibid., 93. [11] Ibid., 191. [12] Ibid., p. 77. [13] Ibid., p. 102. [14] Ibid., p. 106. [15] Ibid., p. 109. [16] Ibid., p. 117. [17] Ibid., p. 159.17 dated July 16, 1987 [18] Ibid, p. 122. [19] Ibid., p. 309. [20] Ibid., p. 63. [21] Ibid., p. 383. [22] Ibid., p. 388. [2]

[23]

Ibid., p. 72. Ibid., p. 10. [25] Petition, Rollo, 26. [26] Comment of DAVENCOR, Rollo, p. 409; Comment of respondent Minister (Secretary) of Natural Resources, Rollo, p. 497. [27] Vda. De Medina vs. Hon Fernando A. Cruz, etc., G.R. No. L-39272, May 4, 1988, 161 SCRA 36. [28] Buazon, et. al. vs. Court of appeals, et. al., G.R. No. 97749, March 19, 1993, 220 SCRA 182. [29] St Dominic Corp. vs. Intermediate Appellate Court, etc., G.R., Nos. L-70623, L-48630, June 30, 1987, 151 SCRA 577. [30] Buan vs. court of Appeals, et al., G.R. No. 101614, August 17, 1994, 235 SCRA 424. [31] Moran, M., Comments on the Rules of Court, 1979 ed., vol. 2, p. 278. [32] Ang Tibay vs. Court of Industrial Relations, 69 Phil 635. [33] G.R. No. 34637, February 24, 1984, 127 SCRA 757. [34] RTC Decision, supra. [35] 3 Moran, p. 183. [36] G.R. No. L-37790, March 25, 1976, 70 SCRA 139. [37] Laperal Development Corporation vs. Court of Appeals, G.R. No. 96354, June 8, 1993, 223 SCRA 261. [38] Koppel vs. Yatco, supra; Liddell & Co. vs. CIR, G.R. No. L-9687, June 30, 1961, 2 SCRA 632. [39] Del Rosario vs. NLRC, G.R. No. 85416, July 24, 1990, 187 SCRA 777. [40] RTC Decision, supra. [41] Bael, et al., vs. IAC, et al., G.R. No. 74423, January 30, 1989, 169 SCRA 617. [42] See BFD Certification to that effect, Rollo, p. 193. [43] 71 O.G. No. 28, 4289, July 14, 1975. [44] Rollo, pp. 229-230. [45] Lopez vs. Court of Tax Appeals, G.R. No. 9274, February 1, 1957, 100 Phil 850. [46] 82 C.J.S. p. 639, cited in Martin R., Stutory Construction, 1979 ed., p. 83. [47] Rollo, pp. 229-230. [24]

FIRST DIVISION

[G.R. No. 134298. August 26, 1999]

RAMON C. TAN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

Rosita Lim, which he knew or should have known to have been derived from the proceeds of the crime of theft.

DECISION

Contrary to law.”

PARDO, J.: The case before the Court is an appeal via certiorari from a decision of the Court of * Appeals affirming that of the Regional Trial Court of Manila, Branch 19,** convicting petitioner of the crime of fencing. Complainant Rosita Lim is the proprietor of Bueno Metal Industries, located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of manufacturing propellers or spare parts for boats. Manuelito Mendez was one of the employees working for her. Sometime in February 1991, Manuelito Mendez left the employ of the company. Complainant Lim noticed that some of the welding rods, propellers and boat spare parts, such as bronze and stainless propellers and brass screws were missing. She conducted an inventory and discovered that propellers and stocks valued at P48,000.00, more or less, were missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez, of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he admitted that he and his companion Gaudencio Dayop stole from the complainant’s warehouse some boat spare parts such as bronze and stainless propellers and brass screws. Manuelito Mendez asked for complainant’s forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the stolen items and who paid the amount of P13,000.00, in cash to Mendez and Dayop, and they split the amount with one another. Complainant did not file a case against Manuelito Mendez and Gaudencio Dayop. On relation of complainant Lim, an Assistant City Prosecutor of Manila filed with the Regional Trial Court, Manila, Branch 19, an information against petitioner charging him with violation of Presidential Decree No. 1612 (Anti-Fencing Law) committed as follows: “That on or about the last week of February 1991, in the City of Manila, Philippines, the said accused, did then and there wilfully, unlawfully and feloniously knowingly receive, keep, acquire and possess several spare parts and items for fishing boats all valued at P48,130.00 belonging to

Upon arraignment on November 23, 1992, petitioner Ramon C. Tan pleaded not guilty to the crime charged and waived pre-trial. To prove the accusation, the prosecution presented the testimonies of complainant Rosita Lim, Victor Sy and the confessed thief, Manuelito Mendez. On the other hand, the defense presented Rosita Lim and Manuelito Mendez as hostile witnesses and petitioner himself. The testimonies of the witnesses were summarized by the trial court in its decision, as follows: “ROSITA LIM stated that she is the owner of Bueno Metal Industries, engaged in the business of manufacturing propellers, bushings, welding rods, among others (Exhibits A, A-1, and B). That sometime in February 1991, after one of her employees left the company, she discovered that some of the manufactured spare parts were missing, so that on February 19, 1991, an inventory was conducted and it was found that some welding rods and propellers, among others, worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the person who recommended Mr. Mendez to her. Subsequently, Mr. Mendez was arrested in the Visayas, and upon arrival in Manila, admitted to his having stolen the missing spare parts sold then to Ramon Tan. She then talked to Mr. Tan, who denied having bought the same. When presented on rebuttal, she stated that some of their stocks were bought under the name of Asia Pacific, the guarantor of their Industrial Welding Corporation, and stated further that whether the stocks are bought under the name of the said corporation or under the name of William Tan, her husband, all of these items were actually delivered to the store at 3012-3014 Jose Abad Santos Street and all paid by her husband. That for about one (1) year, there existed a business relationship between her husband and Mr. Tan. Mr. Tan used to buy from them stocks of propellers while they likewise bought from the former brass woods, and that

there is no reason whatsoever why she has to frame up Mr. Tan. MANUELITO MENDEZ stated that he worked as helper at Bueno Metal Industries from November 1990 up to February 1991. That sometime in the third week of February 1991, together with Gaudencio Dayop, his coemployee, they took from the warehouse of Rosita Lim some boat spare parts, such as bronze and stainless propellers, brass screws, etc. They delivered said stolen items to Ramon Tan, who paid for them in cash in the amount of P13,000.00. After taking his share (one-half (1/2) of the amount), he went home directly to the province. When he received a letter from his uncle, Victor Sy, he decided to return to Manila. He was then accompanied by his uncle to see Mrs. Lim, from whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he executed an affidavit prepared by a certain Perlas, a CIS personnel, subscribed to before a Notary Public (Exhibits C and C-1). VICTORY [sic] SY stated that he knows both Manuelito Mendez and Mrs. Rosita Lim, the former being the nephew of his wife while the latter is his auntie. That sometime in February 1991, his auntie called up and informed him about the spare parts stolen from the warehouse by Manuelito Mendez. So that he sent his son to Cebu and requested his kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest and bring Mendez back to Manila. When Mr. Mendez was brought to Manila, together with Supt. Perlas of the WPDC, they fetched Mr. Mendez from the pier after which they proceeded to the house of his auntie. Mr. Mendez admitted to him having stolen the missing items and sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr. Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but when confronted, Mr. Tan denied the same. ROSITA LIM, when called to testify as a hostile witness, narrated that she owns Bueno Metal Industries located at 301 Jose Abad Santos Street, Tondo, Manila. That two (2) days after Manuelito Mendez and Gaudencio Dayop left, her husband, William Tan, conducted an inventory and discovered that some of the spare parts worth P48,000.00 were missing. Some of the missing items were under the name of Asia Pacific and William Tan.

MANUELITO MENDEZ, likewise, when called to testify as a hostile witness, stated that he received a subpoena in the Visayas from the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on April 8, 1991. That he consented to come to Manila to ask forgiveness from Rosita Lim. That in connection with this case, he executed an affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS personnel, and the contents thereof were explained to him by Rosita Lim before he signed the same before Atty. Jose Tayo, a Notary Public, at Magnolia House, Carriedo, Manila (Exhibits C and C-1). That usually, it was the secretary of Mr. Tan who accepted the items delivered to Ramon Hardware. Further, he stated that the stolen items from the warehouse were placed in a sack and he talked to Mr. Tan first over the phone before he delivered the spare parts. It was Mr. Tan himself who accepted the stolen items in the morning at about 7:00 to 8:00 o’clock and paid P13,000.00 for them.

“WHEREFORE, premises considered, the accused RAMON C. TAN is hereby found guilty beyond reasonable doubt of violating the Anti-Fencing Law of 1979, otherwise known as Presidential Decree No. 1612, and sentences him to suffer the penalty of imprisonment of SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision mayor and to indemnify Rosita Lim the value of the stolen merchandise purchased by him in the sum of P18,000.00. “Costs against the accused. “SO ORDERED. “Manila, Philippines, August 5, 1996. “(s/t) ZENAIDA R. DAGUNA “Judge”

RAMON TAN, the accused, in exculpation, stated that he is a businessman engaged in selling hardware (marine spare parts) at 944 Espeleta Street, Sta. Cruz, Manila. He denied having bought the stolen spare parts worth P48,000.00 for he never talked nor met Manuelito Mendez, the confessed thief. That further the two (2) receipts presented by Mrs. Lim are not under her name and the other two (2) are under the name of William Tan, the husband, all in all amounting to P18,000.00. Besides, the incident was not reported to the police (Exhibits 1 to 1g). He likewise denied having talked to Manuelito Mendez over the phone on the day of the delivery of the stolen items and could not have accepted the said items personally for everytime (sic) goods are delivered to his store, the same are being accepted by his staff. It is not possible for him to be at his office at about 7:00 to 8:00 o’clock in the morning, because he usually reported to his office at 9:00 o’clock. In connection with this case, he executed a counter-affidavit (Exhibits 2 and 2-a).[1] On August 5, 1996, the trial court rendered decision, the dispositive portion of which reads:

Petitioner appealed to the Court of Appeals. After due proceedings, on January 29, 1998, the Court of Appeals rendered decision finding no error in the judgment appealed from, and affirming the same in toto. In due time, petitioner filed with the Court of Appeals a motion for reconsideration; however, on June 16, 1998, the Court of Appeals denied the motion. Hence, this petition. The issue raised is whether or not the prosecution has successfully established the elements of fencing as against petitioner.[2] We resolve the issue in favor of petitioner. “Fencing, as defined in Section 2 of P.D. No. 1612 is ‘the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.’”[3]

“Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon things.”[4] The crime of theft is committed if the taking is without violence against or intimidation of persons nor force upon things.[5] “The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft.”[6] Before the enactment of P. D. No. 1612 in 1979, the fence could only be prosecuted as an accessory after the fact of robbery or theft, as the term is defined in Article 19 of the Revised Penal Code, but the penalty was light as it was two (2) degrees lower than that prescribed for the principal.[7] P. D. No. 1612 was enacted to “impose heavy penalties on persons who profit by the effects of the crimes of robbery and theft.” Evidently, the accessory in the crimes of robbery and theft could be prosecuted as such under the Revised Penal Code or under P.D. No. 1612. However, in the latter case, the accused ceases to be a mere accessory but becomes a principal in the crime of fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and fencing, on the other, are separate and distinct offenses.[8] The State may thus choose to prosecute him either under the Revised Penal Code or P. D. No. 1612, although the preference for the latter would seem inevitable considering that fencing is malum prohibitum, and P. D. No. 1612 creates a presumption of fencing[9] and prescribes a higher penalty based on the value of the property.[10] In Dizon-Pamintuan vs. People of the Philippines, we set out the essential elements of the crime of fencing as follows: “1. A crime of robbery or theft has been committed; “2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any

article, item, object or anything of value, which has been derived from the proceeds of the said crime; “3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and “4. There is on the part of the accused, intent to gain for himself or for another.”[11] Consequently, “the prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged.” [12] Short of evidence establishing beyond reasonable doubt the existence of the essential elements of fencing, there can be no conviction for such offense. [13] “It is an ancient principle of our penal system that no one shall be found guilty of crime except upon proof beyond reasonable doubt (Perez vs. Sandiganbayan, 180 SCRA 9).”[14] In this case, what was the evidence of the commission of theft independently of fencing? Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, a crime of robbery or theft has been committed. There was no sufficient proof of the unlawful taking of another’s property. True, witness Mendez admitted in an extra-judicial confession that he sold the boat parts he had pilfered from complainant to petitioner. However, an admission or confession acknowledging guilt of an offense may be given in evidence only against the person admitting or confessing.[15] Even on this, if given extrajudicially, the confessant must have the assistance of

counsel; otherwise, the admission would be inadmissible in evidence against the person so admitting.[16] Here, the extra-judicial confession of witness Mendez was not given with the assistance of counsel, hence, inadmissible against the witness. Neither may such extra-judicial confession be considered evidence against accused.[17] There must be corroboration by evidence of corpus delicti to sustain a finding of guilt.[18]Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.”[19] The “essential elements of theft are (1) the taking of personal property; (2) the property belongs to another; (3) the taking away was done with intent of gain; (4) the taking away was done without the consent of the owner; and (5) the taking away is accomplished without violence or intimidation against persons or force upon things (U. S. vs. De Vera, 43 Phil. 1000).”[20] In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking.[21] In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti.[22] What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold to him. “One is deemed to know a particular fact if he has the cognizance, consciousness or awareness thereof, or is aware of the existence of something, or has the acquaintance with facts, or if he has something within the mind’s grasp with certitude and clarity. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence unless he actually believes that it does not exist. On the other hand, the words “should know” denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists. Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must determine such knowledge with care from the overt acts of that person. And given two equally

plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence.”[23] Without petitioner knowing that he acquired stolen articles, he can not be guilty of “fencing”.[24] Consequently, the prosecution has failed to establish the essential elements of fencing, and thus petitioner is entitled to an acquittal. WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals in CA-G.R. CR. No. 20059 and hereby ACQUITS petitioner of the offense charged in Criminal Case No. 92-108222 of the Regional Trial Court, Manila.

[9] [10] [11]

Section 5, P. D. No. 1612.

IN THE MATTER OF THE PETITION FOR DECLARATORY JUDGMENT REGARDING THE VALIDITY OF ORDINANCE NO. 386 OF THE CITY OF BAGUIO, BAGUIO CITIZENS ACTION INC., and JUNIOR CHAMBER OF BAGUIO CITY, INC., petitionersappellants, vs. THE CITY COUNCIL AND CITY MAYOR OF THE CITY OF BAGUIO, respondents-appellees.

Section 3, P.D. No. 1612. 234 SCRA 63, on p. 72 [1994].

[12]

People vs. Aranda, 226 SCRA 562 [1993].

[13]

People vs. Escalona, 227 SCRA 325 [1993].

[14]

People vs. Escalona, supra, on p. 328.

[15]

People vs. Januario, 335 Phil. 268 [1997].

[16]

People vs. Januario, supra.

[17]

People vs. Alegre, 94 SCRA 109 [1979].

DE CASTRO, J:

[18]

People vs. de la Cruz, 279 SCRA 245, 256 [1997], citing People vs. Lorenzo, 240 SCRA 624 [1995].

Costs de oficio. SO ORDERED.

[19]

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

Puno,

People vs. Roluna, 231 SCRA 446, 452 [1997]; People vs. Madlangbayan, 94 SCRA 685 [1979]; People vs. Taruc, 16 SCRA 834, 837 [1966].

In this petition for declaratory relief originally filed in the Court of First Instance of Baguio, Branch II, what is involved is the validity of Ordinance 386 passed by the City Council of Baguio City which took effect on February 23, 1967, quoted together with the explanatory note, as follows:

[20]

*

In CA-G.R. CR No. 20059, promulgated on January 29, 1998, Montoya, J., ponente, Vidallon-Magtolis and Cosico, JJ., concurring.* ** In Criminal Case No. 92-108222, decision dated August 5, 1996, Judge Zenaida R. Daguna, presiding.**

People vs. Rodrigo, 123 Phil. 310, 312-313 [1966]; Santos vs. People, 181 SCRA 487, 492 [1990]; Abundo vs. Sandiganbayan, 205 SCRA 193, 196 [1992]. [21]

Moreno, Philippine Law Dictionary, Third Edition, 1988, p. 218. [22]

People vs. de la Cruz, supra.

[23]

[1]

Rollo, pp. 69-71.

[2]

Petition, Rollo, p. 11.

Dizon-Pamintuan vs. People of the Philippines, supra., on pp.73-74, citing Diong-an vs. Court of Appeals, 138 SCRA 39 [1985]. [24]

Cf. Aquino, The Revised Penal Code, Vol. III, 1988 ed. p. 212; People vs. de Guzman, supra.

[3]

Dizon-Pamintuan vs. People, 234 SCRA 63, 71 [1994]; People vs. de Guzman, 227 SCRA 64, 67 [1993]. [4]

Article 293, Revised Penal Code; People vs. de Guzman, supra, on p. 67. [5]

Article 308, Revised Penal Code.

[6]

People vs. de Guzman, supra, on p. 68.

[7]

Dizon-Pamintuan vs. People, supra.

[8]

People vs. de Guzman,, supra.

Republic SUPREME Manila

of

EN BANC G.R. No. L-27247 April 20, 1983

the

Philippines COURT

ORDINANCE 386 AN ORDINANCE CONSIDERING ALL SQUATTERS OF PUBLIC LAND, OTHER THAN THOSE EARMARKED FOR PUBLIC USE IN THE CITY OF BAGUIO WHO ARE DULY REGISTERED AS SUCH AT THE TIME OF THE PROMULGATION OF THIS ORDINANCE AS BONAFIDE OCCUPANTS OF THEIR RESPECTIVE LOTS AND WHICH SHALL HEREAFTER BE EMBRACED AS A CITY GOVERNMENT HOUSING PROJECT AND PROVIDING FOR OTHER PURPOSES. Upon strong recommendation of the Vice-Mayor and Presiding Officer, on Motion of all the Councilors, seconded by the same, be it ordained by the City Council assembled:

Section l.—All public lands within Baguio townsite which are occupied by squatters who are duly registered as such at the time of the promulgation of this Ordinance such public lands not designated by city and national authorities for public use, shall be considered as embraced and comprising a City Government Housing Project; PROVIDED, HOWEVER, That areas covered by Executive Orders or Presidential Proclamations but the city had made official representation for the lifting of such orders or proclamation shall be deemed to be part of the Baguio Townsite for the purposes of this ordinance; Section 2.—Building permits shall have been deemed issued to all squatters as contemplated by this Ordinance, giving such squatters five years from the approval of this Ordinance to satisfactorily comply with city building specifications and payment of the corresponding city building permit fees; Section 3.—All cases pending in court against squatters be dropped without prejudice to the full prosecution of all subsequent violations in relation to the provisions of existing city ordinances and/or resolutions; Section 4.—All squatters be given all the necessary and needed protection of the City Government against the stringent provisions of the Public Land Act, particularly on public bidding, in that the lots occupied by said squatters be awarded to them by direct sale through Presidential Proclamation;

Section 5.—The City Government shall not be interested in making financial profit out of the project and that the appraisal and evaluation of the said lots shall be made at minimum cost per square meters, the total cost of the lots made payable within the period of ten years; Section 6.—The minimum lot area requirements shall be disregarded in cases where it could not be implemented due to existing congestion of houses, and that, if necessary, areas applied for under this ordinance shall be reduced to that which is practical under the circumstances; PROVIDED, HOWEVER, That squatters in congested areas shall be given preference in the transfer to resettlement areas or government housing projects earmarked as such under the provisions of this ordinance, if and when it becomes necessary to ease congestion or when their lots shall be traversed by the laying of roads or are needed for public use; Section 7.—The amount of P20,000.00 or so much as is necessary, for the lot survey of each squatter's lot be appropriated, such survey of which shall be conducted by licensed private surveyors through public biddings; PROVIDED, That, said expenses for survey shall be included in the overall cost of each lot; Section 8.—The three-man control committed for the Quirino-Magsaysay housing project which was previously created under City Ordinance No. 344, shall exercise administration and supervision of the city government housing projects created under this Ordinance shall, furthermore, be

entrusted with the duty of: (1) Consolidating a list of all city squatters who shall be benefitted in contemplation and under the provisions of this Ordinance; (2) To assist and help the squatters in the preparation of all the necessary and required paper work and relative items in connection with their application over their respective lots; (3) To seek and locate other areas within the Baguio Townsite conveniently situated and which will be earmarked as subsequently housing projects of the city for landless bonafide city residents; and (4) To carry out and implement the provisions of this Ordinance without the least possible delay. EXPLANATORY NOTE This ordinance is primarily designed to extend a helping hand to the numerous landless city residents and the called 'Squatters' within the Baguio Townsite in their desire to acquire residential lots which they may rightly call their own. The reported people who have violated the City's building ordinances were not so guarded by any criminal perversity, but where given to it more by circumstances of necessity and that they are, therefore, entitled to a more human treatment, more of understanding and more of pity rather than be herded before the courts, likened to hardened criminals and deliberate violators of our laws and ordinances. PRESENT AND VOTING:

Hon. Norberto de Guzman — Vice Mayor Presiding Officer Hon. Gaudencio Floresca — Councilor Hon. Jose S. Florendo — Councilor Hon. Francisco G. Mayo — Councilor Hon. Braulio D. Yaranon — Councilor Hon. Sinforoso Fañgonil — Councilor The petition for declaratory relief filed with the Court of First Instance of Baguio, Branch II, prays for a judgment declaring the Ordinance as invalid and illegal ab initio. The respondents-appellees, the City Council and the City Mayor, filed motions to dismiss the petition which were denied. Nonetheless, in the decision thereafter rendered, the petition was dismissed on the grounds that: 1) another court, the Court of First Instance of Baguio, Branch I, had declared the Ordinance valid in a criminal case filed against the squatters for illegal construction, and the Branch II of the same court cannot, in a declaratory proceeding, review and determine the validity of said judgment pursuant to the policy of judicial respect and stability; 2) those who come within the protection of the ordinance have not been made parties to the suit in accordance with Section 2 of Rule 64 and it has been held that the non-joinder of such parties is a jurisdictional defect; and 3) the court is clothed with discretion to refuse to make any declaration where the declaration is not necessary and proper at the time under all circumstances, e.g. where the declaration would be of no practical help in ending the controversy or would not stabilize the disputed legal relation, citing Section 5 of Rule 64; ICJS 1033-1034; 16 AM. JUR 287-289; Hoskyns vs. National City Bank of New York, 85 Phil. 201. Hence, the instant appeal which was perfected in accordance with the provisions of Rule 42, before the approval of Republic Act No. 5440 on September 9, 1968. 1. The case before the Court of First Instance of Baguio, Branch 1, dealt with the criminal liability of the accused for constructing their houses without obtaining building permits, contrary to Section 47 in relation to Section 52 of the Revised Ordinances of Baguio, which act the said court considered as pardoned by Section 2 of Ordinance 386. The court in said case upheld the power of the Municipal Council to legalize the acts punished by the aforesaid provisions of the Revised Ordinances of Baguio,

stating that the Municipal Council is the policy determining body of Baguio City and therefore it can amend, repeal, alter or modify its own laws as it did when it enacted Ordinance 386. In deciding the case, the first branch of the court a quo did not declare the whole Ordinance valid. This is clear when it stated that "had the issue been the legalization of illegal occupation of public land, covered by Republic Act No. 947, ... the Ordinance in question should have been ultra vires and unconstitutional." 1 Said court merely confined itself to Sections 2 and 3 of Ordinance 386. It did not make any definite pronouncement whether or not the City Council has the power to legalize the illegal occupation of public land which is the issue in the instant case. It is noteworthy that the court, in passing upon the validity of the aforesaid sections, was apparently guided by the rule that where part of a statute is void as repugnant to the organic law, while another part is valid, the valid portion, if separable from the invalid may stand and be enforced. Contrary to what was said in the decision under review, the second branch of the court a quo was not called upon to determine the validity of the judgment of the first branch. 2. The non-inclusion of the squatters mentioned in the Ordinance in question as party defendants in this case cannot defeat the jurisdiction of the Court of First Instance of Baguio. There is nothing in Section 2 of Rule 64 of the Rules of Court which says that the non-joinder of persons who have or claim any interest which would be affected by the declaration is a jurisdictional defect. Said section merely states that "All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except or otherwise provided in these rules, prejudice the rights of persons not parties to the action." This section contemplates a situation where there are other persons who would be affected by the declaration, but were not impleaded as necessary parties, in which case the declaration shall not prejudice them. If at all, the case may be dismissed not on the ground of lack of jurisdiction but for the reason stated in Section 5 of the same Rule stating that "the Court may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or any case where the declaration or construction is not necessary and proper at the time under all circumstances."

It must be noted that the reason for the law requiring the joinder of all necessary parties is that failure to do so would deprive the declaration of the final and pacifying function the action for declaratory relief is calculated to subserve, as they would not be bound by the declaration and may raise the Identical issue. 2 In the case at bar, although it is true that any declaration by the court would affect the squatters, the latter are not necessary parties because the question involved is the power of the Municipal Council to enact the Ordinances in question. Whether or not they are impleaded, any determination of the controversy would be binding upon the squatters. A different situation obtains in the case of Degala v. Reyes 3 cited in the decision under review. The Degala case involves the validity of the trust created in the will of the testator. In the said case, the Roman Catholic Church which was a necessary party, being the one which would be most vitally affected by the declaration of the nullity of the will was not brought in as party. The Court therefore, refused to make any declaratory judgment on ground of jurisdictional defect, for there can be no final judgment that could be rendered and the Roman Catholic not being bound by such judgment might raise the Identical issue, making therefore the declaration a mere exercise in futility. This is not true in the instant case. A declaration on the nullity of the ordinance, would give the squatters no right which they are entitled to protect. The party most interested to sustain and defend the legality of the Ordinance is the body that passed it, the City Council, and together with the City Mayor, is already a party in these proceedings. 3. The Ordinance in question is a patent nullity. It considered all squatters of public land in the City of Baguio as bona-fide occupants of their respective lots. As we have stated in City of Manila v. Garcia, 4 et al.: Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into a lawful act. In principle, a compound of illegal entry and official permit to stay is obnoxious to our concept of proper official norm of conduct. Because,

such permit does not serve social justice; it fosters moral decadence. It does not promote public welfare; it abets disrespect for the law. It has its roots in vice; so it is an infected bargain. Official approval of squatting should not, therefore, be permitted to obtain in this country where there is an orderly form of government. In the same case, squatting was characterized as a widespread vice and a blight Thus: Since the last global war, squatting on another's property in this country has become a widespread vice. It was and is a blight Squatter's areas pose problems of health, sanitation. They are breeding places for crime. They constitute proof that respect for the law and the rights of others, even those of the government are being flouted. Knowingly, squatters have embarked on the pernicious act of occupying property whenever and wherever convenient to their interests without as much as leave, and even against the will, of the owner. They are emboldened seemingly because of their belief that they could violate the law with impunity. The pugnaciousness of some of them has tied up the hands of legitimate owners. The latter are thus prevented from recovering possession by peaceful means. Government lands have not been spared by them. They know, of course, that instrusion into property, government or private, is wrong. But, then the wheels of justice grind slow, mainly because of lawyers who, by means, fair or foul, are quite often successful in procuring delay of the day of reckoning. Rampancy of forcible entry into government lands particularly, is abetted by the apathy of some public officials to enforce the government's rights. Obstinacy of

these squatters is difficult to explain unless it is spawned by official tolerance, if not outright encouragement or protection. Said squatters have become insensible to the difference between right and wrong. To them, violation of law means nothing. With the result that squatters still exists, much to the detriment of public interest. It is high time that, in this aspect, sanity and the rule of law be restored. It is in this environment that we look into the validity of the permits granted defendants herein.

circumstances of necessity and that they are, therefore, entitled to a more human treatment, more understanding and more of pity rather than be herded before the courts, likened to hardened criminals and deliberate violators of our laws and ordinances." 6 Our pronouncement in Astudillo vs. Board of Directors of PHHC 7 is relevant to this case. Thus— In carrying out its social re-adjustment policies, the government could not simply lay aside moral standards, and aim to favor usurpers, squatters, and intruders, unmindful of the lawful and unlawful origin and character of their occupancy. Such a policy would perpetuate conflicts instead of attaining their just solution. (Bernardo vs. Bernardo, 96 Phil. 202, 206.)

In the above cited case, the land occupied by the squatters belongs to the City of Manila. In the instant case, the land occupied by the squatters are portions of water sheds, reservations, scattered portions of the public domain within the Baguio townsite. Certainly, there is more reason then to void the actions taken by the City of Baguio through the questioned ordinance.

Indeed, the government has enunciated a militant policy against squatters. Thus, Letter of Instruction No. 19 dated October 2, 1972 orders city and district engineers 'to remove all illegal constructions including buildings ... and those built without permits on public or private property' and providing for the relocation of squatters (68 O.G. 7962. See Letter of Instruction No. 19-A). As noted by Justice Sanchez, since the last global war, squatting on another's property in this country has become a widespread vice. (City of Manila vs.. Garcia, L26053, Feb. 21, 1967, 19 SCRA 413, 418).

Being unquestionably a public land, no disposition thereof could be made by the City of Baguio without prior legislative authority. It is the fundamental principle that the state possesses plenary power in law to determine who shall be favored recipients of public domain, as well as under what terms such privilege may be granted not excluding the placing of obstacles in the way of exercising what otherwise would be ordinary acts of ownership. And the law has laid in the Director of Lands the power of exclusive control, administrations, disposition and alienation of public land that includes the survey, classification, lease, sale or any other form of concessions or disposition and management of the lands of public domains. 5 Nor could the enactment of Ordinance 386 be justified by stating that "this Ordinance is primarily designed to extend a helping hand to the numerous landless city residents and the so called squatters within the Baguio townsite in their desire to acquire residential lots which they may rightly call their own and that the reported people who have violated the City's building ordinances were not so guided by any criminal perversity, but were given to it more by

WHEREFORE, in view of the foregoing, Ordinance 386 is hereby rendered nullified and without force and effect. SO ORDERED.

Fernando, C.J., Makasiar, Concepcion Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin Vasquez, Relova and Gutierrez, JJ., concur.

Armeña-Hidalgo-Luna Law Offices for petitioner. Alfredo Kallos for private respondent.

Teehankee, J., took no part. Aquino, J., is on leave.

PLANA, J.:

Footnotes 1 Record on Appeal (Decision of the CFI of Baguio, Branch I in Criminal Case Nos. 2553 to 2690), p. 93. 2 Degala v. Reyes, 87 Phil. 649 citing Hoskyns v. National City Bank of New York, 85 Phil. 201. 3 Ibid, citing 7 C.J.S., 1049. 4 19 SCRA 413. 5 Francisco v. Rodriguez, 67 SCRA 212, 217. 6 Record on Appeal (Explanatory note of ordinance 386 pp. 87- 88.) 7 73 SCRA 15. Republic SUPREME Manila

of

the

Philippines COURT

FIRST DIVISION G.R. No. L-31753 July 31, 1984 JOSE V. BONAFE petitioner, vs. HON. ROBERTO ZURBANO, et al., respondents.

Some years back, petitioner, a policeman of Malilipot Albay, was suspended by respondent Mayor Marciano Bitara because of four criminal cases filed against him in the Municipal Court of Tabaco, Albay, to wit: assault upon an agent (another policeman) of a person in authority with homicide; less serious physical injuries thru reckless imprudence; illegal possession of firearm; and alarm and scandal . Before the cases could be tried on the merits, the prosecution moved for their provisional dismissal on account of the desistance of the offended parties who had been paid by petitioner. The motion was granted by the court. Petitioner later sought a modification of the provisional dismissal to an absolute dismissal, which was also granted by the court. Petitioner then filed with the Civil Service Commission a petition for reinstatement and payment of the salaries he failed to receive during his suspension, invoking the second paragraph of Section 16, Republic Act No. 4864, otherwise known as the Police Act of 1966, which provides: When a member of the police force or agency is accused in court of any felony or violation of law . . ., the city mayor or municipal mayor concerned, shall immediately suspend the accused from office pending the final decision by the court, and in case of acquittal the accused shall be entitled to immediate reinstatement and the Payment of the entire salary he failed to receive during his suspension . ... (emphasis supplied.)

The Civil Service Commission referred the matter to the Malilipot Mayor, who replied with a firm expression of his refusal to reinstate petitioner for the reason that there was actually no acquittal which could be the basis of petitioner's reinstatement with back salaries. While the matter was pending in the Commission, petitioner filed an action for mandamus in the Court of First Instance of Albay to compel reinstatement and payment of back salaries. The court dismissed the action. Hence this petition seeking reversal of the said decision. The petition has no merit. The law predicates reinstatement with entitlement to back salaries on "acquittal". The dismiss of the criminal cases filed against petitioner after he had paid the offended parties, without trial on the merits, was not an acquittal. It is obvious that when the statute speaks of the suspended officer being "acquitted" it means that after due hearing and consideration of the evidence against him the court is of the opinion that his guilt has not been proved beyond reasonable doubt. Dismissal of the case against the suspended officer will not suffice because dismissal does not amount to acquittal. As aptly stated in People vs. Salico, 84 Phil. 722, 732-733 [1949]: "Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the

proceeding, either because the court is not a court of competent jurisdiction or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was

committed within the territorial jurisdiction of the court and the case is dismiss the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction." (Malanyaon vs. Lising, 106 SCRA 237 at 239.) It is also noted that as regards the charge of assault upon an agent of a person in authority with homicide, the case was before the municipal court only for preliminary investigation. Certainly, the petitioner could not have been acquitted therein. Apart from the foregoing, petitioner has failed to exhaust administrative remedies before seeking judicial relief. When he filed with the court a quo the case subject of the instant petition, his petition for reinstatement was pending in Civil Service Commission, as it still is. WHEREFORE, the petition is dismissed. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Gutierrez, Jr., and De la Fuente, JJ., concur.

Relova,

Republic SUPREME Manila

of

the

Philippines COURT

FIRST DIVISION G.R. No. L-39419 April 12, 1982 MAPALAD AISPORNA, petitioner, vs. THE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

DE CASTRO, J.: In this petition for certiorari, petitioner-accused Aisporna seeks the reversal of the decision dated August 14, 19741 in CA-G.R. No. 13243-CR entitled "People of the Philippines, plaintiff-appellee, vs. Mapalad Aisporna, defendant-appellant" of respondent Court of Appeals affirming the judgment of the City Court of Cabanatuan 2 rendered on August 2, 1971 which found the petitioner guilty for having violated Section 189 of the Insurance Act (Act No. 2427, as amended) and sentenced her to pay a fine of P500.00 with subsidiary imprisonment in case of insolvency, and to pay the costs. Petitioner Aisporna was charged in the City Court of Cabanatuan for violation of Section 189 of the Insurance Act on November 21, 1970 in an information 3 which reads as follows: That on or before the 21st day of June, 1969, in the City of Cabanatuan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, wilfully, unlawfully and feloniously act as agent in the solicitation or procurement of an application for insurance by soliciting therefor the application of one

Eugenio S. Isidro, for and in behalf of Perla Compania de Seguros, Inc., a duly organized insurance company, registered under the laws of the Republic of the Philippines, resulting in the issuance of a Broad Personal Accident Policy No. 28PI-RSA 0001 in the amount not exceeding FIVE THOUSAND PESOS (P5,000.00) dated June 21, 1969, without said accused having first secured a certificate of authority to act as such agent from the office of the Insurance Commissioner, Republic of the Philippines. CONTRARY TO LAW. The facts, 4 as found by the respondent Court of Appeals are quoted hereunder: IT RESULTING: That there is no debate that since 7 March, 1969 and as of 21 June, 1969, appellant's husband, Rodolfo S. Aisporna was duly licensed by Insurance Commission as agent to Perla Compania de Seguros, with license to expire on 30 June, 1970, Exh. C; on that date, at Cabanatuan City, Personal Accident Policy, Exh. D was issued by Perla thru its author representative, Rodolfo S. Aisporna, for a period of twelve (12) months with beneficiary as Ana M. Isidro, and for P5,000.00; apparently, insured died by violence during lifetime of policy, and for reasons not explained in record, present information was filed by Fiscal, with assistance of private prosecutor, charging wife of Rodolfo with violation of Sec. 189 of Insurance Law for having, wilfully, unlawfully, and feloniously acted, "as agent in the solicitation for insurance by soliciting therefore the application of one Eugenio S. Isidro for and in behalf of

Perla Compaña de Seguros, ... without said accused having first secured a certificate of authority to act as such agent from the office of the Insurance Commission, Republic of the Philippines." and in the trial, People presented evidence that was hardly disputed, that aforementioned policy was issued with active participation of appellant wife of Rodolfo, against which appellant in her defense sought to show that being the wife of true agent, Rodolfo, she naturally helped him in his work, as clerk, and that policy was merely a renewal and was issued because Isidro had called by telephone to renew, and at that time, her husband, Rodolfo, was absent and so she left a note on top of her husband's desk to renew ... Consequently, the trial court found herein petitioner guilty as charged. On appeal, the trial court's decision was affirmed by the respondent appellate court finding the petitioner guilty of a violation of the first paragraph of Section 189 of the Insurance Act. Hence, this present recourse was filed on October 22, 1974. 5 In its resolution of October 28, 1974, 6 this Court resolved, without giving due course to this instant petition, to require the respondent to comment on the aforesaid petition. In the comment 7 filed on December 20, 1974, the respondent, represented by the Office of the Solicitor General, submitted that petitioner may not be considered as having violated Section 189 of the Insurance Act. 8 On April 3, 1975, petitioner submitted his Brief 9 while the Solicitor General, on behalf of the respondent, filed a manifestation 10 in lieu of a Brief on May 3, 1975 reiterating his stand that the petitioner has not violated Section 189 of the Insurance Act. In seeking reversal of the judgment of conviction, petitioner assigns the following errors 11 allegedly committed by the appellate court:

1. THE RESPONDENT COURT OF APPEALS ERRED IN FINDING THAT RECEIPT OF COMPENSATION IS NOT AN ESSENTIAL ELEMENT OF THE CRIME DEFINED BY THE FIRST PARAGRAPH OF SECTION 189 OF THE INSURANCE ACT. 2. THE RESPONDENT COURT OF APPEALS ERRED IN GIVING DUE WEIGHT TO EXHIBITS F, F-1, TO F17, INCLUSIVE SUFFICIENT TO ESTABLISH PETITIONER'S GUILT BEYOND REASONABLE DOUBT. 3. THE RESPONDENT COURT OF APPEALS ERRED IN NOT ACQUITTING HEREIN PETITIONER. We find the petition meritorious. The main issue raised is whether or not a person can be convicted of having violated the first paragraph of Section 189 of the Insurance Act without reference to the second paragraph of the same section. In other words, it is necessary to determine whether or not the agent mentioned in the first paragraph of the aforesaid section is governed by the definition of an insurance agent found on its second paragraph. The pertinent provision of Section 189 of the Insurance Act reads as follows: No insurance company doing business within the Philippine Islands, nor any agent thereof, shall pay any commission or other compensation to any person for services in obtaining new insurance, unless such person shall have first procured from the Insurance Commissioner a certificate of authority to act as an agent of such company as hereinafter provided. No person shall act as agent, sub-agent, or broker in the solicitation of

procurement of applications for insurance, or receive for services in obtaining new insurance, any commission or other compensation from any insurance company doing business in the Philippine Islands, or agent thereof, without first procuring a certificate of authority so to act from the Insurance Commissioner, which must be renewed annually on the first day of January, or within six months thereafter. Such certificate shall be issued by the Insurance Commissioner only upon the written application of persons desiring such authority, such application being approved and countersigned by the company such person desires to represent, and shall be upon a form approved by the Insurance Commissioner, giving such information as he may require. The Insurance Commissioner shall have the right to refuse to issue or renew and to revoke any such certificate in his discretion. No such certificate shall be valid, however, in any event after the first day of July of the year following the issuing of such certificate. Renewal certificates may be issued upon the application of the company. Any person who for compensation solicits or obtains insurance on behalf of any insurance company, or transmits for a person other than himself an application for a policy of insurance to or from such company or offers or assumes to act in the negotiating of such insurance, shall be an insurance agent within the intent of this section, and shall thereby become liable to all the duties, requirements, liabilities, and penalties to which an agent of such company is subject.

Any person or company violating the provisions of this section shall be fined in the sum of five hundred pesos. On the conviction of any person acting as agent, sub-agent, or broker, of the commission of any offense connected with the business of insurance, the Insurance Commissioner shall immediately revoke the certificate of authority issued to him and no such certificate shall thereafter be issued to such convicted person. A careful perusal of the above-quoted provision shows that the first paragraph thereof prohibits a person from acting as agent, sub-agent or broker in the solicitation or procurement of applications for insurance without first procuring a certificate of authority so to act from the Insurance Commissioner, while its second paragraph defines who is an insurance agent within the intent of this section and, finally, the third paragraph thereof prescribes the penalty to be imposed for its violation. The respondent appellate court ruled that the petitioner is prosecuted not under the second paragraph of Section 189 of the aforesaid Act but under its first paragraph. Thus — ... it can no longer be denied that it was appellant's most active endeavors that resulted in issuance of policy to Isidro, she was there and then acting as agent, and received the pay thereof — her defense that she was only acting as helper of her husband can no longer be sustained, neither her point that she received no compensation for issuance of the policy because any person who for compensation solicits or obtains insurance on behalf of any insurance

company or transmits for a person other than himself an application for a policy of insurance to or from such company or offers or assumes to act in the negotiating of such insurance, shall be an insurance agent within the intent of this section, and shall thereby become liable to all the duties, requirements, liabilities, and penalties, to which an agent of such company is subject. paragraph 2, Sec. 189, Insurance Law, now it is true that information does not even allege that she had obtained the insurance, for compensation which is the gist of the offense in Section 189 of the Insurance Law in its 2nd paragraph, but what appellant apparently overlooks is that she is prosecuted not under the 2nd but under the 1st paragraph of Sec. 189 wherein it is provided that, No person shall act as agent, subagent, or broker,

in the solicitation or procurement of applications for insurance, or receive for services in obtaining new insurance any commission or other compensation from any insurance company doing business in the Philippine Island, or agent thereof, without first procuring a certificate of authority to act from the insurance commissioner, which must be renewed annually on the first day of January, or within six months thereafter. therefore, there was no technical defect in the wording of the charge, so that Errors 2 and 4 must be overruled. 12 From the above-mentioned ruling, the respondent appellate court seems to imply that the definition of an insurance agent under the second paragraph of Section 189 is not applicable to the insurance agent mentioned in the first paragraph. Parenthetically, the respondent court concludes that under the second paragraph of Section 189, a person is an insurance agent if he solicits and obtains an insurance for compensation, but, in its first paragraph, there is no necessity that a person solicits an insurance for compensation in order to be called an insurance agent.

We find this to be a reversible error. As correctly pointed out by the Solicitor General, the definition of an insurance agent as found in the second paragraph of Section 189 is intended to define the word "agent" mentioned in the first and second paragraphs of the aforesaid section. More significantly, in its second paragraph, it is explicitly provided that the definition of an insurance agent is within the intent of Section 189. Hence — Any person who for compensation ... shall be an insurance agent within the intent of this section, ... Patently, the definition of an insurance agent under the second paragraph holds true with respect to the agent mentioned in the other two paragraphs of the said section. The second paragraph of Section 189 is a definition and interpretative clause intended to qualify the term "agent" mentioned in both the first and third paragraphs of the aforesaid section. Applying the definition of an insurance agent in the second paragraph to the agent mentioned in the first and second paragraphs would give harmony to the aforesaid three paragraphs of Section 189. Legislative intent must be ascertained from a consideration of the statute as a whole. The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce harmonious whole. 13 A statute must be so construed as to harmonize and give effect to all its provisions whenever possible. 14 The meaning of the law, it must be borne in mind, is not to be extracted from any single part, portion or section or from isolated words and phrases, clauses or sentences but from a general consideration or view of the act as a whole. 15 Every part of the statute must be interpreted with reference to the context. This means that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment, not separately and independently. 16 More importantly, the doctrine of associated words (Noscitur a Sociis) provides that where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be made clear and

specific by considering the company in which it is found or with which it is associated. 17 Considering that the definition of an insurance agent as found in the second paragraph is also applicable to the agent mentioned in the first paragraph, to receive a compensation by the agent is an essential element for a violation of the first paragraph of the aforesaid section. The appellate court has established ultimately that the petitioner-accused did not receive any compensation for the issuance of the insurance policy of Eugenio Isidro. Nevertheless, the accused was convicted by the appellate court for, according to the latter, the receipt of compensation for issuing an insurance policy is not an essential element for a violation of the first paragraph of Section 189 of the Insurance Act. We rule otherwise. Under the Texas Penal Code 1911, Article 689, making it a misdemeanor for any person for direct or indirect compensation to solicit insurance without a certificate of authority to act as an insurance agent, an information, failing to allege that the solicitor was to receive compensation either directly or indirectly, charges no offense. 18 In the case of Bolen vs. Stake, 19 the provision of Section 3750, Snyder's Compiled Laws of Oklahoma 1909 is intended to penalize persons only who acted as insurance solicitors without license, and while acting in such capacity negotiated and concluded insurance contracts for compensation. It must be noted that the information, in the case at bar, does not allege that the negotiation of an insurance contracts by the accused with Eugenio Isidro was one for compensation. This allegation is essential, and having been omitted, a conviction of the accused could not be sustained. It is well-settled in Our jurisprudence that to warrant conviction, every element of the crime must be alleged and proved. 20 After going over the records of this case, We are fully convinced, as the Solicitor General maintains, that accused did not violate Section 189 of the Insurance Act. WHEREFORE, the judgment appealed from is reversed and the accused is acquitted of the crime charged, with costs de oficio. SO ORDERED.

Teehankee (Acting C.J.,) Makasiar, De Castro, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.

14 People vs. Polmon 86 Phil. 350. 15 82 C.J.S., Section 345, pp. 699700.

Plana, J., took no part.

16 Tamayo vs. Gsell, 35 Phil. 953. Footnotes

17 Co Kim Cham vs. Valdez Tan Keh & Dizon, 75 Phil. 371. 1 p. 21, Rollo. 18 Jasper vs. State, 73 Tex. Cr. R 197; 164 S.W. 851.

2 p. 11, CA Rollo.

19 149 p. 1074, 11 Okla. Crim. 594.

3 p. 10, CA Rollo.

20 People vs. Sy Gesiong, 60 Phil. 614.

4 pp. 21-22, Rollo. 5 p. 7, Rollo.

FIRST DIVISION

6 p. 36, Rollo. 7 p. 51, Rollo.

[G.R. No. 127639. December 3, 1999]

8 p. 58, Rollo. 9 p. 69, Rollo. 10 p. 71, Rollo. 11 p. 69, Rollo; p. 6, Brief for the Petitioner. 12 pp. 25 and 26, Rollo. 13 Araneta vs. Concepcion, 99 Phil. 709; Tamayo vs. Gsell, 35 Phil. 953; Lopez vs. El Hogar Filipino, 47 Phil. 249; Chartered Bank vs. Imperial, 48 Phil. 931.

SAN MIGUEL CORPORATION and BERNARDO NOEL in his capacity as Industrial Relations Manager, petitioners, vs. ALFREDO ETCUBAN, BERNABE ETCUBAN, NORBERTO LABUCA, FELIPE ECHAVEZ, BERNARDINO ENJAMBRE, ROGELIO ABELLANOSA, ROMULO CATALAN, PEDRO EBOT, ANATOLIO GERALDIZO, JOSE ALFANTA, EDUARDO LOFRANCO, LECERIO PARBA, RAFAEL AGUILAR, RICARDO LACUAREN, BENJAMIN ALESNA, ANTONIO BACUS, PRIMO SOTEROL, JESUS JADORMEO, MANUEL MANKIKIS, APRONIANO ANG, RENATO VILLALON, SAMUEL OUANO, JOSE DELA, JESUS BASILGO, CATALINO COLE, SR., ALFREDO GONZALES, RAMON FLORES, MARCOS VITO CRUZ, JACINTO

DIVINAGRACIA, ALAN ALINSUGAY CLAUDIO AGAN, respondents.

and

DECISION KAPUNAN, J.: Before the Court is a petition for review on certiorari of the Decision, dated 16 May 1996 of the Court of Appeals in CA-G.R. CV No. 46554 and of its Resolution, dated November 1996 denying petitioners’ motion for reconsideration of said decision. The Court of Appeals’ decision reversed and set aside the resolution of the Regional Trial Court of Cebu, Branch 19, in Civil Case No. CEB-15310, dismissing for lack of jurisdiction respondents’ complaint for damages against petitioners for terminating their employment by fraudulently inducing them to accept petitioners’ “retrenchment program.” The antecedents of this case are as follows: In 1981, San Miguel Corporation (SMC) informed its Mandaue City Brewery employees that it was suffering from heavy losses and financial distress which could eventually lead to its total closure. In several meetings convened by SMC with its employees, it was explained to them that the distressed state of SMC was caused by its poor sales performance which, in order to survive, called for a cutback in production and a corresponding reduction in the work force. Because of this, SMC offered its “Retrenchment to Prevent Loss Program” to its employees. The offering of the retrenchment program was coupled with an unsolicited advise from SMC that it would be in the best interest of the affected employees to avail of the said program since, by doing so, they would be able to obtain their retrenchment benefits and privileges with ease. SMC admonished its employees that their failure to avail of the retrenchment program might lead to difficulty in following-up and obtaining their separation pay from SMC’s main office in Manila. Convinced by the representations and importunings of SMC, respondents, who had been employees of SMC since the 1960s, availed of the retrenchment program at various times in 1981, 1982 and 1983. After their inclusion in the retrenchment program, respondents were given their termination letters and separation pay. In return,

respondents executed “receipt and release” documents in favor of SMC. Sometime in May of 1986, respondents got hold of an SMC publication allegedly revealing that SMC was never in financial distress during the time when they were being retrenched but was, in fact, enjoying a growth in sales. Respondents also learned that, during their retrenchment, SMC was engaged in hiring new employees. Thus, respondents concluded that SMC’s financial distress story and retrenchment program were merely schemes to rid itself of regular employees and, thus, avoid the payment of their actual benefits. On 17 October 1988, respondents filed a complaint before the Regional Arbitration Branch No. VII of the National Labor Relations Commission (NLRC) for the declaration of nullity of the retrenchment program. In their complaint, respondents alleged that they were former regular employees of SMC who were deceived into severing their employment due to SMC’s concocted financial distress story and fraudulent retrenchment program. Respondents prayed for reinstatement, backwages and damages. On 25 July 1989, the Labor Arbiter dismissed the complaint on the ground of prescription, stating: What is apparent from their allegations, however, is that complainants are contesting their respective terminations pursuant to the Retrenchment Program effected by San Miguel Corporation in 1981, 1982, and 1983. These then are claims for illegal dismissal which fall within the ambit of Article 291 of the New Labor Code. It provides: ART. 291. Money claims. – All money claims arising from employer-employee relations accruing during the effectivity of this Code, shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. x x x Under the aforequoted provision therefore, complainants’ causes of action have already prescribed. Even if this Office were to apply the more liberal interpretation of the above provisions enunciated by the Honorable Supreme Court in the case of Callanta vs. Carnation Phils., Inc., G.R. No. 70615, Nov. 3,

1986, an interpretation that views illegal dismissal as an injury upon the rights of a person, hence, under Article 1146 of the Civil Code prescribes in 4 years, those who were retrenched in 1983, at the very latest, had only until 1987 to institute a complaint against SMC. The records will show that all the above captioned cases were filed in 1988. Clearly, therefore, complainants’ causes of action have already prescribed.[1] Respondents then appealed to the NLRC which, on 20 December 1990, dismissed the appeal and affirmed the decision of the labor arbiter. On 14 December 1993, respondents, who were thirty-one (31) in number, again filed a complaint[2] against SMC, but this time before the Regional Trial Court of Cebu City, Branch 19. Although their complaint was captioned as an action for damages, respondents sought the declaration of nullity of their so-called collective “contract of termination” with SMC. Respondents theorized that SMC’s offer of retrenchment and their acceptance of the same resulted in the consummation of a collective “contract of termination” between themselves and SMC. Respondents asserted that since the cause of their “contract of termination” was non-existent,i.e., the claim of SMC that it was under financial distress, the said contract is null and void. In this regard, respondents claimed that they were entitled to damages because of the deception employed upon them by SMC which led to their separation from the company. They further asseverated that their separation from employment resulted in the loss of earnings and other benefits. Hence, they prayed that petitioners jointly and severally be ordered, among others, to pay each of them the sum of P650,000.00 as actual and compensatory damages, P100,000.00 as moral damages, P50,000.00 as exemplary damages, and 25% of whatever may be awarded to them as attorney’s fees. Instead of filing an answer, SMC filed a motion to dismiss on the bases of lack of jurisdiction, res judicata, payment, prescription and failure to state a cause of action. On 21 June 1994, the RTC issued a resolution granting SMC’s motion to dismiss on the grounds of lack of

jurisdiction and prescription. The pertinent portion of the resolution reads: Although plaintiffs, among others, pray for the declaration of nullity of the contract of termination, their main cause is for damages, actual, compensatory and moral damages in the “aggregate amount of P650,000.00 each and P1,200,000.00 each” for plaintiffs Bernabe Etcuban and Jose Dela. The alleged acts leading to their signing of the contract of termination are acts constituting labor disputes. It is a case for damages resulting from illegal termination. Under Article 217 of the Labor Code, such cases fall within the exclusive original jurisdiction of the Labor Arbiter and the National Labor Relations Commission. In fact, in 1988, plaintiffs instituted the same case for “Implementation of Art. 217, par. 5, now (sic) Labor Code and Declaration of Nullity of ‘Retrenchment’ Program, and Damages” (see annex “A” to motion to Dismiss) with the National Labor Relations Commission. Their cases were dismissed, not because of lack of jurisdiction, but because their cause of action already prescribed, the cases having been filed after the three-year prescriptive period. Plaintiffs have already submitted to the jurisdiction of the NLRC when they filed their cases with that agency. And they prayed for the declaration of nullity of the retrenchment program of defendant corporation. It was only after the dismissal of those cases that they instituted this present suit. xxx

xxx

xxx

Moreover, the contract of termination which plaintiffs were allegedly induced to sign is not void from the beginning. At most, such contract is voidable, plaintiffs’ consent thereto being allegedly vitiated by fraud and deceit. Thus plaintiffs allege that “the brainwashing conducting (ted) on the affected employees through briefings and pulong-pulongs relative to the actual economic condition of defendant corporation finally led plaintiffs to believe that indeed said defendant was incurring losses and has opted to reduce its production to arrest an immediate collapse of its operations. Thus, the corresponding need to cut down on its work force;” (par. 11, complaint); “This distressed state of affairs of the defendant corporation inculcated into their (sic) minds of defendants and the worry of non-

recovery of their benefits in the event defendant corporation closes down, induced plaintiffs to accept the “offer of retrenchment”. Thereupon, they were paid their so-called “separation pay”. Hence, the contract of termination evidenced by individual termination letters and benefits paid to each plaintiff was consummated.” (par. 12). But that “records, however, revealed that from 1973 up to 1983, inclusive, defendant corporation never suffered any business reverses or losses in its operation.”; (par. 13, complaint). When the consent of one of the contracting parties is vitiated by fraud or deceit, the resulting contract is only voidable or annulable, not void or inexistent. The action to annul the same should be filed within four (4) years from discovery of the fraud or deceit. According to plaintiffs’ complaint, they “acquired knowledge of the actual business condition of defendant corporation only in May 1986 when one of them got hold of a copy of the company’s publication. That was the time they discovered that indeed, defendants deceived them x x x. (par. 14, complaint.) From May 1986 to January 14, 1993, more than six (6) years have already elapsed. Clearly, the action, has already prescribed. The rest of the grounds need not be discussed. WHEREFORE, for want of jurisdiction, and on the further ground of prescription, the above-entitled case is dismissed. SO ORDERED.[3] Respondents seasonably appealed to the Court of Appeals (CA). In its Decision dated 16 May 1996, the CA reversed and set aside the lower court’s order of dismissal and remanded the case to the RTC for further proceedings. The pertinent portion of the decision reads: A scrutiny of the allegations of the present complaint reveals that plaintiffs’ cause of action is not actually based on an employer-employee relationship between the plaintiffs and the defendants. It primarily involves a civil dispute arising from the claim of plaintiffs that the cause for the contract of termination of their services is inexistent

rendering said contract as null an void from the beginning. x x x

19), Cebu City for further proceedings. Costs against defendants-appellees.

xxx

SO ORDERED.[4]

xxx

x x x.

Guided thereby, we find that recourse by plaintiffsappellants to the civil law on contracts by raising the issue [of] whether or not the contract of termination of services entered into by plaintiffs with defendants is void from the beginning due to inexistent cause of action under Article 1409 of the Civil Code, places the case within the jurisdiction of the civil courts.

SMC filed a motion for reconsideration but was denied in the CA’s Resolution dated 14 November 1996[5]. Hence, this petition. In its petition, SMC contends that the CA erred: I

As refined by the Supreme Court, where the resolution of the dispute requires expertise, not in labor management relations nor in wage structures and other terms and conditions of employment, but rather in the application of the general civil law, such claim falls outside the area of competence of expertise ordinarily ascribed to Labor Arbiters and the NLRC. Thus, the trial court erred in finding that it has no jurisdiction over the case. Secondly, the trial court erred in ruling that the complaint of plaintiffs-appellants has prescribed. Article 1410 of the Civil Code, in relation to Article 1409 as herein before quoted, specifically provides that the action for the declaration of the inexistence of a contract on ground (3) above does not prescribe. Thirdly, one of the requisites for the application of the principle of res judicata is that there must be a judgment on the merits in the earlier case involving the same parties and the same issues. Plaintiffs-appellants’ complaint was dismissed by the NLRC on the ground that their cause of action had prescribed; no trial has been held on the first complaint. Thus, the dismissal of the first complaint is not a judgment on the merits and therefore not applicable to the present case. xxx

xxx

x x x.

WHEREFORE, the order of dismissal is reversed and set aside. Let the original records of Civil Case No. CEB15310, be remanded to the Regional Trial Court (Branch

IN HOLDING THAT THE REGIONAL TRIAL COURT OF CEBU, BRANCH 19, HAS JURISDICTION OVER THE INSTANT CASE AND THE CAUSE OF ACTION OF THE RESPONDENTS ARE NOT ACTUALLY BASED ON AN EMPLOYER-EMPLOYEE RELATIONSHIP WHEN THE COMPLAINT SHOWS THAT THE RESPONDENTS ARE CLAIMING TO HAVE BEEN UNJUSTLY SEPARATED FROM THEIR REGULAR EMPLOYMENTS (sic) BY THE PETITIONERS AND ARE DEMANDING TO BE PAID ACTUAL AND COMPENSATORY DAMAGES CONSISTING OF “THEIR EXPECTED INCOME BY WAY OF SALARIES AND OTHER FRINGE BENEFITS DUE THEM UNDER THE LAW FROM THE TIME OF THEIR SEPARATION AND UNTIL THEIR RETIREMENT DUE TO AGE OR LENGTH OF SERVICE . . . SOCIAL SECURITY SYSTEM BENEFITS . . . RETIREMENT BENEFITS.” II IN RULING THAT THE COMPLAINT OF THE RESPONDENTS HAVE NOT YET PRESCRIBED WHEN THE RESPONDENTS HAVE CLAIMED IN THEIR COMPLAINT THAT THEY HAVE BEEN ALLEGEDLY BRAINWASHED BY THE PETITIONERS AND THEIR COMPAINT (sic) WAS FILED ONLY AFTER MORE THAN SIX (6) YEARS HAVE LAPSED FROM THE TIME THAT THE RESPONDENTS CLAIMED TO HAVE “DISCOVERED THAT INDEED, DEFENDANTS (Petitioners) DECEIVED THEM INTO BELIEVING THAT DEFENDANT CORPORATION WAS INCURRING LOSSES IN ITS OPERATION HENCE, THE NECESSITY

TO TRIM DOWN ITS WORK FORCE TO INDUCE THEM TO ACCEPT THE “OFFER OF RETRENCHMENT (sic).”

stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

III

1.

Unfair labor practice cases;

IN RULING THAT “THE DISMISSAL OF THE FIRST COMPLAINT IS NOT A JUDGMENT ON THE MERITS AND THEREFORE NOT APPLICABLE TO THE PRESENT CASE” WHEN IT IS THE SAID DIVISION’S OWN FINDING THAT: “THE COMPLAINT FILED BY HEREIN PLAINTIFFS-APPELLANTS (Respondents) WITH THE REGIONAL ARBITRATION BRANCH PRAYED FOR THE DECLARATION OF THE TERMINATION SCHEME ALLEGEDLY DECEPTIVELY FORCED UPON THEM TO BE NULL AND VOID WITH THE SAME PRAYER THAT THEY BE REINSTATED TO THEIR REGULAR EMPLOYMENT WITHJOUT ANY LOSS OF ANY RIGHTS (sic) AND BENEFITS (sic) AS WELL AS PAYMENT OF THEIR BACKWAGES AND DAMAGES.”[6]

2.

Termination disputes;

3.

If

4.

Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations;

5.

Cases arising from any violation of Article 264 of this Code including questions involving the legality of strikes and lockouts; and

6.

Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employeremployee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b)

The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.

(c)

Cases arising from the interpretation or implementation of collective bargaining agreements and those arising form the interpretation or enforcement of company personnel policies shall be disposed of by the

We find the petition impressed with merit. The demarcation line between the jurisdiction of regular courts and labor courts over cases involving workers and their employers has always been the subject of dispute. We have recognized that not all claims involving such groups of litigants can be resolved solely by our labor courts.[7] However, we have also admonished that the present trend is to refer worker-employer controversies to labor courts, unless unmistakably provided by the law to be otherwise.[8] Because of this trend, jurisprudence has developed the “reasonable causal connection rule.” Under this rule, if there is a reasonable causal connection between the claim asserted and the employer-employee relations, then the case is within the jurisdiction of our labor courts.[9] In the absence of such nexus, it is the regular courts that have jurisdiction.[10] The jurisdiction of labor courts is provided under Article 217 of the Labor Code, to wit: ART. 217. Jurisdiction of Labor Arbiters and the Commission.-- (a) Except as otherwise provided under this Code the Labor Arbiter shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of

accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;

Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be [11] provided in said agreements. With regard to claims for damages under paragraph 4 of the above article, this Court has observed that: Jurisprudence has evolved the rule that claims for damages under paragraph 4 of Article 217, to be cognizable by the Labor Arbiter, must have a reasonable causal connection with any of the claims provided for in that article. Only if there is such a connection with the other claims can the claim for the damages be considered as arising from employer-employee relations.[12] In the present case, while respondents insist that their action is for the declaration of nullity of their “contract of termination,” what is inescapable is the fact that it is, in reality, an action for damages emanating form employer– employee relations. First, their claim for damages is grounded on their having been deceived into serving their employment due to SMC’s concocted financial distress and fraudulent retrenchment program – a clear case of illegal dismissal. Second, a comparison of respondents’ complaint for the declaration of nullity of the retrenchment program before the labor arbiter and the complaint for the declaration of nullity of their “contract of termination” before the RTC reveals that the allegations and prayer of the former are almost identical with those of the latter except that the prayer for reinstatement was no longer included and the claim for backwages and other benefits was replaced with a claim for actual damages. These are telltale signs that respondents’ claim for damages is intertwined with their having been separated from their employment without just cause and, consequently, has a reasonable causal connection with their employeremployee relations with SMC. Accordingly, it cannot be denied that respondents’ claim falls under the jurisdiction of the labor arbiter as provided in paragraph 4 of Article 217. Respondent’s assertion that their action is for the declaration of nullity of their “contract of termination” is merely an ingenious way of presenting their actual action, which is a claim for damages grounded on their having been illegal terminated. However, it would seem that

respondents committed a Freudian slip when they captioned their claim against SMC as an action for damages.[13] Even the term used for designating the contract, i.e. “contract of termination,” was formulated in a shrewd manner so as to avoid a semblance of employeremployee relations. This observation is bolstered by the fact that if respondents’ designation for the contract were to be made complete and reflective of its nature, its proper designation would be a “contract of termination of employment.” The Court is aware that the Civil Code provisions on contracts and damages may be used as bases for addressing the claim of respondents. However, the fact remains that the present action primarily involves an employer-employee relationship. The damages incurred by respondents as a result of the alleged fraudulent retrenchment program and the allegedly defective “contract of termination” are merely the civil aspect of the injury brought about by their illegal dismissal.[14] The civil ramifications of their actual claim cannot alter the reality that it is primordially a labor matter and, as such, is cognizable by labor courts. In Associated Citizens Bank vs. Japson,[15] we held: For the unlawful termination of employment, this Court in Primero v. Intermediate Appellate Court, supra, ruled that the Labor Arbiter had the exclusive and original jurisdiction over claims for moral and other forms of damages, so that the employee in the proceedings before the Labor Arbiter should prosecute his claims not only for reliefs specified under the Labor Code but also for damages under the Civil Code. This is because an illegally dismissed employee has only a single cause of action although the act of dismissal may be a violation not only the Labor Code but also of the Civil Code. For a single cause of action, the dismissed employee cannot institute a separate action before the Labor Arbiter for backwages and reinstatement and another action before the regular court for the recovery of moral and other forms of damages because splitting a single cause of action is procedurally unsound and obnoxious to the orderly administration of justice. (Primero v. Intermediate Appellate Court, supra, citing Gonzales v. Province of Iloilo, 38 SCRA 209; Cyphil Employees Association-Natu v. Pharmaceutical Industries, 77 SCRA 135; Calderon v. Court of Appeals, 100 SCRA 459, etc.)[16]

Even assuming arguendo that the RTC has jurisdiction, it is obvious from respondents’ own pleadings that their action for the declaration of nullity of the “contract of termination” will not prosper. Respondents allege that they were deceived by SMC into believing that it was under financial distress which, thus, led them into concluding the “contract of termination” with the latter.[17] Respondents then posit that since the cause of the contract, SMC’s alleged financial distress, was inexsistent, the contract is null and void. The argument is flawed. The fact that SMC was never in financial distress does not, in any way, affect the cause of their “contract of termination.” Rather, the fraudulent representations of SMC only affected the consent of respondents in entering into the said contract.[18] If the consent of a contracting party is vitiated by fraud, the contract is not void but, merely, voidable.[19] In Abando vs. Lozada,[20] we ruled: As correctly pointed out by the appellate court, the strategem (sic), the deceit, the misrepresentations employed by Cuevas and Pucan are facts constitutive of fraud which is defined in Article 1338 of the Civil Code as that (sic) insidious words or machinations of one of the contracting parties, by which the other is induced to enter into a contract which, without them, he would not have agreed to. When fraud is employed to obtain the consent of the other party to enter into a contract, the resulting contract is merely a voidable contract, that is, a valid and subsisting contract until annulled or set aside by a competent court. x x x[21] An action to annul a voidable contract based on fraud should be brought within four (4) years from the discovery of the same.[22] In the present case, respondents discovered SMC’s fraud in May 1986. However, the action to question the validity of the contract was only brought on 14 December 1993, or more than seven (7) years after the discovery of the fraud. Clearly, respondents’ action has already prescribed. The issue of jurisdiction and prescription having been resolved, it is no longer necessary to discuss the issue on res judicata raised in this petition. WHEREFORE, premises considered, the Decision of the Court of Appeals dated 16 May 1996 and its

Resolution dated 14 November 1996 are hereby REVERSED and SET ASIDE and the Resolution dated 21 June 1994 of the Regional Trial Court of Cebu, Branch 19, in CEB-15310, REINSTATED. SO ORDERED. Davide, Jr., C.J., (Chairman), Pardo, and Ynares-Santiago, JJ. concur.

[1]

Rollo, pp. 49-50.

[2]

Id., at 52-62.

[3]

Id., at 26-28.

[4]

Id., at 37-41.

[5]

Id., at 42.

[6]

Id., at 8-9.

Puno,

[7] San Miguel Corporation vs. National Labor Relations Commission, 161 SCRA 719, 724 (1988). [8] National Federation of Labor vs. Eisma, 127 SCRA 419, 428 (1984). [9] Dai-ichi Electronics Manufacturing Corp. vs. Villarama, Jr., 238 SCRA 267, 271 (1994). [10] Pepsi Cola Distributors of the Phils., Inc. vs. Gal-lang, 201 SCRA 695, 699 (1991). [11]

Underscoring supplied.

[12]

Supra, note 9.

[13]

Rollo, p. 52.

[14] National Union of Bank Employees vs. Lazaro, 157 SCRA 123, 127 (1988). [15]

196 SCRA 404 (1991).

[16]

Id., at 407-408.

[17]

Rollo, p. 91.

[18]

See Art. 1338, Civil Code.

[19]

Art. 1330, Civil Code.

[20]

178 SCRA 509 (1989).

[21]

Id., at 514.

[22]

Art. 1391, Civil Code; Bael vs. Intermediate Appellate Court, 169 SCRA 617, 624 (1989).

Republic SUPREME Manila

of

the

Philippines COURT

The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows: ORDINANCE NO. 3353

EN BANC

G.R. No. 111097 July 20, 1994 MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners, vs. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION,respondents.

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO. BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:

Aquilino G. Pimentel, Jr. and Associates for petitioners. R.R. Torralba & Associates for private respondent.

CRUZ, J.: There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city.

Sec. 1. — That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits. Sec. 2. — That it shall be a violation of existing business permit by any persons, partnership or corporation to use its business establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities.

Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit: a ) S u s p e n s i o n o f t h e b u s i n e s s p e r m i t f o r s

i x t y ( 6 0 ) d a y s f o r t h e f i r s t o f f e n s e a n d a f i n e o

f P 1 , 0 0 0 . 0 0 / d a y b ) S u s p e n s i o n o f t h e b u s i n e s s p e

r m i t f o r S i x ( 6 ) m o n t h s f o r t h e s e c o n d o f f e n s e , a

n d

o n

a

o f

f i n e o f P 3 , 0 0 0 . 0 0 / d a y c ) P e r m a n e n t r e v o c a t i

t h e b u s i n e s s p e r m i t a n d i m p r i s o n m e n t o f O n e

( 1 ) y e a r , f o r t h e t h i r d a n d s u b s e q u e n t o f f e n s e s .

Sec. 4. — This Ordinance shall take effect ten (10) days from publication thereof. Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows: ORDINANCE NO. 3375-93 AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR. WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295; WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO; WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO; WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulate or prohibit such

activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community; NOW THEREFORE, BE IT ORDAINED by the City Council in session duly assembled that: Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited. Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties: a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof; b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO. Sec. 3. — This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued the writ prayed for to prohibit

their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2 Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that: 1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the City's territorial limits. 2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) — (v) of R.A. 7160 could only mean "illegal gambling." 3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point. 4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point. 5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State. 6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case.

PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs. Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows: Sec. 16. — General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In addition, Section 458 of the said Code specifically declares that:

Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:

e d t o p r e v e n t ,

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall: xxx xxx xxx ( v ) E n a c t o r d i n a n c e s i n t e n d

s u p p r e s s a n d i m p o s e a p p r o p r i a t e p e

n a l t i e s f o r h a b i t u a l d r u n k e n n e s s i n p u b l i c p l a c e s

, v a g r a n c y , m e n d i c a n c y , p r o s t i t u t i o n , e s t a b l i s h m e

n t a n d m a i n t e n a n c e o f h o u s e s o f i l l r e p u t e , g a m b l i

n g

n t

a n d

d e v i c e s

o t h e r p r o h i b i t e d g a m e s o f c h a n c e , f r a u d u l e

a n d w a y s t o o b t a i n m o n e y o r p r o p e r t y ,

d r u g a d d i c t i o n , m a i n t e n a n c e o f d r u g d e n s , d r u g p u

s h i n g ,

b u t i o n

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c i t y ; This section also authorizes the local government units to regulate properties and businesses within their territorial limits in the interest of the general welfare. 5 The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code. It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the Local Government Code has recognized the competence of such communities to

determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State. The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within their territories, including the operation of casinos. The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically provides: Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of

this Code, the following rules shall apply: (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; xxx xxx xxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.) Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines." This is the opportune time to stress an important point. The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or

penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice. The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not by our own convictions on the propriety of gambling. The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following substantive requirements: 1) It must not contravene constitution or any statute.

the

2) It must not be unfair or oppressive. 3) It must not discriminatory.

be

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4) It must not prohibit but may regulate trade.

5) It must be general and consistent with public policy. 6) It must not be unreasonable. We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented or suppressed. We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short shrift from this Court. The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government Code is permissible because one law can change or repeal another law.

It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modifiedpro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission: Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a

(3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained: The cases relating to the subject of repeal by implication all proceed on

the assumption that if the act of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special. There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to make both the Code and such laws equally effective and mutually complementary.

This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983. In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the

municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 11 This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. The Court understands and admires the concern of the petitioners for the welfare of their constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman"13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention here. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land

and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs against the petitioners. It is so ordered. Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869.

In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to reestablish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling.

In the present case, it is my considered view that the national government (through PAGCOR) should reexamine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy — the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the

thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the

Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often

has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

II. The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 — nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino — which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those

The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR.

IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to reestablish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character.

# Separate Opinions

PADILLA, J., concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that: . . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to "state policy". It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy. (emphasis supplied)

It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do not always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should reexamine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values? DAVIDE, JR., J., concurring: While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case.

I. It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy — the challenged ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State's national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court's established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and DefensorSantiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated: A last word. This court's original jurisdiction to issue writs of certiorari (as well as prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their

respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" — was evidently intended precisely to relieve this Court pro tanto of the burden of

dealing with applications for extraordinary writs which, but for the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it. (citations omitted) And in Vasquez, this Court said: One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction. II.

The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 — nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino — which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads: Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their

residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III.

2 Ibid., pp. 53-62.

THIRD DIVISION

3 Pryce was dropped as private respondent in the resolution of the Court dated June 13, 1994.

[G.R. No. 119122. August 8, 2000]

4 197 SCRA 53. 5 Sec. 458, [2(vi-xv)]; [3(ii-vii)]; [4(i-ix)], Local Government Code, 1991. 6 Where the law does not distinguish, neither ought we to distinguish. 7 39 Phil. 102.

The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV. From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.

8 Garcia v. Executive Secretary, 204 SCRA 516, quoting Cooley, Constitutional Limitations, 8th ed., 379-380.

DECISION PURISIMA, J.: At bar is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a review of the decision[1] of the Court of Appeals in CAG.R. SP No. 34095 which affirmed the decision of the Court of Tax Appeals in C.T.A. Case No. 4419. The facts that matter are as follows:

9 Tatel v. Municipality of Virac, 207 SCRA 157; Solicitor General v. Metropolitan Manila Authority, 204 SCRA 837; De la Cruz v. Paras, 123 SCRA 569; U.S. v. Abandan, 24 Phil. 165. 10 44 Phil. 138. 11 Clinton v. Ceder Rapids, etc. Railroad Co., 24 Iowa 455.

On June 21, 1989, the petitioner received an assessment letter from the Commissioner of Internal Revenue (respondent Commissioner) for the payment of deficiency amusement tax computed thus: Deficiency Amusement Tax

Total gross receipts 1987

P19,9

15% tax due thereon

2,995

12 Art. X, Sec. 5, Constitution. Less: Tax paid

602,0

13 Planiol, Droit Civil, Vol. 2, No. 2210.

Deficiency amusement tax

P 2,39

14 Ibid.

Add:....75% surcharge

1,795

#Footnotes

1 Rollo, pp. 64-94.

PHILIPPINE BASKETBALL ASSOCIATION, petitioner, vs. COURT OF APPEALS, COURT OF TAX APPEALS, AND COMMISSIONER OF INTERNAL REVENUE,respondents.

15 77 Phil. 88.

20% interest

__1,6

(2 years) Total Amount Collectible

On July 18, 1989, petitioner contested the assessment by filing a protest with respondent Commissioner who denied the same on November 6, 1989. On January 8, 1990, petitioner filed a petition for review[2] with the Court of Tax Appeals (respondent CTA) questioning the denial by respondent Commissioner of its tax protest. On December 24, 1993, respondent CTA dismissed petitioner’s petition, holding: "WHEREFORE, in all the foregoing, herein petition for review is hereby DISMISSED for lack of merit and the Petitioner is hereby ORDERED to PAY to the Respondent the amount of P5,864,260.84 as deficiency amusement tax for the year 1987 plus 20% annual delinquency interest from July 22, 1989 which is the due date appearing on the notice and demand of the Commissioner (i.e. 30 days from receipt of the assessment) until fully paid pursuant to the provisions of Sections 248 and 249 (c) (3) of the Tax Code, as amended."[3] Petitioner presented a motion for reconsideration[4] of the said decision but the same was denied by respondent CTA in a resolution[5] dated April 8, 1994. Thereafter and within the reglementary period for interposing appeals, petitioner appealed the CTA decision to the Court of Appeals.

Due

&

On November 21, 1994, the Court of Appeals rendered its questioned Decision,[6] affirming the decision of the CTA and dismissing petitioner’s P 5,864,260.84 appeal. Petitioner filed a Motion for Reconsideration of said decision but to no avail. The same was denied by the Court of Appeals in a Resolution[7] dated January 31, 1995. Hence, this petition. Undaunted, petitioner found its way to this Court via the present petition, contending that: "1. Respondent Court of Appeals erred in holding that the jurisdiction to collect amusement taxes of PBA games is vested in the national government to the exclusion of the local governments. "2. Respondent Court of Appeals erred in holding that Section 13 of the Local Tax Code of 1973 limits local government units to theaters, cinematographs, concert halls, circuses and other places of amusement in the collection of the amusement tax. "3. Respondent Court of Appeals erred in holding that Revenue Regulations No. 8-88 dated February 19, 1988 is an erroneous interpretation of law. "4. Respondent Court of Appeals erred in giving retroactive effect to the revocation of Revenue Regulations 8-88. "5. Respondent Court of Appeals erred when it failed to consider the provisions of P.D. 851 the franchise of Petitioner, Section 8 of which provides that amusement tax on admission receipts of Petitioner is 5%. "6. Respondent Court of Appeals erred in holding that the cession of advertising and streamer spaces in the venue to a third person is subject to amusement taxes.

"7. Respondent Court of Appeals erred in holding that the cession of advertising and streamer spaces inside the venue is embraced within the term ‘gross receipts’ as defined in Section 123 (6) of the Tax Code. "8. Respondent Court of Appeals erred in holding that the amusement tax liability of Petitioner is subject to a 75% surcharge." The issues for resolution in this case may be simplified as follows: 1. Is the amusement tax on admission tickets to PBA games a national or local tax? Otherwise put, who between the national government and local government should petitioner pay amusement taxes? 2. Is the cession of advertising and streamer spaces to Vintage Enterprises, Inc. (VEI) subject to the payment of amusement tax? 3. If ever petitioner is liable for the payment of deficiency amusement tax, is it liable to pay a seventy-five percent (75%) surcharge on the deficiency amount due? Petitioner contends that PD 231, otherwise known as the Local Tax Code of 1973, transferred the power and authority to levy and collect amusement taxes from the sale of admission tickets to places of amusement from the national government to the local governments. Petitioner cited BIR Memorandum Circular No. 49-73 providing that the power to levy and collect amusement tax on admission tickets was transferred to the local governments by virtue of the Local Tax Code; and BIR Ruling No. 231-86 which held that "the jurisdiction to levy amusement tax on gross receipts from admission tickets to places of amusement was transferred to local governments under P.D. No. 231, as amended."[8] Further, petitioner opined that even assuming arguendo that respondent

Commissioner revoked BIR Ruling No. 231-86, the reversal, modification or revocation cannot be given retroactive effect since even as late as 1988 (BIR Memorandum Circular No. 8-88), respondent Commissioner still recognized the jurisdiction of local governments to collect amusement taxes. The Court is not persuaded by petitioner’s asseverations. The laws on the matter are succinct and clear and need no elaborate disquisition. Section 13 of the Local Tax Code provides: "Sec. 13. Amusement tax on admission. -The province shall impose a tax on admission to be collected from the proprietors, lessees, or operators of theaters, cinematographs, concert halls, circuses and other places of amusement xxx." The foregoing provision of law in point indicates that the province can only impose a tax on admission from the proprietors, lessees, or operators of theaters, cinematographs, concert halls, circuses and other places of amusement. The authority to tax professional basketball games is not therein included, as the same is expressly embraced in PD 1959, which amended PD 1456 thus: "SEC. 44. Section 268 of this Code, as amended, is hereby further amended to read as follows: ‘Sec. 268. Amusement taxes. -- There shall be collected from the proprietor, lessee or operator of cockpits, cabarets, night or day clubs, boxing exhibitions, professional basketball games, Jai-Alai, race tracks and bowling alleys, a tax equivalent to:

‘1. Eighteen per centum in the case of cockpits; ‘2. Eighteen per centum in the case of cabarets, night or day clubs; ‘3. Fifteen per centum in the case of boxing exhibitions; ‘4. Fifteen per centum in the case of professional basketball games as envisioned in Presidential Decree No. 871. Provided, however, That the tax herein shall be in lieu of all other percentage taxes of whatever nature and description; ‘5. Thirty per centum in the case of Jai-Alai and race tracks; and ‘6. Fifteen per centum in the case of bowling alleys of their gross receipts, irrespective of whether or not any amount is charged or paid for admission. For the purpose of the amusement tax, the term gross receipts’ embraces all the receipts of the proprietor, lessee or operator of the amusement place. Said gross receipts also include income from television, radio and motion picture rights, if any. (A person or entity or association conducting any activity subject to the tax herein imposed shall be similarly liable for said tax with respect to such portion of the receipts derived by him or it.) ‘The taxes imposed herein shall be payable at the end of each quarter and it shall be the duty of the proprietor, lessee, or operator concerned, as well as any party liable, within twenty days after the end of each quarter, to make a true and

complete return of the amount of the gross receipts derived during the preceding quarter and pay the tax due thereon. If the tax is not paid within the time prescribed above, the amount of the tax shall be increased by twentyfive per centum, the increment to be part of the tax. ‘In case of willful neglect to file the return within the period prescribed herein, or in case a false or fraudulent return is willfully made, there shall be added to the tax or to the deficiency tax, in case any payment has been made on the basis of the return before the discovery of the falsity or fraud, a surcharge of fifty per centum of its amount. The amount so added to any tax shall be collected at the same time and in the same manner and as part of the tax unless the tax has been paid before the discovery of the falsity or fraud, in which case, the amount so assessed shall be collected in the same manner as the tax." (underscoring ours) From the foregoing it is clear that the "proprietor, lessee or operator of xxx professional basketball games" is required to pay an amusement tax equivalent to fifteen per centum (15%) of their gross receipts to the Bureau of Internal Revenue, which payment is a national tax. The said payment of amusement tax is in lieu of all other percentage taxes of whatever nature and description. While Section 13 of the Local Tax Code mentions "other places of amusement", professional basketball games are definitely not within its scope. Under the principle of ejusdem generis, where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to

persons or things of the same kind or class as those specifically mentioned.[9] Thus, in determining the meaning of the phrase "other places of amusement", one must refer to the prior enumeration of theaters, cinematographs, concert halls and circuses with artistic expression as their common characteristic. Professional basketball games do not fall under the same category as theaters, cinematographs, concert halls and circuses as the latter basically belong to artistic forms of entertainment while the former caters to sports and gaming. A historical analysis of pertinent laws does reveal the legislative intent to place professional basketball games within the ambit of a national tax. The Local Tax Code, which became effective on June 28, 1973, allowed the province to collect a tax on admission from the proprietors, lessees, or operators of theaters, cinematographs, concert halls, circuses and other places of amusement. On January 6, 1976, the operation of petitioner was placed under the supervision and regulation of the Games and Amusement Board by virtue of PD 871, with the proviso (Section 8) that "xxx all professional basketball games conducted by the Philippine Basketball Association shall only be subject to amusement tax of five per cent of the gross receipts from the sale of admission tickets." Then, on June 11, 1978, PD 1456 came into effect, increasing the amusement tax to ten per cent, with a categorical referral to PD 871, to wit, "[t]en per centum in the case of professional basketball games as envisioned in Presidential Decree No. 871 xxx." Later in 1984, PD 1959 increased the rate of amusement tax to fifteen percent by making reference also to PD 871. With the reference to PD 871 by PD 1456 and PD 1959, there is a recognition under the laws of this country that the amusement tax on professional basketball games is a national, and not a local, tax. Even up to the present, the category of amusement taxes on professional basketball games as a national tax remains the same. This is so provided under Section 125[10] of the 1997 National Internal Revenue Code. Section 140[11] of the Local Government

Code of 1992 (Republic Act 7160), meanwhile, retained the areas (theaters, cinematographs, concert halls, circuses and other places of amusement) where the province may levy an amusement tax without including therein professional basketball games. Likewise erroneous is the stance of petitioner that respondent Commissioner’s issuance of BIR Ruling No. 231-86[12] and BIR Revenue Memorandum Circular No. 8-88[13] -- both upholding the authority of the local government to collect amusement taxes -- should bind the government or that, if there is any revocation or modification of said rule, the same should operate prospectively. It bears stressing that the government can never be in estoppel, particularly in matters involving taxes. It is a well-known rule that erroneous application and enforcement of the law by public officers do not preclude subsequent correct application of the statute, and that the Government is never estopped by mistake or error on the part of its agents.[14] Untenable is the contention that income from the cession of streamer and advertising spaces to VEI is not subject to amusement tax. The questioned proviso may be found in Section 1 of PD 1456 which states: "SECTION 1. Section 268 of the National Internal Revenue Code of 1977, as amended, is hereby further amended to read as follows: ‘Sec. 268. Amusement taxes. -- There shall be collected from the proprietor, lessee or operator of cockpits, cabarets, night or day clubs, boxing exhibitions, professional basketball games, Jai-Alai, race tracks and bowling alleys, a tax equivalent to:

xxx.....xxx.....xxx of their gross receipts, irrespective of whether or not any amount is charged or paid for admission. For the purpose of the amusement tax, the term gross receipts’ embraces all the receipts of the proprietor, lessee or operator of the amusement place. Said gross receipts also include income from television, radio and motion picture rights, if any. (A person, or entity or association conducting any activity subject to the tax herein imposed shall be similarly liable for said tax with respect to such portion of the receipts derived by him or it.)" (underscoring ours) The foregoing definition of gross receipts is broad enough to embrace the cession of advertising and streamer spaces as the same embraces all the receipts of the proprietor, lessee or operator of the amusement place. The law being clear, there is no need for an extended interpretation.[15] The last issue for resolution concerns the liability of petitioner for the payment of surcharge and interest on the deficiency amount due. Petitioner contends that it is not liable, as it acted in good faith, having relied upon the issuances of the respondent Commissioner. This issue must necessarily fail as the same has never been posed as an issue before the respondent court. Issues not raised in the court a quo cannot be raised for the first time on appeal.[16]

All things studiedly considered, the Court rules that the petitioner is liable to pay amusement tax to the national government, and not to the local government, in accordance with the rates prescribed by PD 1959.

a) Eighteen percent (18%) in the case of cockpits; b) Eighteen percent (18%) in the case of cabarets, night or day clubs;

party liable, within twenty (20) days after the end of each quarter, to make a true and complete return of the amount of the gross receipts derived during the preceding quarter and pay the tax due thereon. (Effective January 1, 1998) [11]

WHEREFORE, the Petition is DENIED, and the Decisions of the Court of Appeals and Court of Tax Appeals dated November 21, 1994 and December 24, 1993, respectively AFFIRMED. No pronouncement as to costs. SO ORDERED. Panganiban, and Gonzaga-Reyes, JJ., concur. Melo, (Chairman), and Vitug, JJ., in the result.

[1]

Penned by Associate Justice Pedro A. Ramirez and concurred by Associate Justices Quirino D. Abad Santos, Jr. and Eugenio S. Labitoria. [2] Rollo, pp. 44-62. [3] CTA Decision penned by Associate Judge Ramon O. de Veyra and concurred by Presiding Judge Ernesto D. Acosta and Associate Judge Manuel K. Gruba; Rollo, pp. 70-78. [4] Rollo, pp. 79-89. [5] Ibid., p. 90. [6] Ibid., pp. 33-40. [7] Ibid., p. 43. [8] See also BIR Revenue Memorandum Circular No. 8-88. [9] PNOC Shipping and Transport Corporation vs. Court of Appeals, 297 SCRA 402, 422 citing: Republic vs. Migriño, 189 SCRA 289, 296-297. [10]

SEC. 125. Amusement taxes. - There shall be collected from the proprietor, lessee or operator of cockpits, cabarets, night or day clubs, boxing exhibitions, professional basketball games, Jai-Alai and race tracks, a tax equivalent to:

c) Ten percent (10%) in the case of boxing exhibitions, provided, however, that boxing exhibitions wherein World or Oriental Championships in any division is at stake shall be exempt from amusement tax; provided, further, that at least one of the contenders for World or Oriental Championship is a citizen of the Philippines and said exhibitions are promoted by a citizen/s of the Philippines or by a corporation or association at least sixty percent (60%) of the capital of which is owned by such citizens;

SEC. 140. Amusement Tax. - (a) The province may levy an amusement tax to be collected from the proprietors, lessees, or operators of theaters, cinemas, concert halls, circuses, boxing stadia, and other places of amusement at a rate of not more than thirty percent (30%) of the gross receipts from admission fees. (b) In the case of theaters or cinemas, the tax shall first be deducted and withheld by their proprietors, lessees, or operators and the distributors of the cinematographic films.

d) Fifteen percent (15%) in the case of professional basketball games as envisioned in Presidential Decree No. 871; provided, however, that the tax herein shall be in lieu of all other percentage taxes of whatever nature and description; and

(c) The holding of operas, concerts, dramas, recitals, painting and art exhibitions, flower shows, musical programs, literary and oratorical presentations, except pop, rock, or similar concerts shall be exempt from the payment of the tax herein imposed.

e) Thirty percent (30%) in the case of Jai-Alai and race tracks of their gross receipts, irrespective of whether or not any amount is charged for admission.

(d) The sangguniang panlalawigan may prescribe the time, manner, terms and conditions for the payment of tax. In case of fraud or failure to pay the tax, the sangguniang panlalawigan may impose such surcharges, interests and penalties as it may deem appropriate.

For the purpose of the amusement tax, the term "gross receipts" embraces all the receipts of the proprietor, lessee or operator of the amusement place. Said gross receipts also include income from television, radio and motion picture rights, if any. A person or entity or association conducting any activity subject to the tax herein imposed shall be similarly liable for said tax with respect to such portion of the receipts derived by him or it. The taxes imposed herein shall be payable at the end of each quarter or month and it shall be the duty of the proprietor, lessee or operator concerned, as well as any

(e) The proceeds from the amusement tax shall be shared equally by the province and the municipality where such amusement places are located. [12]

["xxx.....xxx.....xxx

xxx this Office is of the opinion and hereby holds that the jurisdiction to levy amusement tax on gross receipts from admission tickets to places of amusement was indeed transferred to local government under P.D. No. 231, as amended. xxx"

[13]

["xxx the sole jurisdiction for collection of amusement tax on admission receipts in places of admission rests exclusively on the local government to the exclusion of the national government." [14] E. Rodriguez, Inc. vs. Collector of Internal Revenue, 28 SCRA 1119; United Christian Missionary Society vs. Social Security Commission, 30 SCRA 982. [15] Domingo vs. Commission on Audit, 297 SCRA 163; Republic vs. Court of Appeals, 299 SCRA 199. [16] Ruby Industrial Corporation vs. Court of Appeals, 284 SCRA 445; Salao vs. Court of Appeals, 284 SCRA 493; Heirs of Pascasio Uriarte vs. Court of Appeals, 284 SCRA 511.

Should

the

courts

review

of

the

Court

[1]

G.R. No. 155703

Promulgated: September 8, 2008

DECISION NACHURA, J.:

of

Decision dated September 23, 2002.

Respondent.

x-----------------------------------------------------------------------------------x

for

the question that confronts the Court in this petition for

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

DOMINADOR SANTUA,

petition

declaration, survey plan and technical description? This is

Present:

- versus -

a

reconstitution of a certificate of title on the basis of a tax

THIRD DIVISION THE REPUBLIC OF THEPHILIPPINES, Petitioner,

grant

Appeals

(CA)

The facts of the case are undisputed:

Attached to the petition were a tax declaration, survey plan, and technical description of each lot.

Exh. “D”

-

Technical description of Lot 5358-A-3-08-B, (LRC) PSD257136;

Exh. “E”

-

Technical description of Lot 5358-A-3-08-C, (LRC) PSD257136;

Exh. “F”

-

Technical description of Lot 5358-A-3-08-D, (LRC) PSD257136;

Exh. “G”

-

Technical description of Lot 5358-A-3-08-E, (LRC) PSD257136;

Exh. “H”

-

Technical description of Lot 5358-A-3-08-F, (LRC) PSD257136;

[2]

On February, 16, 1999, respondent Dominador Santua filed with the Regional Trial Court (RTC) of

On February 25, 1999, the RTC issued an

judicial

Order[3] setting the initial hearing of the case. It also

reconstitution of Transfer Certificate of Title (TCT) No. T-

directed the publication of the order in the Official Gazette,

22868. Respondent alleged that he is the registered owner

its posting at the main entrance of the Capitol Building and

of certain parcels of land with an area of 3,306 square

in the Municipal Building of Victoria, Calapan City, and

meters, situated inPoblacion, Victoria, Oriental Mindoro,

sending of copies thereof to all adjoining owners

and covered by TCT No. T-22868; the original copy of TCT

mentioned in the petition, the Register of Deeds, Provincial

No. T-22868 was among those destroyed by the fire that

Prosecutor, Director of Lands, Solicitor General and the

completely razed the Capitol Building then housing the

Administrator of the Land Registration Authority.

Calapan,

Oriental

Mindoro,

a

petition

for

Office of the Register of Deeds of Oriental Mindoro on August 12, 1977; the owner’s duplicate copy was lost while

Respondent complied with the jurisdictional

in respondent’s possession and all efforts exerted to locate

requirements. The court thus commissioned the Clerk of

the same proved futile; there are no co-owner’s,

Court to receive the respondent’s evidence and submit his

mortgagee’s, or lessee’s duplicate of said certificate of title;

findings to the court. Aside from the documents that delved

there are no buildings or improvements existing on said

into the jurisdictional aspect of the petition, respondent

land which do not belong to respondent; respondent and

offered the following documents in support of his petition:

his family are in actual possession of the property and Exh. “C” have been paying taxes thereon; and there exists no deeds or instrument affecting the property which have been presented for and pending registration in the Office of the Register of Deeds. The names and addresses of the adjoining property owners were enumerated in the petition.

-

Tax Declaration No. 15003-816 indicating the name of Dominador Santua as owner of the lots covered by TCT No. 22868;

Exh.

Exh.

“I”

-

Blue print plan of Lot 5358-A-3-08, (LRC) PSD251540 as surveyed for Dominador Santua, et al. “J”

- Certification dated September 24, 1982 issued by the Acting Register of Deeds of this province, certifying to the effect that all original certificates of title on file with the Registry were destroyed by reason of the fire that hit

the Capitol Buildin g housing the Office of the Register of Deeds on August 12, 1977.

never been offered as a bail bond or as collateral to secure a loan with any banking institution or any person. It has not been declared as null and void by any court or competent authority. It is not a subject of attachment.

Respondent testified that he is the registered owner of certain parcels of land known as Lot No. 5358-A-

The Provincial Assessor, Mr. Onisimo Naling,

3-0-8-B, with an area of 730 square meters; Lot No. 5358-

testified that the tax declaration submitted in evidence is a

A-3-0-8-C, with an area of 731 square meters; Lot No.

true and genuine tax declaration issued by their office.

5358-A-3-0-8-D, with an area of 731 square meters; Lot

Mrs. Flordeliza Villao, Records Officer III of the Register of

No. 5358-A-3-0-8-E, with an area of 731 square meters,

Deeds, testified that the Certification issued by her office is

and Lot No. 5358-A-3-0-8-F, with an area of 383 square

a true and genuine certification.

meters, or a total area of 3,306 square meters, situated in Poblacion, Victoria, Mindoro. The original copy of this title

The adjoining property owners were notified of

was among the documents destroyed on August 12,

the hearing of the petition but no one interposed any

1977 when fire razed the entire Capitol Building then

objection thereto.

housing the Office of the Register of Deeds, while the owner’s duplicate copy in the respondent’s possession was lost when their house was destroyed by the Intensity 7 earthquake that hit the province on November 15, 1994. There is no co-owner’s, mortgagee’s or lessee’s duplicate copy of said title previously issued by the Register of Deeds. There exist no deeds of instruments affecting the property, which have been presented to, or pending registration with, the Office of the Register of Deeds. It has

WHETHER OR NOT TAX DECLARATIONS, TECHNICAL DESCRIPTION AND LOT PLANS ARE SUFFICIENT BASES FOR THE RECONSTITUTION OF LOST OR DESTROYED CERTIFICATES OF TITLE[6]

On December 15, 2000, the RTC granted the petition, thus: ACCORDINGLY, finding the instant petition to be well-taken and there being no opposition thereto, same is hereby granted. The Register of Deeds of this province is hereby directed to reconstitute the original and the owner’s duplicate copies of Transfer Certificate of Title No. T22868 in the name of “DOMINADOR SANTUA, married to Natividad Paner, of legal age, Filipino citizen and a resident of Poblacion, Victoria, Oriental Mindoro” on the basis of the tax declaration, technical descriptions and plan of Lot No. 5358-A-3-0-8-B, Lot No. 5358-A-3-0-8-C, Lot No. 5358A-3-0-8-D, Lot No. 5358-A-3-0-8-E, and Lot No. 5358-A-3-0-8-F, (LRC) Psd 257136, thirty (30) days after receipt of this Order by the Register of Deeds of this province and the Land Registration Authority. SO ORDERED.[4]

SEC. 3. Transfer certificates of title shall be reconstituted from such of the sources hereunder enumerated as may be available, in the following order: (a) The owner’s duplicate of the certificate of title;

In a Comment/Manifestation[7] dated September 11,

2003,

respondent’s

counsel

manifested

that

respondent is submitting the petition for review for resolution without any comment from him.

Respondent’s waiver of the filing of a comment is unfortunate considering that we find the petition meritorious.

The reconstitution of a certificate of title denotes restoration in the original form and condition of a lost or destroyed instrument attesting the title of a person to a

On January 16, 2001, the Office of the Solicitor General filed a Notice of Appeal, which was given due course by the RTC.

piece

of

land.[8] It

partakes

of

a

land

registration

proceeding.[9] Thus, it must be granted only upon clear proof that the title sought to be restored was indeed issued to the petitioner.[10] In this regard, Section 3 of Republic Act

On September 23, 2002, the CA affirmed the RTC Decision.[5] Petitioner filed this petition for review raising the sole issue —

(b) The co-owner’s, mortgagee’s or lessee’s duplicate of the certificate of title; (c) A certified copy of the certificate of title, previously issued by the register of deeds or by a legal custodian thereof; (d) The deed of transfer or other document on file in the registry of deeds, containing the description of the property, or an authenticated copy thereof, showing that its original had been registered, and pursuant to which the lost or destroyed transfer certificate of title was issued; (e) A document, on file in the registry of deeds, by which the property the description of which is given in said documents, is mortgaged, leased or encumbered, or an authenticated copy of said document showing that its original had been registered; and (f) Any other document which, in the judgment of the court, is sufficient and proper basis for reconstituting the lost or destroyed certificate of title.

(RA) No. 26 enumerates the documents regarded as valid and sufficient bases for reconstitution of a transfer certificate of title:

The instant petition for reconstitution is anchored on Section 3(f) of RA No. 26, with respondent proffering

three significant documents — a tax declaration, survey

and

plan and technical descriptions of each lot.

The tax declaration obviously does not serve as

35.

[17]

Land

Registration

Commission

Circular

No.

Moreover, a survey plan or technical description

a valid basis for reconstitution. For one, we cannot safely

prepared at the instance of a party cannot be considered

The Court has already settled in a number of

rely on Tax Declaration No. 15003-816 as evidence of the

in his favor, the same being self-serving.[18] Further, in Lee

cases that, following the principle of ejusdem generis in

subject property being covered by TCT No. T-22868 in the

v. Republic,[19] the Court declared the reconstitution based

statutory construction, “any document” mentioned in

name of respondent because a tax declaration is executed

on a survey plan and technical descriptions void for lack of

Section 3 should be interpreted to refer to documents

for taxation purposes only and is actually prepared by the

factual support.

similar to those previously enumerated therein.

[11]

As aptly

alleged owner himself.

[14]

In fact, in Heirs of Eulalio Ragua

observed by the petitioner, the documents enumerated in

v. Court of Appeals,[15] the Court pronounced that a tax

Once again, we caution the courts against the

Section 3(a), (b), (c), (d) and (e) are documents that had

declaration is not a reliable source for the reconstitution of

hasty and reckless grant of petitions for reconstitution.

been issued or are on file with the Register of Deeds, thus,

a certificate of title.

Strict observance of the rules is vital to prevent parties

highly credible.

from exploiting reconstitution proceedings as a quick but At most, the tax declaration can only be prima

illegal way to obtain Torrens certificate of titles over

Moreover, they are documents from which the

facie evidence of possession or a claim of ownership,

parcels of land which turn out to be already covered by

particulars of the certificate of title or the circumstances

which however is not the issue in a reconstitution

existing titles.[20] Courts should bear in mind that should the

which brought about its issuance could readily be

proceeding. A reconstitution of title does not pass upon the

petition for reconstitution be denied for lack of sufficient

ascertained. After

ownership of the land covered by the lost or destroyed

basis, the petitioner is not left without a remedy. He may

all,

the

purpose

of

reconstitution

[16]

proceedings under RA No. 26 is the restoration in the

title

but merely determines whether a re-issuance of

original form and condition of a lost or destroyed

such title is proper.

provisions of the Land Registration Act, if he is in fact the lawful owner.[21]

instrument attesting the title of a person to a piece of land.[12] Consequently,

a

petitioner’s

documentary

still file an application for confirmation of his title under the

As

for

the

survey

plan

and

technical

evidence should be able to establish that the lost or

descriptions, the Court has previously dismissed the same

WHEREFORE,

premises

destroyed certificate of title has, in fact, been issued to the

as not the documents referred to in Section 3(f) but merely

petition is GRANTED. The Decision of the Court of

petitioner or his predecessor-in-interest and such title was

additional documents that should accompany the petition

Appeals

in force at the time it was lost or destroyed.[13]

for reconstitution as required under Section 12 of RA 26

dated September

considered,

the

23,

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson, Third Division

2002 is REVERSED and SET ASIDE. The petition for reconstitution is DENIED.

CERTIFICATION SO ORDERED.

ANTONIO

EDUARDO

B.

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

NACHURA Associate Justice REYNATO S. PUNO Chief Justice

WE CONCUR:

[1]

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

Penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justices Conrado M. Vasquez, Jr. (now Presiding Justice) and Regalado E. Maambong, concurring; rollo, pp. 51-60.

property or has an interest therein, that the said certificate of title was in force at the time it was lost or destroyed, and that the description, area and boundaries of the property are substantially the same as those contained in the lost or destroyed certificate of title, an order of reconstitution shall be issued. The clerk of court shall forward to the register of deeds a certified copy of said order and all the documents, which pursuant to said order, are to be used as the basis of the reconstitution. If the court finds that there is no sufficient evidence or basis to justify the reconstitution, the petition shall be dismissed, but each dismissal shall not preclude the right of the party or parties entitled thereto to file an application for confirmation of his or their title under the provisions of the Land Registration Act. (Emphasis supplied.) [14] See Section 202, Chapter II, Local Government Code. [15] 381 Phil. 7 (2000). [16] Amoroso v. Alegre, Jr., G.R. No. 142766, June 15, 2007, 524 SCRA 641, 653. [17] Heirs of Dizon v. Discaya, supra note 11, at 545. [18] Rizal Cement Co., Inc. v. Villareal, No. L30272, February 28, 1985, 135 SCRA 15, 23, reiterated in Republic v. El Gobierno de las Islas Filipinas, 459 SCRA 533, 547 (2005). [19] Supra note 8.

[2]

MA. ALICIA MARTINEZ Associate Justice

AUSTRIA-

MINITA V. CHICONAZARIO Associate Justice

RUBEN T. REYES Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

Rollo, pp. 61-62. Id. at 73. Id. at 100. [5] Id. at 51-60. [6] Id. at 38. [7] Id. at 138-139. [8] Lee v. Republic, 418 Phil. 793, 803 (2001). [9] Republic v. Intermediate Appellate Court, G.R. No. L-68303, January 15, 1988, 157 SCRA 62, 66. [10] Republic v. Sanchez, G.R. No. 146081, July 17, 2006, 495 SCRA 248, 274. [11] Republic v. Holazo, G.R. No. 146846, August 31, 2004, 437 SCRA 345; Heirs of Dizon v. Discaya, 362 Phil. 536, 544 (1999); Republic v. Intermediate Appellate Court, supra note 9. [12] Republic v. Sanchez, supra note 10. [13] Section 15 of RA 26 states: SEC. 15. If the court, after hearing, finds that the documents presented, as supported by parole evidence or otherwise, are sufficient and proper to warrant the reconstitution of the lost or destroyed certificate of title, and that the petitioner is the registered owner of the [3]

[20]

[4]

[21]

Republic v. Sanchez, supra note 10. Section 15, RA No. 26, supra note 13.

Republic SUPREME Manila

of

the

Philippines COURT

SECOND DIVISION

G.R. No. 113092 September 1, 1994 MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALON-PORNILLOS, Presiding Judge of the Regional Trial Court of Malolos, Bulacan,

Branch 10, and THE PHILIPPINES, respondents.

PEOPLE

OF

THE

Santiago V. Marcos, Jr. for petitioner.

REGALADO, J.: It is indeed unfortunate that a group of elderly men, who were moved by their desire to devote their remaining years to the service of their Creator by forming their own civic organization for that purpose, should find themselves enmeshed in a criminal case for making a solicitation from a community member allegedly without the required permit from the Department of Social Welfare and Development. The records of this case reveal that sometime in the last quarter of 1985, the officers of a civic organization known as the Samahang Katandaan ng Nayon ng Tikay launched a fund drive for the purpose of renovating the chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the chairman of the group, together with Vicente Yco, approached Judge Adoracion G. Angeles, a resident of Tikay, and solicited from her a contribution of P1,500.00. It is admitted that the solicitation was made without a permit from the Department of Social Welfare and Development. As a consequence, based on the complaint of Judge Angeles, an information 1 was filed against petitioner Martin Centeno, together with Religio Evaristo and Vicente Yco, for violation of Presidential Decree No. 1564, or the Solicitation Permit Law, before the Municipal Trial Court of Malolos, Bulacan, Branch 2, and docketed as Criminal Case No. 2602. Petitioner filed a motion to quash the information 2 on the ground that the facts alleged therein do not constitute an offense, claiming that Presidential Decree No. 1564 only covers solicitations made for charitable or public welfare purposes, but not those made for a religious purpose such as the construction of a chapel. This was denied 3 by the trial court, and petitioner's motion for reconsideration having met the same fate, trial on the merits ensued.

On December 29, 1992, the said trial court rendered judgment 4 finding accused Vicente Yco and petitioner Centeno guilty beyond reasonable doubt and sentencing them to each pay a fine of P200.00. Nevertheless, the trial court recommended that the accused be pardoned on the basis of its finding that they acted in good faith, plus the fact that it believed that the latter should not have been criminally liable were it not for the existence of Presidential Decree No. 1564 which the court opined it had the duty to apply in the instant case. Both accused Centeno and Yco appealed to the Regional Trial Court of Malolos, Bulacan, Branch 10. However, accused Yco subsequently withdrew his appeal, hence the case proceeded only with respect to petitioner Centeno. On May 21, 1993, respondent Judge Villalon-Pornillos affirmed the decision of the lower court but modified the penalty, allegedly because of the perversity of the act committed which caused damage and prejudice to the complainant, by sentencing petitioner Centeno to suffer an increased penalty of imprisonment of 6 months and a fine of P1,000.00, without subsidiary imprisonment in case of insolvency. 5 The motion for reconsideration of the decision was denied by the court. 6 Thus it is that a fine of P200.00 imposed as a penalty by the lowest court in the judicial hierarchy eventually reached this highest tribunal, challenged on the sole issue of whether solicitations for religious purposes are within the ambit of Presidential Decree No. 1564. Quantitatively, the financial sanction is a nominal imposition but, on a question of principle, it is not a trifling matter. This Court is gratified that it can now grant this case the benefit of a final adjudication. Petitioner questions the applicability of Presidential Decree No. 1564 to solicitations for contributions intended for religious purposes with the submissions that (1) the term "religious purpose" is not expressly included in the provisions of the statute, hence what the law does not include, it excludes; (2) penal laws are to be construed strictly against the State and liberally in favor of the accused; and (3) to subject to State regulation solicitations made for a religious purpose would constitute an abridgment of the right to freedom of religion guaranteed under the Constitution.

Presidential Decree No. 1564 (which amended Act No. 4075, otherwise known as the Solicitation Permit Law), provides as follows: Sec. 2. Any person, corporation, organization, or association desiring to solicit or receive contributions for charitable or public welfare purposes shall first secure a permit from the Regional Offices of the Department of Social Services and Development as provided in the Integrated Reorganization Plan. Upon the filing of a written application for a permit in the form prescribed by the Regional Offices of the Department of Social Services and Development, the Regional Director or his duly authorized representative may, in his discretion, issue a permanent or temporary permit or disapprove the application. In the interest of the public, he may in his discretion renew or revoke any permit issued under Act 4075. The main issue to be resolved here is whether the phrase "charitable purposes" should be construed in its broadest sense so as to include a religious purpose. We hold in the negative. I. Indeed, it is an elementary rule of statutory construction that the express mention of one person, thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim "expressio unius est exclusio alterius." Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. 7 It will be observed that the 1987 Constitution, as well as several other statutes, treat the words "charitable" and "religious" separately and independently of each other.

Thus, the word "charitable" is only one of three descriptive words used in Section 28 (3), Article VI of the Constitution which provides that "charitable institutions, churches and personages . . ., and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation." There are certain provisions in statutes wherein these two terms are likewise dissociated and individually mentioned, as for instance, Sections 26 (e) (corporations exempt from income tax) and 28 (8) (E) (exclusions from gross income) of the National Internal Revenue Code; Section 88 (purposes for the organization of non-stock corporations) of the Corporation Code; and Section 234 (b) (exemptions from real property tax) of the Local Government Code. That these legislative enactments specifically spelled out "charitable" and "religious" in an enumeration, whereas Presidential Decree No. 1564 merely stated "charitable or public welfare purposes," only goes to show that the framers of the law in question never intended to include solicitations for religious purposes within its coverage. Otherwise, there is no reason why it would not have so stated expressly. All contributions designed to promote the work of the church are "charitable" in nature, since religious activities depend for their support on voluntary contributions. 8 However, "religious purpose" is not interchangeable with the expression "charitable purpose." While it is true that there is no religious purpose which is not also a charitable purpose, yet the converse is not equally true, for there may be a "charitable" purpose which is not "religious" in the legal sense of the term. 9 Although the term "charitable" may include matters which are "religious," it is a broader term and includes matters which are not "religious," and, accordingly, there is a distinction between "charitable purpose" and "religious purpose," except where the two terms are obviously used synonymously, or where the distinction has been done away with by statute.10 The word "charitable," therefore, like most other words, is capable of different significations. For example, in the law, exempting charitable uses from taxation, it has a very wide meaning, but under Presidential Decree No. 1564 which is a penal law, it cannot be given such a broad application since it would be prejudicial to petitioners.

To illustrate, the rule is that tax exemptions are generally construed strictly against the taxpayer. However, there are cases wherein claims for exemption from tax for "religious purposes" have been liberally construed as covered in the law granting tax exemptions for "charitable purposes." Thus, the term "charitable purposes," within the meaning of a statute providing that the succession of any property passing to or for the use of any institution for purposes only of public charity shall not be subject to succession tax, is deemed to include religious purposes. 11A gift for "religious purposes" was considered as a bequest for "charitable use" as regards exemption from inheritance tax.12 On the other hand, to subsume the "religious" purpose of the solicitation within the concept of "charitable" purpose which under Presidential Decree No. 1564 requires a prior permit from the Department of Social Services and Development, under paid of penal liability in the absence thereof, would be prejudicial to petitioner. Accordingly, the term "charitable" should be strictly construed so as to exclude solicitations for "religious" purposes. Thereby, we adhere to the fundamental doctrine underlying virtually all penal legislations that such interpretation should be adopted as would favor the accused. For, it is a well-entrenched rule that penal laws are to be construed strictly against the State and liberally in favor of the accused. They are not to be extended or enlarged by implications, intendments, analogies or equitable considerations. They are not to be strained by construction to spell out a new offense, enlarge the field of crime or multiply felonies. Hence, in the interpretation of a penal statute, the tendency is to subject it to careful scrutiny and to construe it with such strictness as to safeguard the rights of the accused. If the statute is ambiguous and admits of two reasonable but contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. The principle is that acts in and of themselves innocent and lawful cannot be held to be criminal unless there is a clear and unequivocal expression of the legislative intent to make them such. Whatever is not plainly within the provisions of a penal statute should be regarded as without its intendment. 13

The purpose of strict construction is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts. 14 The word "charitable" is a matter of description rather than of precise definition, and each case involving a determination of that which is charitable must be decided on its own particular facts and circumstances. 15 The law does not operate in vacuo nor should its applicability be determined by circumstances in the abstract. Furthermore, in the provisions of the Constitution and the statutes mentioned above, the enumerations therein given which include the words "charitable" and "religious" make use of the disjunctive "or." In its elementary sense, "or" as used in a statute is a disjunctive article indicating an alternative. It often connects a series of words or propositions indicating a choice of either. When "or" is used, the various members of the enumeration are to be taken separately. 16 Accordingly, "charitable" and "religious," which are integral parts of an enumeration using the disjunctive "or" should be given different, distinct, and disparate meanings. There is no compelling consideration why the same treatment or usage of these words cannot be made applicable to the questioned provisions of Presidential Decree No. 1564. II. Petitioner next avers that solicitations for religious purposes cannot be penalized under the law for, otherwise, it will constitute an abridgment or restriction on the free exercise clause guaranteed under the Constitution. It may be conceded that the construction of a church is a social concern of the people and, consequently, solicitations appurtenant thereto would necessarily involve public welfare. Prefatorily, it is not implausible that the regulatory powers of the State may, to a certain degree, extend to solicitations of this nature. Considering, however, that such an activity is within the cloak of the free exercise clause under the right to freedom of religion guaranteed by the Constitution, it becomes imperative to delve into the efficaciousness of a statutory grant of the power to regulate the exercise of this constitutional right and the allowable restrictions which may possibly be imposed thereon.

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the constitution embraces two concepts, that is, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definitions to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised, in attaining a permissible end, as not to unduly infringe on the protected freedom. 17 Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort, or convenience. 18 It does not follow, therefore, from the constitutional guaranties of the free exercise of religion that everything which may be so called can be tolerated. 19 It has been said that a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the "free exercise" of religion merely because it also incidentally has a detrimental effect on the adherents of one or more religion. 20 Thus, the general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise. 21 Even with numerous regulative laws in existence, it is surprising how many operations are carried on by persons

and associations who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them. The State has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitation of contributions under the guise of charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. 22 The objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which naturally suffer when the confidence of the public in campaigns for the raising of money for charity is lessened or destroyed. 23 Some regulation of public solicitation is, therefore, in the public interest. 24 To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power. However, in the case at bar, considering that solicitations intended for a religious purpose are not within the coverage of Presidential Decree No. 1564, as earlier demonstrated, petitioner cannot be held criminally liable therefor. As a final note, we reject the reason advanced by respondent judge for increasing the penalty imposed by the trial court, premised on the supposed perversity of petitioner's act which thereby caused damage to the complainant. It must be here emphasized that the trial court, in the dispositive portion of its decision, even recommended executive clemency in favor of petitioner and the other accused after finding that the latter acted in good faith in making the solicitation from the complainant, an observation with which we fully agree. After all, mistake upon a doubtful and difficult question of law can be the basis of good faith, especially for a layman. There is likewise nothing in the findings of respondent judge which would indicate, impliedly or otherwise, that petitioner and his co-accused acted abusively or malevolently. This could be reflective upon her objectivity,

considering that the complainant in this case is herself a judge of the Regional Trial Court at Kalookan City. It bears stressing at this point that a judge is required to so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary, 25 should be vigilant against any attempt to subvert its independence, and must resist any pressure from whatever source. 26 WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and petitioner Martin Centeno is ACQUITTED of the offense charged, with costs de oficio. SO ORDERED. Narvasa, C.J. and Puno, JJ., concur.

Separate Opinions

MENDOZA, J.: I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or public welfare purposes." My reasons are three-fold. First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls upon the virtue of

faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philantrophic as much as the religious fervor of the person who is solicited for contribution. Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually conducted among those belonging to the same religion, the need for public protection against fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for charity or civic projects so as to justify state regulation. Third. To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may engage in business could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior permit for public assemblies and other uses of public parks and streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is not fairly possible by which a constitutional violation may be avoided. For these reasons, I vote to reverse the decision appealed from and to acquit petitioner. Padilla, J., concurs.

# Separate Opinions

MENDOZA, J.:

I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or public welfare purposes." My reasons are three-fold. First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philantrophic as much as the religious fervor of the person who is solicited for contribution. Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually conducted among those belonging to the same religion, the need for public protection against fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for charity or civic projects so as to justify state regulation. Third. To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may engage in business could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior permit for public assemblies and

other uses of public parks and streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is not fairly possible by which a constitutional violation may be avoided. For these reasons, I vote to reverse the decision appealed from and to acquit petitioner. Padilla, J., concurs. #Footnotes

1 Annex A, Petition; Rollo, 25. 2 Annex B, id.; ibid., 20. 3 Annex D, id.; ibid., 34. 4 Annex G, id.; ibid., 40. 5 Annex H, id.; ibid., 44. 6 Annex J, id.; ibid., 64. 7 Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos. 48886-88, July 21, 1993, 224 SCRA 665. 8 Scobey vs. Beckman, 41 N.E. 2d 84. 9 See Adye vs. Smith, 26 Am. Rep. 424. 10 See Read vs. McLean, 200 So. 109.

11 In re Seaman's Estate, 139 N.E. 2d 17.

MENDOZA, J., concurring: 1 101 Phil. 386 (1957).

12 In re Clark's Estate, 159 A. 500. 2 B.P. Blg. 880, § 3(a). 13 Martin, Statutory 1979 ed., 183.

Construction, EN BANC

14 Gaanan vs. Intermediate Appellate Court, et al., G.R. No. 69809, October 16, 1986, 145 SCRA 112. [G.R. No. 146943. October 4, 2002] 15 Topeka Presbyterian Manor, Inc. vs. Board, 402 P. ed. 802. 16 Martin, op. cit., 81. 17 Cantwell vs. Connecticut, 301 U.S. 296 (1940).

SARIO MALINIAS, petitioner, vs. THE COMMISSION ON ELECTIONS, TEOFILO CORPUZ, ANACLETO TANGILAG and VICTOR DOMINGUEZ,respondents. DECISION

18 Id., loc. cit.

CARPIO, J.: 19 16 Am. Jur. 2d, Constitutional Law, 283. The Case 20 Ibid., id., 282. 21 Cantwell vs. Connecticut, supra. 22 Id., loc. cit. 23 City of Seattle vs. Rogers, 106 P. 2d 598. 24 Commonwealth vs. Creighton, et al., 170 A. 720. 25 Rule Conduct.

2.01,

26 Rule 1.03. id.

Code

of

Judicial

Before us is a petition for review on certiorari[1] of the Resolutions of the Commission on Elections (“COMELEC” for brevity) en banc[2] dated June 10, 1999 and October 26, 2000. The assailed Resolutions dismissed the complaint[3] filed by petitioner Sario Malinias (“Malinias” for brevity) and Roy S. Pilando (“Pilando” for brevity) for insufficiency of evidence to establish probable cause for violation of Section 25 of Republic Act No. 6646[4] and Sections 232 and 261 (i) of Batas Pambansa Blg. 881.[5]

The Facts

Petitioner Malinias was a candidate for governor whereas Pilando was a candidate for congressional representative of Mountain Province in the May 11, 1998 elections.[6] The Provincial Board of Canvassers held the canvassing of election returns at the second floor of the Provincial Capitol Building in Bontoc, Mountain Province from May 11, 1998 to May 15, 1998.[7] On July 31, 1998, Malinias and Pilando filed a complaint with the COMELEC’s Law Department for violation of Section 25 of R.A. No. 6646, and Sections 232 and 261 (i) of B.P. Blg. 881, against Victor Dominguez, Teofilo Corpuz, Anacleto Tangilag, Thomas Bayugan, Jose Bagwan who was then Provincial Election Supervisor, and the members of the Provincial Board of Canvassers. Victor Dominguez (“Dominguez” for brevity) was then the incumbent Congressman of Poblacion, Sabangan, Mountain Province. Teofilo Corpuz (“Corpuz” for brevity) was then the Provincial Director of the Philippine National Police in Mountain Province while Anacleto Tangilag (“Tangilag” for brevity) was then the Chief of Police of the Municipality of Bontoc, Mountain Province. Malinias and Pilando alleged that on May 15, 1998 a police checkpoint at Nacagang, Sabangan, Mountain Province blocked their supporters who were on their way to Bontoc, and prevented them from proceeding to the Provincial Capitol Building. Malinias and Pilando further alleged that policemen, upon orders of private respondents, prevented their supporters, who nevertheless eventually reached the Provincial Capitol Building, from entering the capitol grounds. In their complaint, Malinias and Pilando requested the COMELEC and its Law Department to investigate and prosecute private respondents for the following alleged unlawful acts. “3. That on May 15, 1998 at the site of the canvassing of election returns for congressional and provincial returns located at the second floor of the Provincial Capitol Building the public and particularly the designated representatives/watchers of both affiants were prevented from attending the canvassing.

xxx 4. That the aforementioned “Mass-affidavits” support our allegations in this affidavit-complaint that we and our supporters were prevented from attending the provincial canvassing because of the illegal checkpoint/blockade setup by policemen in Nakagang, Tambingan, Sabangan, Mt. Province and as an evidence to these allegations, Certification of the Police Station is hereto attached as Annex “D” and affidavits of supporters hereto attached as Annex “E”, both made an integral part of this affidavitcomplaint; and that said “mass-affidavits” show that the Provincial canvassing were not made public or (sic) candidates and their representatives/watchers prevented because of barricade, closure of canvassing rooms, blockade by armed policemen that coerce or threaten the people, the candidates or their representatives from attending the canvassing;[8] In support of the complaint, several supporters of Malinias and Pilando executed so-called “mass affidavits” uniformly asserting that private respondents, among others, (1) prevented them from attending the provincial canvassing, (2) padlocked the canvassing area, and (3) threatened the people who wanted to enter the canvassing room. They likewise alleged that the Provincial Board of Canvassers never allowed the canvassing to be made public and consented to the exclusion of the public or representatives of other candidates except those of Dominguez.[9] Consequently, the COMELEC’s Law Department conducted a preliminary investigation during which only Corpuz and Tangilag submitted their joint CounterAffidavit. In their Counter-Affidavit, Corpuz and Tangilag admitted ordering the setting up of a checkpoint at Nacagang, Sabangan, Mountain Province and securing the vicinity of the Provincial Capitol Building, to wit: “3. We admit having ordered the setting up of check points in Nakagang, Tambingan, Sabangan, Mountain Province; as in fact, this is not the only checkpoint set up in the province. There are other checkpoints established in other parts of the province, to enforce the COMELEC gun ban

and other pertinent rules issued by the Commission on Election during the election period. 4. Policemen were posted within the vicinity of the capitol grounds in response to earlier information that some groups were out to disrupt the canvass proceedings which were being conducted in the second floor of the Provincial Capitol Building. This is not remote considering that this had happened in the past elections. In fact, during the canvass proceeding on May 15, 1998 a large group of individuals identified with no less than affiantscomplainants Roy S. Pilando and Sario Malinias was conducting a rally just in front of the capitol, shouting invectives at certain candidates and their leaders. This group likewise were holding placards and posted some in front of the capitol building. x x x”[10] After the investigation, in a study dated May 26, 1999, the COMELEC’s Law Department recommended to the COMELEC en banc the dismissal of the complaint for lack of probable cause.[11] In a Resolution dated June 10, 1999, the COMELEC en banc dismissed the complaint of Malinias and Pilando for insufficiency of evidence to establish probable cause against private respondents. On October 26, 2000, the COMELEC dismissed Malinias’ Motion for Reconsideration.

disclosed that the lawyers of LAMMP, the watchers, supporters of other candidates and representatives of the Integrated Bar of the Philippines were present at one time or another during the canvass proceedings. The minutes does not indicate any charges of irregularities inside and within the vicinity of the canvassing room. Pursuant to Comelec Res. No. 2968 promulgated on January 7, 1998, checkpoints were established in the entire country to effectively implement the firearms ban during the election period from January 11, 1998 to June 10, 1998. In Mountain Province, there were fourteen (14) checkpoints established by the Philippine National Police way before the start of the campaign period for the May 11, 1998 elections including the subject checkpoint at Nacagang, Tambingan, Sabangan, Mountain Province. Thus, the checkpoint at Sabangan, Mountain Province was not established as alleged only upon request of Congressman Dominguez on May 15, 1998 but way before the commencement of the campaign period. Granting arguendo that the Congressman did make a request for a checkpoint at Sitio Nacagang, it would be a mere surplusage as the same was already existing. Furthermore, an alleged text of a radio message requesting advice from the PNP Provincial Director at Bontoc, Mt. Province was attached to complainants’ affidavit-complaint. However, said person by the name of Mr. Palicos was never presented to affirm the truth of the contents and the signature appearing therein.”[12]

Hence, Malinias filed the instant petition. Finding that Malinias failed to adduce new evidence, the COMELEC dismissed Malinias’ Motion for Reconsideration.[13]

The Comelec’s Ruling

In dismissing the complaint against respondents, the COMELEC ruled as follows:

private

“As appearing in the Minutes of Provincial Canvass, complainant Roy Pilando was present during the May 15, 1998 Provincial Canvass. He even participated actively in a discussion with the members of the Board and the counsel of Congressman Dominguez. The minutes also

The Court’s Ruling

The sole issue for resolution is whether the COMELEC gravely abused its discretion in dismissing Malinias and Pilando’s complaint for insufficiency of evidence to establish probable cause for alleged violation of Section 25 of R.A. No. 6646 and Sections 232 and 261 (i) of B.P. 881.

We rule that the COMELEC did not commit grave abuse of discretion. For this Court to issue the extraordinary writ of certiorari, the tribunal or administrative body must have issued the assailed decision, order or resolution in a capricious and despotic manner. “There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility, amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law.”[14] Such is not the situation in the instant case. The COMELEC dismissed properly the complaint of Malinias and Pilando for insufficient evidence, and committed no grave abuse of discretion amounting to lack or excess of jurisdiction. First, Malinias charged private respondents with alleged violation of Section 25 of Republic Act No. 6646, quoted, as follows:

As found by the COMELEC and admitted by Malinias, Pilando was present and even participated actively in the canvassing.[15] Malinias failed to show that his rights as a gubernatorial candidate were prejudiced by the alleged failure of his supporters to attend the canvassing. Malinias claimed that even though Pilando was present during the canvassing, the latter was only able to enter the room after eluding the policemen and passing through the rear entrance of the Provincial Capitol Building.[16] This allegation, however, is not supported by any clear and convincing evidence. Pilando himself, who was purportedly prevented by policemen from entering the canvassing room, failed to attest to the veracity of this statement rendering the same self-serving and baseless. In an analogous case where a political candidate’s watcher failed to attend the canvass proceedings, this Court held: “Another matter which militates against the cause of petitioner is that he has not shown that he suffered prejudice because of the failure of his watcher to attend the canvassing. Had the watcher been present, what substantive issues would he have raised? Petitioner does not disclose. Could it be that even if the watcher was present, the result of the canvassing would have been the same?”

“Sec. 25. Right to be Present and to Counsel During the Canvass. – Any registered political party, coalition of parties, through their representatives, and any candidate has the right to be present and to counsel during the canvass of the election returns; Provided, That only one counsel may argue for each political party or candidate. They shall have the right to examine the returns being canvassed without touching them, make their observations thereon, and file their challenge in accordance with the rules and regulations of the Commission. No dilatory action shall be allowed by the board of canvassers.”

There is therefore no merit in petitioner’s claim that respondent Commission on Elections gravely abused its discretion in issuing its questioned decision. And, as emphatically stated in Sidro v. Comelec, 102 SCRA 853, this Court has invariably followed the principle that “in the absence of any jurisdictional infirmity or an error of law of the utmost gravity, the conclusion reached by the respondent Commission on a matter that falls within its competence is entitled to the utmost respect, xxx.” There is justification in this case to reiterate this principle.”[17]

In the present case, Malinias miserably failed to substantiate his claim that private respondents denied him his right to be present during the canvassing. There was even no showing that Malinias was within the vicinity of the Provincial Capitol Building or that private respondents prevented him from entering the canvassing room.

Assuming that Pilando in fact entered the canvassing room only after successfully evading the policemen surrounding the Provincial Capitol grounds, Pilando could have easily complained of this alleged unlawful act during the canvass proceedings. He could have immediately reported the matter to the Provincial Board of Canvassers as a violation of Section 25 of R.A. No. 6646. However, Pilando opted simply to raise

questions on alleged irregularities in the municipal canvassing.[18] While he had the opportunity to protest the alleged intimidation committed by policemen against his person, it is quite surprising that he never mentioned anything about it to the Provincial Board of Canvassers. Surprisingly, the COMELEC and private respondents apparently overlooked that R.A. No. 6646 does not punish a violation of Section 25 of the law as a criminal election offense. Section 25 merely highlights one of the recognized rights of a political party or candidate during elections, aimed at providing an effective safeguard against fraud or irregularities in the canvassing of election returns. Section 27[19] of R.A. No. 6646, which specifies the election offenses punishable under this law, does not include Section 25. Malinias further claims that, in violation of this right, his supporters were blocked by a checkpoint set-up at Nacagang, Sabangan, Mountain Province. This allegation is devoid of any basis to merit a reversal of the COMELEC’s ruling. Malinias’ supporters who were purportedly blocked by the checkpoint did not confirm or corroborate this allegation of Malinias. Moreover, the police established checkpoints in the entire country to implement the firearms ban during the election period. Clearly, this is in consonance with the constitutionally ordained power of the COMELEC to deputize government agencies and instrumentalities of the Government for the exclusive purpose of ensuring free, orderly, honest, peaceful and credible elections.[20] Second, Malinias maintains that Corpuz and Tangilag entered the canvassing room in blatant violation of Section 232 of B.P. Blg. 881. His sole basis for this allegation is the affidavit of his supporters who expressly stated that they saw Dominguez and Corpuz (only) enter the canvassing room.[21] Malinias likewise contends that “Corpuz and Tangilag impliedly admitted that they were inside or at least within the fifty (50) meter radius of the canvassing room as they were able to mention the names of the persons who were inside the canvassing room in their Counter-Affidavit.”[22] The provision of law which Corpuz and Tangilag allegedly violated is quoted as follows:

“Sec. 232. Persons not allowed inside the canvassing room. – It shall be unlawful for any officer or member of the Armed Forces of the Philippines, including the Philippine Constabulary, or the Integrated National Police or any peace officer or any armed or unarmed persons belonging to an extra-legal police agency, special forces, reaction forces, strike forces, home defense forces, barangay selfdefense units, barangay tanod, or of any member of the security or police organizations or government ministries, commissions, councils, bureaus, offices, instrumentalities, or government-owned or controlled corporation or their subsidiaries or of any member of a privately owned or operated security, investigative, protective or intelligence agency performing identical or similar functions to enter the room where the canvassing of the election returns are held by the board of canvassers and within a radius of fifty meters from such room: Provided, however, That the board of canvassers by a majority vote, if it deems necessary, may make a call in writing for the detail of policemen or any peace officers for their protection or for the protection of the election documents and paraphernalia in the possession of the board, or for the maintenance of peace and order, in which case said policemen or peace officers, who shall be in proper uniform, shall stay outside the room within a radius of thirty meters near enough to be easily called by the board of canvassers at any time.”

“It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others. The rule is expressed in the familiar maxim, expressio unius est exclusio alterius.

Again, the COMELEC and private respondents overlooked that Section 232 of B.P. Blg. 881 is not one of the election offenses explicitly enumerated in Sections 261 and 262 of B.P. Blg. 881. While Section 232 categorically states that it is unlawful for the persons referred therein to enter the canvassing room, this act is not one of the election offenses criminally punishable under Sections 261 and 262 of B.P. Blg. 881. Thus, the act involved in Section 232 of B.P. Blg. 881 is not punishable as a criminal election offense. Section 264 of B.P. Blg. 881 provides that the penalty for an election offense under Sections 261 and 262 is imprisonment of not less than one year but not more than six years.

Also, since private respondents are being charged with a criminal offense, a strict interpretation in favor of private respondents is required in determining whether the acts mentioned in Section 232 are criminally punishable under Sections 261[24] and 262[25] of B.P. Blg. 881. Since Sections 261 and 262, which lists the election offenses punishable as crimes, do not include Section 232, a strict interpretation means that private respondents cannot be held criminally liable for violation of Section 232.

Under the rule of statutory construction of expressio unius est exclusio alterius, there is no ground to order the COMELEC to prosecute private respondents for alleged violation of Section 232 of B.P. Blg. 881 precisely because this is a non-criminal act.

The rule of expressio unius est exclusio alterius is formulated in a number of ways. One variation of the rule is the principle that what is expressed puts an end to that which is implied. Expressium facit cessare tacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. xxx The rule of expressio unius est exclusio alterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon one’s own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.”[23]

This is not to say that a violation of Section 232 of B.P. Blg. 881 is without any sanction. Though not a criminal election offense, a violation of Section 232 certainly warrants, after proper hearing, the imposition of administrative penalties. Under Section 2, Article IX-C of the Constitution, the COMELEC may recommend to the President the imposition of disciplinary action on any officer or employee the COMELEC has deputized for violation of its directive, order or decision.[26] Also, under the Revised Administrative Code,[27] the COMELEC may recommend to the proper authority the suspension or removal of any government official or employee found

guilty of violation of election laws or failure to comply with COMELEC orders or rulings. In addition, a careful examination of the evidence presented by Malinias shows that the same are insufficient to justify a finding of grave abuse of discretion on the part of the COMELEC. Obviously, the evidence relied upon by Malinias to support his charges consisted mainly of affidavits prepared by his own supporters. The affidavits of Malinias’ own supporters, being self-serving, cannot be accepted at face value under the circumstances. As this Court has often stated, “reliance should not be placed on mere affidavits.”[28] Besides, if Corpuz really entered the canvassing room, then why did Pilando and the representatives of other candidates, who were inside the room, fail to question this alleged wrongful act during the canvassing? Malinias’ contention that Corpuz and Tangilag impliedly admitted they were inside the canvassing room because they mentioned the names of the persons present during the canvassing deserves scant consideration as the same is not supported by any evidence. Finally, Malinias asserts that private respondents should be held liable for allegedly violating Section 261 (i) of B. P. Blg. 881 because the latter engaged in partisan political activity. This provision states: “Sec. 261 (i) Intervention of public officers and employees. – Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay selfdefense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.” Section 79, Article X of B.P. Blg. 881 defines the term “partisan political activity” as an act designed to promote the election or defeat of a particular candidate or candidates to a public office.”[29] Malinias asserts that, in setting up a checkpoint at Nacagang, Tambingan, Sabangan, Mountain Province and in closing the canvassing room, Corpuz and Tangilag unduly interfered

with his right to be present and to counsel during the canvassing. This interference allegedly favored the other candidate. While Corpuz and Tangilag admitted ordering the setting up of the checkpoint, they did so to enforce the COMELEC’s firearms ban, pursuant to COMELEC Resolution No. 2968, among others.[30] There was no clear indication that these police officers, in ordering the setting up of checkpoint, intended to favor the other candidates. Neither was there proof to show that Corpuz and Tangilag unreasonably exceeded their authority in implementing the COMELEC rules. Further, there is no basis to rule that private respondents arbitrarily deprived Malinias of his right to be present and to counsel during the canvassing. The act of Corpuz and Tangilag in setting up the checkpoint was plainly in accordance with their avowed duty to maintain effectively peace and order within the vicinity of the canvassing site. Thus, the act is untainted with any color of political activity. There was also no showing that the alleged closure of the provincial capitol grounds favored the election of the other candidates. In summary, we find that there is no proof that the COMELEC issued the assailed resolutions with grave abuse of discretion. We add that this Court has limited power to review findings of fact made by the COMELEC pursuant to its constitutional authority to investigate and prosecute actions for election offenses.[31] Thus, where there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law, this Court may not review the factual findings of the COMELEC, nor substitute its own findings on the sufficiency of evidence.[32] WHEREFORE, the instant Petition is DISMISSED. The assailed Resolutions of public respondent COMELEC are AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo, Acting C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur. Davide, Jr., C.J., Mendoza, and Sandoval-Gutierrez, JJ., on official leave.

[1]

Since the instant petition is grounded on grave abuse of discretion on the part of COMELEC, the same is considered as a Petition for Certiorari under Rule 65 of the Rules of Court pursuant to Section 2 of Rule 64.

[2]

Composed of Harriet O. Demetriou as Chairperson with Manolo B. Gorospe, Luzviminda G. Tancangco, Teresita Dy-Liaco Flores, Japal M. Guiani and Julio F. Desamito as Commissioners.

[3]

Docketed as E.O. 98-262.

[4]

Otherwise known as The Electoral Reforms Law.

[5]

Otherwise known as The Omnibus Election Code.

[6]

Rollo, p. 17.

[7]

Ibid., pp. 61-72.

[8]

Rollo, pp. 17-18.

[9]

Ibid., pp. 19-24.

[10]

Ibid., pp. 25-26.

[11]

Rollo, p. 14.

[12]

Rollo, pp. 14-16.

[13]

Ibid., pp. 12-13.

[14]

People vs. Marave, 11 SCRA 618 (1964).

[15]

Rollo, pp. 15, 32-33.

[16]

Rollo, p. 32.

[17]

Quilala vs. Commission on Elections, 188 SCRA 502 (1990).

[18] [19]

Rollo, pp. 73-79. Section 27 of R.A. No. 6646 provides as follows: “Election Offenses. – In addition to the prohibited acts and election offenses enumerated in Section 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense:

(a) Any person who causes the printing of official ballots and election returns by any printing establishment which is not under contract with the Commission on Election and any printing establishment which undertakes such unauthorized printing. (b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes. (c) Any member of the board of election inspectors who refuses to issue to duly accredited watchers the certificate of voters provided in Section 16 hereof. (d) Any person who violates Section 11 hereof regarding prohibited forms of election propaganda. Any chairman of the board of canvassers who fails to give notice of meetings to other members of the board, candidate or political party as required under Section 23 hereof. (e) Any person declared a nuisance candidate as defined under Section 69 of Batas Pambansa Blg. 881, or is otherwise disqualified, by final and executory judgment, who continues to misrepresent himself out, as a candidate, such as by continuing to campaign thereafter, and/or other public officer or private individual, who knowingly induces or abets such misrepresentation, by commission or omission, shall be guilty of an election offense and subject to the penalty provided in Section 262 of the same code. [20]

See Section 2, Article IX-C of the 1987 Constitution.

[21]

Rollo, p. 23.

[22]

Petition, pp. 7-8.

[23]

Ruben E. Agpalo, Statutory Construction, (1990), pp. 160-161, citing the cases of Canlas vs. Republic, 103 Phil. 712 (1958); Lao Oh Kim vs. Reyes, 103 Phil. 1139 (1958); People vs. Aquino, 83

Phil. 614 (1949); Escribano vs.Avila, 85 SCRA 245 (1978); People vs. Lantin, 30 SCRA 81 (1969); Manila Lodge No. 761 vs. Court of Appeals, 73 SCRA 162 (1976); Santos vs. Court of Appeals, 96 SCRA 448 (1980); Lerum vs. Cruz, 87 Phil. 652 (1950); Velasco vs. Blas, 115 SCRA 540 (1982). [24]

See Section 261 of B.P. Blg. 881.

[25]

Section 262 of B.P. Blg. 881 provides as follows: “Other election offenses. — Violation of the provisions, or pertinent portions, of the following sections of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239 and 240.”

[26]

See People vs. Basilla, 179 SCRA 87 (1989).

[27]

See Section 2 (3), Title I (C), Executive Order No. 292.

[28]

Casimiro vs. Commission on Elections, 171 SCRA 468 (1989) citing Pimentel, Jr. vs. COMELEC, 140 SCRA 126 (1985).

[29]

See Section 79 of B.P. Blg. 881.

[30]

Rollo, pp. 15-16.

[31]

Section 2 (6), Art. IX-C of the 1987 Philippine Constitution.

[32]

Domingo vs. Commission on Elections, 313 SCRA 311 (1999).

Republic SUPREME Manila SECOND DIVISION

of

the

Philippines COURT

G.R. No. 147749

June 22, 2006

SAN PABLO CORPORATION, Petitioner, vs. COMMISSIONER REVENUE,* Respondent.

MANUFACTURING

OF

INTERNAL

DECISION

resolution, the appellate court dismissed the petition on the principal ground5 that the verification attached to it was signed merely by SPMC’s chief financial officer ― without the corporate secretary’s certificate, board resolution or power of attorney authorizing him to sign the verification and certification against forum shopping. SPMC sought a reconsideration of the resolution but the same was denied. Hence, this petition. Did the Court of Appeals err when it dismissed SPMC’s appeal?

CORONA, J.: In this petition for review under Rule 45 of the Rules of Court, San Pablo Manufacturing Corporation (SPMC) assails the July 19, 20001 and April 3, 2001 resolutions of the Court of Appeals in CA-G.R. SP No. 59139. SPMC is a domestic corporation engaged in the business of milling, manufacturing and exporting of coconut oil and other allied products. It was assessed and ordered to pay by the Commissioner of Internal Revenue the total amount of P8,182,182.852 representing deficiency miller’s tax and manufacturer’s sales tax,3 among other deficiency taxes,4 for taxable year 1987. The deficiency miller’s tax was imposed on SPMC’s sales of crude oil to United Coconut Chemicals, Inc. (UNICHEM) while the deficiency sales tax was applied on its sales of corn and edible oil as manufactured products. SPMC opposed the assessments but the Commissioner denied its protest. SPMC appealed the denial of its protest to the Court of Tax Appeals (CTA) by way of a petition for review docketed as CTA Case No. 5423. In its March 10, 2000 decision, the CTA cancelled SPMC’s liability for deficiency manufacturer’s tax on the sales of corn and edible oils but upheld the Commissioner’s assessment for the deficiency miller’s tax. SPMC moved for the partial reconsideration of the CTA affirmation of the miller’s tax assessment but it was denied. SPMC elevated the case to the Court of Appeals via a petition for review of the CTA decision insofar as it upheld the deficiency miller’s tax assessment. In its July 19, 2000

SPMC contends that its appeal should have been given due course since it substantially complied with the requirements on verification and certification against forum shopping. It insists on the liberal application of the rules because, on the merits of the petition, SPMC was not liable for the 3% miller’s tax. It maintains that the crude oil which it sold to UNICHEM was actually exported by UNICHEM as an ingredient of fatty acid and glycerine, hence, not subject to miller’s tax pursuant to Section 168 of the 1987 Tax Code. For SPMC, Section 168 of the 1987 Tax Code contemplates two exemptions from the miller’s tax: (a) the milled products in their original state were actually exported by the miller himself or by another person, and (b) the milled products sold by the miller were actually exported as an ingredient or part of any manufactured article by the buyer or manufacturer of the milled products. The exportation may be effected by the miller himself or by the buyer or manufacturer of the milled products. Since UNICHEM, the buyer of SPMC’s milled products, subsequently exported said products, SPMC should be exempted from the miller’s tax. The petition must fail. Under Rule 43, Section 5 of the Rules of Court, appeals from the CTA and quasi-judicial agencies to the Court of Appeals should be verified. A pleading required to be verified which lacks proper verification shall be treated as an unsigned pleading.6

Moreover, a petition for review under Rule 43 requires a sworn certification against forum shopping.7 Failure of the petitioner to comply with any of the requirements of a petition for review is sufficient ground for the dismissal of the petition.8 A corporation may exercise the powers expressly conferred upon it by the Corporation Code and those that are implied by or are incidental to its existence through its board of directors and/or duly authorized officers and agents.9 Hence, physical acts, like the signing of documents, can be performed only by natural persons duly authorized for the purpose by corporate by-laws or by specific act of the board of directors.10 In the absence of authority from the board of directors, no person, not even the officers of the corporation, can bind the corporation. 11 SPMC’s petition in the Court of Appeals did not indicate that the person who signed the verification/certification on non-forum shopping was authorized to do so. SPMC merely relied on the alleged inherent power of its chief financial officer to represent SPMC in all matters regarding the finances of the corporation including, among others, the filing of suits to defend or protect it from assessments and to recover erroneously paid taxes. SPMC even admitted that no power of attorney, secretary’s certificate or board resolution to prove the affiant’s authority was attached to the petition. Thus, the petition was not properly verified. Since the petition lacked proper verification, it was to be treated as an unsigned pleading subject to dismissal.12 In PET Plans, Inc. v. Court of Appeals,13 the Court upheld the dismissal by the Court of Appeals of the petition on the ground that the verification and certification against forum shopping was signed by PET Plans, Inc.’s first vicepresident for legal affairs/corporate secretary without any certification that he was authorized to sign in behalf of the corporation. In BPI Leasing Corporation v. Court of Appeals,14 the Court ruled that the petition should be dismissed outright on the ground that the verification/certification against forum shopping was signed by BPI Leasing Corporation’s counsel with no specific authority to do so. Since the counsel was purportedly acting for the corporation, he

needed a resolution issued by the board of directors that specifically authorized him to institute the petition and execute the certification. Only then would his actions be legally binding on the corporation.15 In this case, therefore, the appellate court did not commit an error when it dismissed the petition on the ground that it was signed by a person who had not been issued any authority by the board of directors to represent the corporation. Neither can the Court subscribe to SPMC’s claim of substantial compliance or to its plea for a liberal application of the rules. Save for the most persuasive of reasons, strict compliance with procedural rules is enjoined to facilitate the orderly administration of justice.16 Substantial compliance will not suffice in a matter involving strict observance such as the requirement on non-forum shopping,17 as well as verification. Utter disregard of the rules cannot justly be rationalized by harping on the policy of liberal construction.18 But even if the fatal procedural infirmity were to be disregarded, the petition must still fail for lack of merit. As the CTA correctly ruled, SPMC’s sale of crude coconut oil to UNICHEM was subject to the 3% miller’s tax. Section 168 of the 1987 Tax Code provided: Sec. 168. Percentage tax upon proprietors or operators of rope factories, sugar central mills, coconut oil mills, palm oil mills, cassava mills and desiccated coconut factories. Proprietors or operators of rope factories, sugar central and mills, coconut oil mills, palm oil mills, cassava mills and desiccated coconut factories, shall pay a tax equivalent to three percent (3%) of the gross value in money of all the rope, sugar, coconut oil, palm oil, cassava flour or starch, dessicated coconut, manufactured, processed or milled by them, including the by-product of the raw materials from which said articles are produced, processed or manufactured, such tax to be based on the actual selling price or market value of these articles at the time they leave the factory or mill warehouse:Provided, however, That this tax shall not apply to rope, coconut oil, palm oil and the by-product of copra from which it is produced or manufactured and dessicated coconut, if such

rope, coconut oil, palm oil, copra by-products and dessicated coconuts, shall be removed for exportation by the proprietor or operator of the factory or the miller himself, and are actually exported without returning to the Philippines, whether in their original state or as an ingredient or part of any manufactured article or products: Provided further, That where the planter or the owner of the raw materials is the exporter of the aforementioned milled or manufactured products, he shall be entitled to a tax credit of the miller's taxes withheld by the proprietor or operator of the factory or mill, corresponding to the quantity exported, which may be used against any internal revenue tax directly due from him: and Provided, finally, That credit for any sales, miller's or excise taxes paid on raw materials or supplies used in the milling process shall not be allowed against the miller's tax due, except in the case of a proprietor or operator of a refined sugar factory as provided hereunder. (emphasis supplied) The language of the exempting clause of Section 168 of the 1987 Tax Code was clear. The tax exemption applied only to the exportation of rope, coconut oil, palm oil, copra by-products and dessicated coconuts, whether in their original state or as an ingredient or part of any manufactured article or products, by the proprietor or operator of the factory or by the miller himself. The language of the exemption proviso did not warrant the interpretation advanced by SPMC. Nowhere did it provide that the exportation made by the purchaser of the materials enumerated in the exempting clause or the manufacturer of products utilizing the said materials was covered by the exemption. Since SPMC’s situation was not within the ambit of the exemption, it was subject to the 3% miller’s tax imposed under Section 168 of the 1987 Tax Code. SPMC’s proposed interpretation unduly enlarged the scope of the exemption clause. The rule is that the exemption must not be so enlarged by construction since the reasonable presumption is that the State has granted in express terms all it intended to grant and that, unless the privilege is limited to the very terms of the statute, the favor would be intended beyond what was meant.19

Where the law enumerates the subject or condition upon which it applies, it is to be construed as excluding from its effects all those not expressly mentioned. Expressio unius est exclusio alterius. Anything that is not included in the enumeration is excluded therefrom and a meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein.20 The rule proceeds from the premise that the legislature would not have made specific enumerations in a statute if it had the intention not to restrict its meaning and confine its terms to those expressly mentioned.21 The rule of expressio unius est exclusio alterius is a canon of restrictive interpretation.22 Its application in this case is consistent with the construction of tax exemptions in strictissimi juris against the taxpayer. To allow SPMC’s claim for tax exemption will violate these established principles and unduly derogate sovereign authority.

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. PUNO Justice

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. ARTEMIO Chief Justice

V.

PANGANIBAN

Another ground for the dismissal of the petition was SPMC’s failure to attach copies of all pleadings and other material portions of the record as would support the allegations in the petition.

Footnotes CORONA

WE CONCUR: S.

PUNO Justice

ANGELINA SANDOVALADOLFO S. AZCUNA GUTIERREZ Asscociate Justice Associate Justice

ATTESTATION

C.

GARCIA

6

Section 4, Rule 7, Rules of Court.

7

Cf. Section 6, Rule 43, Rules of Court.

8

Cf. Section 7, Rule 43, Rules of Court.

*

The petition names both the Court of Tax Appeals and the Court of Appeals as respondents. However, under Sec. 6, Rule 43 of the Rules of Court, the lower court need not be impleaded as a party in the petition for review filed with the Court of Appeals. Thus, the Court of Tax Appeals should not have been impleaded in the action filed with the Court of Appeals. On the other hand, under Sec. 4, Rule 45, the lower court need not be impleaded in petitions for review filed before this Court. Hence, both the Court of Tax Appeals and the Court of Appeals were excluded from the title. 1

CANCIO Associate Justice

SPMC was also assessed for the following deficiency taxes for taxable year 1987: miller’s tax forP215,476.18 (FAS-4-87-90-000-510), percentage taxes for P42,221.92 (FAS-4-87-90000-513) andP35,300.29 (FAS-4-87-90-000514), increment of P2,298.78 on late payment (FAS-4-87-90-000-515) and fixed taxes for P495.78, P495.00 and P1,090.44 (FAS-4-8790-000-516 to FAS-4-87-90-000-518). These deficiencies were settled through payment. 5

SO ORDERED.

REYNATO Associate Chairperson

Covered by assessment nos. FAS-4-87-90000-511 in the amount of P4,596,093.58 and FAS-4-87-90-000-512 in the amount of P3,586,089.27, respectively. 4

CERTIFICATION

Costs against petitioner.

C.

Inclusive of interest, surcharge and other penalties. 3

REYNATO S. Associate Chairperson, Second Division

WHEREFORE, the petition is hereby DENIED.

RENATO Associate Justice

2

Penned by Associate Justice Ramon Mabutas, Jr. and concurred in by Associate Justices Demetrio G. Demetria and Jose L. Sabio, Jr. of the Eighth Division of the Court of Appeals; rollo, p. 31.

9

BPI Leasing Corporation v. Court of Appeals, G.R. No. 127624, 18 November 2003, 416 SCRA 4. 10

Id.

11

Public Estates Authority v. Uy, 423 Phil. 407 (2001). 12

Soller v. Commission on Elections, G.R. No. 139853, 5 September 2000, 339 SCRA 685.

13

G.R. No. 148287, 23 November 2004, 443 SCRA 510. 14

PUNO, J.:

Supra at note 9.

15

Id.

16

PET Plans, Inc. v. Court of Appeals, supra.

17

Spouses Ortiz v. Court of Appeals, 360 Phil. 95 (1998). 18

Chua v. Santos, G.R. No. 132467, 18 October 2004, 440 SCRA 365. 19

Lung Center of the Philippines v. Quezon City, G.R. No. 144104, 29 June 2004, 433 SCRA 119. 20

Singapore Airlines Local Employees v. National Labor Relations Commission, 215 Phil. 420 (1984). 21

Canet v. Decena, G.R. No. 155344, 20 January 2004, 420 SCRA 388. 22

DECISION

Malinias v. COMELEC, 439 Phil. 319 (2002).

EN BANC

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte. The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty-one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824. On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Circuit Trial Court, Bangui-PagudpudAdams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan.[1] The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte.[2] The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner.[3] On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo,[4] disapproved petitioner's certificate of candidacy again due to her age.[5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run.[6] On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of

candidacy should not be disapproved.[7] Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of candidacy. The petition was sent by facsimile[8] and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila. On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads as follows: "Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads: xxx 5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more than twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a copy of which is hereto attached and marked as Annex "A"; 6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled; x x x." the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highest

number of votes for the Sangguniang Kabataan [sic].

position

of

any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election."

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00. SO ORDERED."[9] On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. [10] In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996. On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte.[11] The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party."[12] On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon.[13] Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective official of the SK.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false material representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decided by the COMELEC itself.[15] Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by the COMELEC en banc when the required number of votes to reach a decision, resolution, order or ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc.[16] It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus: "Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission."[17]

I Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision of the COMELEC and shall be governed by the Omnibus Election Code.[14] The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz: "Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996.[18] II The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal

requirements of pleadings under the COMELEC Rules of Procedure. These requirements are: "Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or protest as there are additional respondents or protestees. Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with. Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino. x x x." Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail. In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC.[19] Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail. A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current.[20] The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade.[21] The receiver is equipped with a stylus

or other device that produces a printed record on paper referred to as a facsimile.[22] Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original.[23] Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail. III To write finis to the case at bar, we shall now resolve the issue of petitioner's age. The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age.[24] The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance.[25] Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age.[26] In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age." The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old.[27] The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan.[28]

The chairman automatically becomes ex-officio member of the Sangguniang Barangay.[29] A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office.[30]

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus:

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz:

"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections, a person must be:

"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twentyone (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary." A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications: "Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen (15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude." Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude.

a) a citizen of the Philippines; b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections." xxx "Sec. 6. Qualifications of elective members. -An elective official of the SK must be: a) a qualified voter; b) a resident in the barangay for at least one (1) year immediately prior to the elections; and c) able to read and write Filipino or any Philippine language or dialect or English. Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final." A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year

and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write. Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections. A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "on the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio.[31] The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification.[32] The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term "qualified

voter" appears only in COMELEC Resolution No. 2824.[33] Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election. The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each.[34] One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the year.[35] In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day. The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day. In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly stated as "x x x at least fifteen years of age or over but less than eighteen x x x."[36] This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of

members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matter open to confusion and doubt.[37] Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power.[38] They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years[39] and the only exception is in the second paragraph of Section 423 which reads: "Sec. 423. Creation and Election. -- a)

x x x;

b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected." The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday."[40] Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election. In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter

for the May 6, 1996 SK elections, petitioner was twentyone (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible.[41] In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election.[42] The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[43] The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected.[44] A defeated candidate cannot be deemed elected to the office.[45] Moreover, despite his claims,[46] private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously voted for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate.[47] Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections.[48] Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify,[49] is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months."

"legally

[3]

Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office.[52] Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman.

[4]

Being "eligible" means being qualified; capable of being legally chosen."[51]

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to said office. IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur. Hermosisima, J., on leave.

Annex "F" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 61-62. [5]

Annex "C" to the Petition, Rollo p. 18; Annex "G" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 63.5 [6]

Annex "D" to the Petition, Rollo, p. 19; Annex "H" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 64. [7]

Annex "I" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 66. [8]

Through the PT & T.

[9]

Annex "L" to the Petition, Rollo, pp. 71-73

[10]

Comment of Private Respondent Florencio Sales, Jr., p. 14, Rollo, p. 101. [11]

Comment of Provincial Election Supervisor Noli Pipo, par. 18, Rollo, p. 41. [12]

Annex "R" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 82. [13]

Annex "S" to the Comment of Provincial Election Supervisor Noli Pipo, Rollo, p. 83. [14]

Section 532 (a) of the Code (B.P. 881) was amended by R.A. 7808 which in pertinent part reads: "Sec. 1. x x x The conduct of the sangguniang kabataan elections shall be under the supervision of the Commission on Elections. The Omnibus Election Code shall govern the elections of the sangguniang kabataan." [15]

Rule 23 provides:

[1]

Annex "D" to Comment of Provincial Election Supervisor Noli Pipo, Rollo, pp. 57-58; Annex "A" to Petition, Rollo, pp. 15-16 [2]

The question of the age qualification is a question of eligibility.[50]

The judge was then boarding in the house of petitioner (Comment for the Private Respondent, p. 2, Rollo, p. 89).

Annex "3" to the Comment Respondent, Rollo, pp. 109-112.2

for

the

Private

"Section 1. Ground for Denial of Certificate of Candidacy. -- A petition to deny due course to or cancel a certificate of candidacy for any elective office may be filed with the Law Department of the Commission by any citizen of voting age or a duly registered political party, organization, or coalition of political parties on the

exclusive ground that any material representation contained therein as required by law is false. Section 2. Period to File Petition. -- The petition must be filed within five (5) days following the last day for the filing of certificates of candidacy.

[22]

Facsimile," The New Webster's International Encyclopedia, p. 375 [1996]; "Facsimile," Webster's Third New International Dictionary, p. 813 [1971]. [23]

Black's Law Dictionary, p. 531, 5th ed. [1979].

[24]

Sections 1 and 4, P.D. 684.

Section 3. Summary Procedure. -- The petition shall be heard summarily after due notice.

[25]

Section 4. Delegation of Reception of Evidence. -The Commission may designate any of its officials who are members of the Philippine Bar to hear the case and to receive evidence."

[26]

Whereas clauses, Sec. 1, P.D. 684; Mercado v. Board of Elections Supervisors of Ibaan, Batangas, 243 SCRA 422, 426 [1995].

[42]

Sanchez v. del Rosario, 1 SCRA 1102, 1106 [1961]; Feliciano v. Aquino, Jr., 102 Phil. 1159, 1160 [1957]. [43]

Frivaldo v. Commission on Elections, 174 SCRA 245, 255 [1989]. [44]

Aquino v. Commission on Elections, 248 SCRA 400, 423, 429 [1995]; Labo, Jr. v. Commission on elections, 211 SCRA 297, 311 [1992]; Sanchez v. del Rosario, supra, at 1105. [45]

Section 2, P.D. 684.

Id.

[46] [27]

Section 423, Chapter 8, Title I, Bk. III, R.A. 7160.

Comment of Private Respondent Florencio Sales, Jr., pp. 14-15, Rollo, 101-102.

[28]

Sections 423, 428, Chapter 8, Title I, Bk. III, R.A. 7160.

[47]

cf. Labo, Jr. v. Commission on Elections, supra, at 311.

[29]

Section 430, Id.

[48]

Section 435 of the Local Government Code provides:

[30]

Section 429, Id.

[31]

Of things dissimilar, the rule is dissimilar.

[32]

Agpalo, Statutory Construction, pp. 142-143 [1990].

"Sec. 435. Succession and Filling of Vacancies. -- (a) In case a sangguniang kabataan chairman refuses to assume office, fails to qualify, is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months, the sangguniang kabataan member who obtained the next highest number of votes in the election immediately preceding shall assume the office of the chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rights and privileges appurtenant to the office. In case the said member refuses to assume the position or fails to qualify, the sangguniang kabataan member obtaining the next highest number of votes shall assume the position of the chairman for the unexpired portion of the term.

[16]

Section 5 [b] and [c], Rule 3, COMELEC Rules of Procedure provides: "Sec. 5. x x x (b)When sitting in Divisions, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required number is not obtained, the case shall be automatically elevated to the Commission en banc for decision or resolution. (c)Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the Division which shall be resolved by the Division which issued the order." [17]

See also Section 3, Article IX [C] of the Constitution.

[18]

Sarmiento v. Commission On Elections, 212 SCRA 307, 131-134 [1992]. [19]

One copy was filed by registered mail and the other by facsimile. Third and fourth copies were sent by registered mail to petitioner Garvida and the COMELEC officer (Annex 5-B to the Comment of Private Respondent, Rollo, p. 116). [20]

Facsimile Transmission," The New Encyclopaedia Britannica, p. 651, vol. 4, 15th ed. [1992]. [21]

Id.

[33]

The Local Government Code speaks of the requirements for membership in the Katipunan ng Kabataan, not the qualifications of a voter. [34]

Civil Code, Article 13; National Marketing Corporation v. Tecson, 29 SCRA 70, 74 [1969]. [35]

Erwin v. Benton, 87 S.W. 291, 294; 120 Ky. 536 [1905].

[36]

Section 2, P.D. 684.

[37]

Feliciano v. Aquino, 102 Phil. 1159-1160 [1957].

[38]

Pimentel, A.Q., The Local Government Code of 1991, The Key to National Development, p. 440 [1993]. [39]

It is worth noting that it is only in the case of SK candidates that the Local Government Code sets a maximum age limit. It sets a minimum age for the rest of the elective officials, e.g., members of the sangguniang barangay, sangguniang panglungsod or bayan, sangguniang panlalawigan, mayor and governor (Sec. 39, Chapter I, Title II, Bk. I, Local Government Code of 1991). [40]

Pimentel, supra, at 440.

[41]

Castaneda v. Yap, 48 O.G. 3364, 3366 [1952].

x x x." [49]

"Failure to qualify" means a public officer's or employee's failure to take the oath and/or give the bond required by law to signify his acceptance of the office and the undertaking to execute the trust confided in him (Martin and Martin, Administrative Law, Law of Public Officers and Election Law, p. 140 [1983]; Mechem, A Treatise on the Law of Public Offices and Officers, Sec. 253, p. 162; Words and Phrases, "Failure to Qualify," citing State v. Boyd, 48 N.W. 739, 751, 31 Neb. 682). [50]

Gaerlan v. Catubig, 17 SCRA [1966]; Feliciano v. Aquino, Jr., supra.

376,

378

[51]

People v. Yanza, 107 Phil. 888, 890 [1960].

[52]

Separate Opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, 248 SCRA 300, 398 [1995]. EN BANC

[G.R. No. 141386. November 29, 2001]

THE COMMISSION ON AUDIT OF THE PROVINCE OF CEBU, Represented by Provincial Auditor ROY L. URSAL, petitioner, vs. PROVINCE OF CEBU, Represented by Governor PABLO P. GARCIA, respondent. DECISION YNARES-SANTIAGO, J.: May the salaries and personnel-related benefits of public school teachers appointed by local chief executives in connection with the establishment and maintenance of extension classes; as well as the expenses for college scholarship grants, be charged to the Special Education Fund (SEF) of the local government unit concerned? The instant petition for review, which raises a pure question of law, seeks to annul and set aside the decision[1] of the Regional Trial Court of Cebu, Branch 20, in a petition for declaratory relief, docketed as Civil Case No. CEB-24422. The provincial governor of the province of Cebu, as chairman of the local school board, under Section 98 of the Local Government Code, appointed classroom teachers who have no items in the DECS plantilla to handle extension classes that would accommodate students in the public schools. In the audit of accounts conducted by the Commission on Audit (COA) of the Province of Cebu, for the period January to June 1998, it appeared that the

salaries and personnel-related benefits of the teachers appointed by the province for the extension classes were charged against the provincial SEF. Likewise charged to the SEF were the college scholarship grants of the province. Consequently, the COA issued Notices of Suspension to the province of Cebu,[2] saying that disbursements for the salaries of teachers and scholarship grants are not chargeable to the provincial SEF. Faced with the Notices of Suspension issued by the COA, the province of Cebu, represented by its governor, filed a petition for declaratory relief with the trial court. On December 13, 1999, the court a quo rendered a decision declaring the questioned expenses as authorized expenditures of the SEF. The dispositive portion thereof reads: WHEREFORE, in view of all the foregoing premises considered, judgment is hereby rendered giving due course to this instant petition for declaratory relief declaring and confirming that petitioner is vested with the authority to disburse the proceeds from the Special Educational Fund [SEF] for the payment of salaries, allowances or honoraria for teachers and non-teaching personnel in the public schools in the Province of Cebu and its component cities, and, municipalities, as well as the expenses for scholarship grants of petitioners specially to poor but deserving students therein. Declaring, further, respondent's audit findings on pages 36 and 37 in the Annual Audit Report on the Province of Cebu for the year ending December 31, 1999 as null and void.[3] Hence, the instant petition by the Commission on Audit. The Special Education Fund was created by virtue of R. A. No. 5447, which is An act creating a special education fund to be constituted from the proceeds of an additional real property tax and a certain portion of the taxes on Virginia-type cigarettes and duties on imported leaf tobacco, defining the activities to be financed, creating school boards for the purpose, and appropriating funds therefrom, which took effect on January 1, 1969. Pursuant thereto, P.D. No. 464, also known as the Real Property Tax Code of the Philippines, imposed an annual tax of 1% on real property which shall accrue to the SEF.[4]

Under R. A. No. 5447, the SEF may be expended exclusively for the following activities of the DECS (a) the organization and operation of such number of extension classes as may be needed to accommodate all children of school age desiring to enter Grade I, including the creation of positions of classroom teachers, head teachers and principals for such extension classes x x x; (b) the programming of the construction and repair of elementary school buildings, acquisition of sites, and the construction and repair of workshops and similar buildings and accessories thereof to house laboratory, technical and similar equipment and apparatus needed by public schools offering practical arts, home economics and vocational courses, giving priority to elementary schools on the basis of the actual needs and total requirements of the country x x x; (c) the payment and adjustment of salaries of public school teachers under and by virtue of Republic Act Numbered Five Thousand One Hundred Sixty-Eight and all the benefits in favor of public school teachers provided under Republic Act Numbered Four Thousand Six Hundred Seventy; (d) preparation, printing and/or purchase of textbooks, teacher's guides, forms and pamphlets x x x; (e) the purchase and/or improvement, repair and refurbishing of machinery, laboratory, technical and similar equipment and apparatus, including spare parts needed by the Bureau of Vocational Education and secondary schools offering vocational courses; (f) the establishment of printing plant to be used exclusively for the printing needs of the Department of Education and the improvement of regional printing plants in the vocational schools;

(g) the purchase of teaching materials such as work books, atlases, flip charts, science and mathematics teaching aids, and simple laboratory devices for elementary and secondary classes; (h) the implementation of the existing program for citizenship development in barrio high schools, folk schools and adult education classes; (i) the undertaking of education research, including that of the Board of National Education; (j) the granting of government scholarships to poor but deserving students under Republic Act Numbered Four Thousand Ninety; and (k) the promotion of physical education, such as athletic meets. (Emphasis supplied) With the effectivity of the Local Government Code of 1991, petitioner contends that R.A. No. 5447 was repealed, leaving Sections 235, 272 and 100 (c) of the Code to govern the disposition of the SEF, to wit: SEC. 235. Additional Levy on Real Property for the Special Education Fund (SEF). – A province or city or a municipality within the Metropolitan Manila Area, may levy and collect an annual tax of one percent (1%) on the assessed value of real property which shall be in addition to the basic real property tax. The proceeds thereof shall exclusively accrue to the Special Education Fund (SEF). SEC. 272. Application of Proceeds of the Additional One Percent SEF Tax. – The proceeds from the additional one percent (1%) tax on real property accruing to the SEF shall be automatically released to the local school boards: Provided, That, in case of provinces, the proceeds shall be divided equally between the provincial and municipal school boards: Provided, however, That the proceeds shall be allocated for the operation and maintenance of public schools, construction and repair of school buildings, facilities and equipment, educational research, purchase of books and periodicals, and sports development as determined and approved by the local school board. (Emphasis supplied)

SEC. 100. Meeting and Quorum; Budget

Senator Guingona. Mr. President.

xxx

The President. Senator Guingona is recognized.

xxx

xxx

(c) The annual school board budget shall give priority to the following: (1) Construction, repair, and maintenance of school buildings and other facilities of public elementary and secondary schools; (2) Establishment and maintenance of extension classes where necessary; and (3) Sports activities at the division, district, municipal, and barangay levels. (Emphasis supplied) Invoking the legal maxim “expressio unius es exclusio alterius,” petitioner alleges that since salaries, personnel-related benefits and scholarship grants are not among those authorized as lawful expenditures of the SEF under the Local Government Code, they should be deemed excluded therefrom. Moreover, petitioner claims that since what is allowed for local school boards to determine under Section 99[5] of the Local Government Code is only the “annual supplementary budgetary needs for the operation and maintenance of public schools,” as well as the “supplementary local cost to meet such needs,” the budget of the local school boards for the establishment and maintenance of extension classes should be construed to refer only to the upkeep and maintenance of public school buildings, facilities and similar expenses other than personnel-related benefits. This is because, petitioner argued, the maintenance and operation of public schools pertain principally to the DECS. The contentions are without merit. It is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute.[6] In this connection, the following portions of the deliberations of the Senate on the second reading of the Local Government Code on July 30, 1990 are significant:

Senator Guingona. Just for clarification, Mr. President. In this transfer, will it include everything eventually -- lock, stock and barrel, including curriculum? Senator Pimentel. Mr. President, our stand in the Committee is to respect the decision of the National Government in terms of curriculum. Senator Guingona. But, supposing the Local Education Board wishes to adopt a certain curriculum for that particular region? Senator Pimentel. Mr. President, pursuant to the wording of the proposed transfer of this elementary school system to local government units, what are specifically covered here are merely the construction, repair, and maintenance of elementary school buildings and other structures connected with public elementary school education, payment of salaries, emoluments, allowances et cetera, procurement of books, other teaching materials and equipment needed for the proper implementation of the program. There is nothing here that will indicate that the local government will have any right to alter the curriculum. (Emphasis supplied) Senator Guingona. Thank you, Mr. President. Similarly instructive are the foregoing deliberations in the House of Representatives on August 16, 1990: INTERPELLATION OF MS. RAYMUNDO (Continuation) Continuing her interpellation, Ms. Raymundo then adverted to subsection 4 of Section 101 [now Section 100, paragraph (c)] and asked if the budget is limited only to the three priority areas mentioned. She also asked what is meant by the phrase “maintenance of extension classes.”

In response, Mr. De Pedro clarified that the provision is not limited to the three activities, to which may be added other sets of priorities at the proper time. As to extension classes, he pointed out that the school boards may provide out of its own funds, for additional teachers or other requirements if the national government cannot provide funding therefor. Upon Ms. Raymundo’s query, Mr. de Pedro further explained that support for teacher tools could fall under the priorities cited and is covered by certain circulars. Undoubtedly, the aforecited exchange of views clearly demonstrates that the legislature intended the SEF to answer for the compensation of teachers handling extension classes. Furthermore, the pertinent portion of the repealing clause of the Local Government Code, provides: SEC. 534. Repealing Clause. - x x x (c) The provisions of . . . Sections 3, a (3) and b (2) of Republic Act No. 5447, regarding the Special Education Fund … are hereby repealed and rendered of no force and effect.

compensated for their services. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis.[8] Verily, the services and the corresponding compensation of these teachers are necessary and indispensable to the establishment and maintenance of extension classes. Indeed, the operation and maintenance of public schools is lodged principally with the DECS. This is the reason why only salaries of public school teachers appointed in connection with the establishment and maintenance of extension classes, inter alia, pertain to the supplementary budget of the local school boards. Thus, it should be made clear that not every kind of personnelrelated benefits of public school teachers may be charged to the SEF. The SEF may be expended only for the salaries and personnel-related benefits of teachers appointed by the local school boards in connection with the establishment and maintenance of extension classes. Extension classes as referred to mean additional classes needed to accommodate all children of school age desiring to enter in public schools to acquire basic education.[9]

Evidently, what was expressly repealed by the Local Government Code was only Section 3, of R.A. No. 5447, which deals with the “Allocation of taxes on Virginia type cigarettes and duties on imported leaf tobacco.” The legislature is presumed to know the existing laws, such that whenever it intends to repeal a particular or specific provision of law, it does so expressly. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exists in the terms of the new and the old laws.[7] Hence, the provisions allocating funds for the salaries of teachers under Section 1, of R.A. No. 5447, which are not inconsistent with Sections 272 and 100 (c) of the Local Government Code, remain in force and effect.

With respect, however, to college scholarship grants, a reading of the pertinent laws of the Local Government Code reveals that said grants are not among the projects for which the proceeds of the SEF may be appropriated. It should be noted that Sections 100 (c) and 272 of the Local Government Code substantially reproduced Section 1, of R.A. No. 5447. But, unlike payment of salaries of teachers which falls within the ambit of “establishment and maintenance of extension classes” and “operation and maintenance of public schools,” the “granting of government scholarship to poor but deserving students” was omitted in Sections 100 (c) and 272 of the Local Government Code. Casus omissus pro omisso habendus est. A person, object, or thing omitted from an enumeration in a statute must be held to have been omitted intentionally. It is not for this Court to supply such grant of scholarship where the legislature has omitted it.[10]

Even under the doctrine of necessary implication, the allocation of the SEF for the establishment and maintenance of extension classes logically implies the hiring of teachers who should, as a matter of course be

In the same vein, however noble the intention of the province in extending said scholarship to deserving students, we cannot apply the doctrine of necessary

implication inasmuch as the grant of scholarship is neither necessary nor indispensable to the operation and maintenance of public schools. Instead, such scholarship grants may be charged to the General Funds of the province. Pursuant to Section 1, Rule 63[11] of the 1997 Rules of Civil Procedure, a petition for declaratory relief may be filed before there is a breach or violation. The Solicitor General claims that the Notices of Suspension issued by the COA to the respondent province amounted to a breach or violation, and therefore, the petition for declaratory relief should have been denied by the trial court. We are not convinced. As held in Shell Company of the Philippines, Ltd. v. Municipality of Sipocot,[12] any breach of the statute subject of the controversy will not affect the case; the action for declaratory relief will prosper because the applicability of the statute in question to future transactions still remains to be resolved. Absent a definite ruling in the instant case for declaratory relief, doubts as to the disposition of the SEF will persist. Hence, the trial court did not err in giving due course to the petition for declaratory relief filed by the province of Cebu. WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Cebu City, Branch 20, in Civil Case No. CEB-24422, is AFFIRMED with MODIFICATION. The salaries and personnel-related benefits of the teachers appointed by the provincial school board of Cebu in connection with the establishment and maintenance of extension classes, are declared chargeable against the Special Education Fund of the province. However, the expenses incurred by the provincial government for the college scholarship grants should not be charged against the Special Education Fund, but against the General Funds of the province of Cebu. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. Buena, J., on official leave.

[1]

Penned by Judge Ferdinand J. Marcos.

[2]

Annex "1" - "1-h", Records, pp. 31-39 and Annex "8", Records, p. 64. [3]

Rollo, p. 38.

[4]

Sec. 41. An additional one percent tax on real property for the Special Education Fund. -- There is hereby imposed an annual tax of one percent of real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the real property tax which local governments are authorized to levy, assess and collect under this Code; x x x. [5]

SEC. 99. Function of Local School Boards. - The provincial city or municipal school board shall: (a) Determine, in accordance with the criteria set by the Department of Education, Culture and Sports, the annual supplementary budgetary needs for the operation and maintenance of public schools within the province, city, or municipality, as the case may be, and the supplementary local costs of meeting such needs x x x. [6]

National Tobacco Administration v. Commission on Audit, 311 SCRA 755, 769 [1999]. [7]

R. Agpalo, Statutory Construction, 314-315 [1995]; citing Mecano v. Commission on Audit, 216 SCRA 500 [1992]. [8]

Pepsi-Cola Products Philippines, Inc. v. Secretary of Labor, 312 SCRA 104, 117 [1999]. [9]

Joint Circular No. 01 s. 1998 of the Department of Education Culture and Sports, the Department of Budget and Management, and the Department of Interior and Local Government. [10]

S. Alcantara, Statutes, 67 [1993].

Section 1. Who may file petition. — Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder x x x. [11]

[12]

Vol. III, O. Herrera, Remedial Law, 109 [1991]; citing 105 Phil. 1263 [1959].

Republic SUPREME Manila

of

the

Philippines COURT

FIRST DIVISION G.R. No. 166735

September 5, 2006

SPOUSES NEREO and NIEVA DELFINO, petitioners, vs. ST. JAMES HOSPITAL, INC. and HON. RONALDO B. ZAMORA, EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the Decision1 of the Court of Appeals in CA-G.R. SP No. 60495, dated 20 January 2003, which affirmed the Decision2of the Office of the President, dated 26 March 1999, and the Resolution3 dated 11 August 2000, reinstating the grant to respondent St. James Hospital, Inc. of a Locational Clearance and a Certificate of Locational Viability (CLV) for its expansion as a four-storey, forty-bed capacity hospital. St. James Hospital was established in 1990 as a twostorey, ten-bed capacity hospital in Mariquita Pueblo Subdivision in Santa Rosa, Laguna. In 1994, it applied for a permit with the Housing and Land Use Regulatory Board (HLURB) to expand its hospital into a four-storey, forty-bed capacity medical institution. Thus, on 23 November 1994, Reynaldo Pambid, HLURB Deputized Zoning Administrator for Santa Rosa, Laguna, issued a "temporary" clearance for the expansion of said hospital. Said issuance was challenged by herein petitioners spouses Nereo and Nieva Delfino, residents of Mariquita Pueblo Subdivision, on the ground that the proposed expansion is in violation of the provisions of the 1981 Santa Rosa Municipal Zoning Ordinance. Thereafter, Mr. Pambid referred the matter for evaluation by his superiors.

On 19 April 1995, HLURB Regional Office No. IV Director Alfredo M. Tan II issued a letter explaining that the issuance of a "temporary" clearance is not allowed under existing laws for it may be erroneously construed as a permit to start construction. Director Tan, however, opined that under existing HLURB guidelines, CLVs may be issued to certain projects for purposes of securing an Environment Compliance Certification (ECC) from the Department of Environment and Natural Resources (DENR). On the strength of said opinion, Mr. Pambid revoked the temporary clearance issued to St. James Hospital and declared the expansion as not viable. The municipal engineer of Santa Rosa, Laguna, also suspended the hospital's building permit, while DENR Regional Executive Director Antonio Principe issued a cease and desist order on 16 August 1995. Nevertheless, upon written representation of the hospital's operator, Dr. Jose P. Santiago, that the St. James Hospital will retain the same number of beds maintained in the hospital, Mr. Pambid issued a CLV dated 29 October 1995 for the hospital's expansion project. Upon protest from the petitioners, Mr. Pambid thereafter suspended the issued CLV. In the interim, the Sangguniang Panlalawigan of Laguna passed on 11 December 1995 Resolution No. 811, approving the 1991 Comprehensive Land Use Plan (CLUP) or the Comprehensive Zoning new Zoning Ordinance, hospitals are now excluded from the list of viable institutions within the residential zone of Santa Rosa, Laguna. Oblivious of the approval of the 1991 Zoning Ordinance, Mr. Pambid issued on 1 February 1996 a Certificate of Zoning Compliance or Locational Clearance for the twostorey, ten-bed St. James Hospital citing as basis the provisions of the 1981 Santa Rosa Municipal Zoning Ordinance. On 14 March 1996, Mr. Pambid likewise issued a CLV for a four-storey, forty-bed hospital expansion project in favor of St. James Hospital. These issuances of Mr. Pambid were, however, invalidated by HLURB Director Ordinance of the Municipality of Santa Rosa, Laguna. Under the Tan on 25 April 1996, as it violated, according to Director Tan, the provisions of the

1991 Zoning Ordinance. As a result thereof, Mr. Pambid suspended the locational clearance issued to St. James Hospital and elevated the matter to the HLURB for disposition. According to Mr. Pambid, he received a copy of the new Zoning Ordinance only on 14 February 1996, two weeks after issuing the locational clearance. On 16 May 1996, petitioners filed before the HLURB Regional Office No. IV a letter-complaint against Mr. Pambid for issuing the CLV in violation of both the 1981 and 1991 Zoning Ordinances, and against Dr. Santiago for continuing with the expansion project despite the invalidation of the CLV issued by Mr. Pambid. In reply to petitioners' complaint, St. James Hospital maintained that there is a need to expand the existing hospital to address the acute deficiency of medical facilities in the municipality, and that the project is permissible under the new Zoning Ordinance. Furthermore, it pointed out that the project has been favorably endorsed not only by the residents of Mariquita Pueblo Subdivision, but also by the residents of other neighboring communities. St. James Hospital also argued that it has already incurred millions of pesos in losses for every day of delay in the construction. Pursuant to HLURB Rules, the case was elevated to the HLURB Legal Services Group (LSG), and was assigned to Arbiter Erwin T. Daga. During the course of the proceedings, Arbiter Daga issued the following Orders: 1. Order dated December 6, 1996 (temporary restraining order) enjoining St. James [Hospital] from continuing with its expansion project;

further work and construction of the hospital's expansion building pending the resolution of the case.4 On 4 March 1997, Dr. Santiago filed before the HLURB Board of Commissioners a Motion seeking the inhibition of Arbiter Daga for partiality, which was subsequently denied. On 16 July 1997, after the parties have submitted their respective position papers and draft decisions, Arbiter Daga rendered a Decision in favor of petitioners, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered, to wit: 1. The Locational Clearance dated February 1, 1996 issued by public respondent Reynaldo Pambid to the expansion hospital building of private respondent St. James Hospital, Inc. is hereby revoked and set aside; 2. Ordering private respondent to demolish its two-storey hospital expansion building within ONE MONTH at its cost and upon failure to comply within the period given, pay complainants P10,000.00 per day of delay;

3. Order dated December 12, 1996 denying St. James [Hospital's] motion to lift the temporary restraining order; and

3. Ordering private respondent to relocate its existing ten-bed capacity hospital within ONE YEAR and thereafter to permanently cease and desist from operating a hospital/clinic within a residential zone, particularly in Mariquita Pueblo Subdivision, Dita, Sta. Rosa, Laguna and failure to comply within the reglementary period given, pay complainants the amount of P10,000.00 per day of delay;

4. Order dated December 14, 1996 ordering St. James [Hospital] to again cease and desist from

4. Ordering private respondent to pay this Board administrative fine

2. Order dated December 11, 1996 ordering St. James [Hospital] to cease and desist from proceeding with its expansion project;

of P20,000.00, aside from the other fines previously imposed; 5. Ordering private respondent to pay this Board P5,000.00 per day beginning February 4, 1997 until the day that it ceased or finished the construction of its expansion building as determined by the Board's Regional Office No. IV; 6. Ordering private respondent to pay complainants FIVE HUNDRED THOUSAND PESOS as moral damages, TWO MILLION PESOS exemplary damages, TWO HUNDRED THOUSAND PESOS as attorney's fees, and FIFTY THOUSAND PESOS cost of litigation; The motion of private respondent dated 24 June 1997 is hereby DENIED and its Counterclaim is hereby dismissed for lack of merit. Without prejudice to the filing of criminal action that may be filed with the proper court.5 Aggrieved by the aforecited Decision, St. James Hospital appealed to the HLURB Board of Commissioners asserting that the proposed expansion of the hospital conforms to the 1991 Zoning Ordinance. Resolving said appeal, the HLURB effectively modified Arbiter Daga's Decision, ruling that the existing hospital, with its original two-storey, tenbed capacity, is allowable under the old 1981 Zoning Ordinance and may be allowed to continue as a medical institution within the Mariquita Pueblo Subdivision even after the effectivity of the 1991 Zoning Ordinance. However, the HLURB opined that the new construction of commercial buildings within the said residential zone, such as the forty-bed capacity expansion building of St. James Hospital, is repugnant to Section 2, Article VI of the 1991 Santa Rosa Municipal Zoning Ordinance and, hence, should be disallowed. Thus, on 13 January 1998, the HLURB Special Division rendered a Decision, to wit:

WHEREFORE, the decision of the LSG dated July 16, 1997, is hereby SET ASIDE and a new decision entered: 1. Declaring the original two-storey, ten-bed capacity St. James Hospital, as allowable in the Mariquita Pueblo Subdivision, Sta. Rosa, Laguna; 2. Ordering respondent St. James to set-up an efficient hospital waste disposal system in conformity with the rules and regulations and standards of the Department of Health, the Department of Environment and Natural Resources and all other concerned government agencies; and present a certification of compliance to the Board from said agencies within ninety (90) days from finality hereof; and 3. Revoking the Locational Clerance dated February 01, 1996 issued by respondent Pambid for the expansion Hospital building of respondent St. James.6 The separate Motions for Reconsideration of both parties having been denied by the HLURB, the parties elevated the case to the Office of the President, which rendered a decision on 26 March 1999 in favor of St. James Hospital. According to the Office of the President: Without doubt, the establishment of a ten-bed capacity hospital, like the existing St. James Hospital, is allowed within a residential zone. This is expressly provided under Section 2, paragraph 1(d), Article VI of the 1981 Sta. Rosa Municipal Zoning Ordinance, the law existing at the time of the founding of the said hospital. The term "hospital" was, however, deleted from the list of conforming establishments within a residential zone in the recently approved 1991 CLUP or the Comprehensive Zoning Ordinance of the Municipality of Sta. Rosa, Laguna. The

question now is whether or not the proposed expansion of St. James Hospital, which will transform it into a four-storey, 40-bed capacity hospital, is allowable under the 1991 zoning ordinance. Stated differently, does the term "institutional", as used in the said ordinance, include hospitals and other medical establishments. In construing words or phrases used in a law, the general rule is that, in the absence of legislative intent to the contrary, they should be given their plain, ordinary, and common usage meaning (Amadora vs. Court of Appeals, 160 SCRA 315). For, words are presumed to have been employed by the lawmaker in their ordinary and common use and acceptation (People vs. Kottinger, 45 Phil. 352). Under Section 2, Article VI of the 1991 Zoning Ordinance, certain activities that are commercial andinstitutional in character are allowed within the residential zone. St. James maintained the term "institutional" includes hospitals and other medical establishments. We agree. The word "institutional" used as it is in said ordinance without qualification should be understood in its plain and ordinary meaning. In law, the word "institution" is understood to mean an establishment or place, especially one of public character or one affecting a community (Black's Law Dictionary, Revised 4th edition, 1968, p. 940). It may be private in character, designed for profit to those composing the organization, or public and charitable in its purposes. From the above definition, it is clear that hospitals fall within the pale of the term "institution", a hospital being a public establishment and that the nature of its business is for profit. The fact that hospitals are not categorized as dwelling unit does not inevitably mean that it is already a non-conforming establishment within a residential zone. As

provided under aforecited provision of the 1991 Zoning Ordinance, settlement activities that are "institutional in character" are allowed within the residential zone. Even the HLURB recognized St. James as a medical institution within the residential zone of the Municipality of Sta. Rosa, Laguna. Be that as it may, St. James Hospital may be allowed to continue its business within the Mariquita Pueblo Subdivision. To limit the term "institutional" to activities conducted within the dwelling units of the residents would be unrealistic and would contemplate undue restrictions to existing and lawful establishments, like the St. James Hospital. As a conforming establishment within the residential zone, St. James Hospital may also be allowed to expand its present structure. It is not disputed that the new zoning ordinance does not expressly prohibit expansion of existing buildings within the residential zone. As correctly observed by St. James, it would be an absurd requirement if such establishment, like hospitals, would have the appearance of residential units or that its use be incidental and subordinate to its residential purposes. The parameters mentioned in the said ordinance should only be applied to residential units. Foregoing considered, the locational clearance and the complementary certificate of locational viability may now be issued in favor of St. James Hospital. WHEREFORE, the grant to St. James Hospital, Inc., of a Locational Clearance and a Certificate of Locational Viability (CLV) relative to its expansion as a 4-storey, 40-bed capacity hospital dated February 1, 1996, is hereby REINSTATED. In all other respects, the Decision of the Housing and Land Use Regulatory Board dated January 13, 1998 is AFFIRMED in toto.7 The Motion for Reconsideration of herein petitioners having been denied in a Resolution dated 11 August 2000,

petitioners appealed to the Court of Appeals. In the assailed Decision dated 20 January 2003, the appellate court affirmed the Decision of the Office of the President, adopting the latter's conclusion that the establishment/expansion of the St. James Hospital is not a proscribed land use in the designated residential zone known as Mariquita Pueblo Subdivision. Petitioners' Motion for Reconsideration was subsequently denied in a Resolution dated 14 January 2005. Hence, the instant Petition. From the facts of the case, it is undisputed that the Mariquita Pueblo Subdivision located at Barangay Dita, Santa Rosa, Laguna, is located within an area classified as a residential zone under both the 1981 and 1991 Zoning Ordinances. There is also no question that a twostorey, ten-bed capacity hospital, such as St. James Hospital, was allowed to be constructed within a residential zone under the 1981 Zoning Ordinance. Likewise, it is apparent that under the 1981 Zoning Ordinance, the proposed expansion of the St. James Hospital into a fourstorey, forty-bed capacity hospital would be disallowed as it violates the restriction set by said Zoning Ordinance regarding permissible activities within a residential zone, which specifically limits any medical institution built within a residential zone to a two-storey, ten-bed capacity structure. Nonetheless, with the passage of the 1991 Zoning Ordinance, the proposed expansion of the St. James Hospital must now be decided in light of the provisions of the new Zoning Ordinance. Hence, the pivotal issue now to be resolved in this Petition is whether or not the proposed expansion of St. James Hospital into a fourstorey, forty-bed capacity medical institution may be permitted under the 1991 Zoning Ordinance. However, in order to settle the present controversy, it is essential that we determine the effect of the enactment of the 1991 Zoning Ordinance with respect to the proposed expansion of the St. James Hospital in view of the deletion therein of the phrase "hospitals with not more than ten capacity" from those enumerated as allowable uses in a residential zone as contained in Section 2, Article VI of the 1981 Zoning Ordinance.

Section 2, Article VI of the 1981 Zoning Ordinance states: SECTION 2. REGULATIONS FOR URBAN CORE ZONE. – This zone shall be devoted to various settlement activities that are residential and commercial, or institutional in character, subject to the following terms and conditions: 1. In the Residential Sector, only the following uses shall be allowed: a) All types of dwelling units (onefamily detached, two-family detached, one-family semi-detached, two-family semi-detached and multi-family of not more than 5 doors) b) Home occupation, or the practice of one's profession or occupation, such as tailoring, dressmaking, banking, and like provided that: b.1. Not more than five (5) outside assistants or helpers shall be employed; b.2. The use of the dwelling unit for the home occupation shall be clearly incidental and subordinate to its use for residential purpose by its occupants; b.3. As much as possible there shall be no change in the outside appearance of the building or premises; b.4. No equipment or process shall be used in such home occupation which creates noise, vibration, glare, fumes, odors, or electrical

interference or outside the dwelling unit if conducted in a place other than a singlefamily residence. In the case of electrical interference, no equipment or process shall be used which creates visual or audible interference in any radio or television receiver or causes fluctuation in line voltage off the premises. a) Elementary schools b) High Schools and vocational schools c) Chapels, churches, and other place of worship d) Clinics, hospitals with not more than ten (10) capacity e) Drugstores f) Backyard gardens and raising of pigs, poultry and other animals and fowls provided: 1. That they are only for family consum ption

2. No undue noise shall be created 3. No foul smell shall be emitted

recreational pursuit and maintenance of ecological balance of the municipality, subject to the following terms and conditions:

twenty-five (25%) percent of the floor area of the dwelling unit shall be used;

The following uses shall be allowed:

7.4. As much as possible there shall be no change in the outside appearance of the building premises;

1. Single detached family dwellings 2. Semi-detached family dwelling 3. Two detached family dwelling

4. Other sanitary require ments enforce d in the municip ality g) House

Boarding

h) Parks playground

and

i) Barangay tanod stations j) Neighborhood assembly hall k) Recreation centers8 On the other hand, Section 2, Article VI of the 1991 Zoning Ordinance reads: SECTION 2. REGULATIONS FOR RESIDENTIAL ZONE. – This zone shall be devoted to various settlements, activities that are residential, commercial, and institutional in character and other spaces designed for

4. Two semi-detached family dwelling 5. Multi-family dwelling with not more than five (5) families residing 6. Residential Subdivision Projects 7. Home occupation for the practice of one's profession or for engaging an inhouse business such as dressmaking, tailoring, baking, running a sari-sari store and the like, provided that: 7.1. Only members of the family residing within the premises shall be engaged in such home occupation; 7.2. Maximum of five (5) outside helpers or assistants shall be employed; 7.3. The use of the dwelling unit for home occupation shall be clearly incidental and subordinate to its use for residential purpose by its occupants and for the conduct of the home occupation, not more than

7.5. No home occupation shall be conducted in any accessory building; 7.6. No traffic shall be generated by such home occupation in greater volume than would normally be expected in a residential neighborhood and any need for parking generated by the conduct of such home occupation shall be met off the street and in a place other than in a required front yard; 7.7. No equipment or process shall be used in such home occupation which created noise, vibration, glare, fumes, odors, or electrical interference detectable to the normal sense off the lot, if the occupation is conducted in a single family residence or outside the dwelling unit if conducted in a place other than a singlefamily-residence. In the case of electrical interference, no equipment or process shall be used which created visual or audible interference in any radio or television receiver

or causes fluctuation in line voltage off the premises. 8. Backyard gardens and raising of pigs, poultry and other animals and fowls provided: 8.1. That they are only for family consumption; 8.2. No undue noise shall be created; 8.3. No foul smell shall be emitted; and 8.4. Other sanitary requirements enforced in the municipality are complied with. 9. Barangay Tanod Stations. 10. Police outposts.9 The enactment of the 1991 Zoning Ordinance effectively repealed the 1981 Zoning Ordinance. This intent to repeal is manifested in the very wordings of the 1991 Zoning Ordinance. The complete title of said Ordinance, "An Ordinance Adopting a Comprehensive Zoning Regulation for the Municipality of Santa Rosa, Laguna and Providing for the Administration, Enforcement and Amendment Thereof. And for the Repeal of all Ordinances in Conflict Therewith," as well as the Repealing Clause10 of the same Ordinance which states that "all other ordinances, rules or regulations that are in conflict with the provisions of this ordinance are hereby repealed,"11clearly express the intent of the Sangguniang Bayan of Santa Rosa, Laguna, to repeal any enactment that is inconsistent with the new Ordinance. The inclusion of this general repealing provision in the Ordinance predicated the intended repeal under the condition that a substantial conflict must be found in existing and prior acts.

This is what is known as an implied repeal. Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.12 There are two categories of implied repeal. The first is where the provisions in the two acts on the same subject matter are in an irreconcilable conflict, the latter act to the extent of the conflict constitutes an implied repeal of the earlier one.13 The second is if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law. 14 The second category of repeal is only possible if the revised statute was intended to cover the whole subject matter and as a complete and perfect system in itself. It is the rule that a subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of the former statute.15 In the case at bar, there is no doubt that the 1991 Zoning Ordinance not only covers the same, but embraces the whole subject matter contained in the 1981 Zoning Ordinance, and was enacted to substitute the latter. A perusal of the two pieces of legislation will reveal that both Ordinances were enacted to guide, control, and regulate the future growth and development of the Municipality of Santa Rosa, Laguna, in accordance with the municipality's development plan, as well as to promote the general welfare of the residents of the community by regulating the location and use of all buildings and land within the municipality. However, unlike the 1981 Zoning Ordinance, the 1991 Zoning Ordinance clearly identifies the development plan to which it is patterned after, specifically the development plan adopted by the Sangguniang Bayan through Kapasiyahan Blg. 20-91, dated 20 February 1991. Considering that the 1981 Zoning Ordinance was not in furtherance of the later development plan, consequently, there was the necessity to adopt a new statute to effect the changes contained therein, hence, the adoption of the 1991 Zoning Ordinance. Since it is presumed that the Sangguniang Bayan knew of the existence of the older Ordinance, by enacting the later law embracing the complete subject matter of the 1981 Zoning Ordinance, it must be concluded that the legislative body had intended to repeal the former Ordinance. With respect to the omission of the phrase "hospitals with not more than ten capacity" from the 1991 Zoning Ordinance,

we conclude that the Sangguniang Bayan did intend to remove such building use from those allowed within a residential zone. As ruled by this Court, when both intent and scope clearly evince the idea of a repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed repealed.16 Likewise, it must be stressed at this juncture that a comprehensive scrutiny of both Ordinances will disclose that the uses formerly allowed within a residential zone under the 1981 Zoning Ordinance such as schools, religious facilities and places of worship, and clinics and hospitals have now been transferred to the institutional zone under the 1991 Zoning Ordinance.17 This clearly demonstrates the intention of the Sangguniang Bayan to delimit the allowable uses in the residential zone only to those expressly enumerated under Section 2, Article VI of the 1991 Zoning Ordinance, which no longer includes hospitals. It is lamentable that both the Office of the President and the Court of Appeals gave undue emphasis to the word "institutional" as mentioned in Section 2, Article VI of the 1991 Zoning Ordinance and even went through great lengths to define said term in order to include hospitals under the ambit of said provision. However, they neglected the fact that under Section 4, Article VI of said Ordinance18, there is now another zone, separate and distinct from a residential zone, which is classified as "institutional", wherein health facilities, such as hospitals, are expressly enumerated among those structures allowed within said zone. Moreover, both the Office of the President and the appellate court failed to consider that any meaning or interpretation to be given to the term "institutional" as used in Section 2, Article VI must be correspondingly limited by the explicit enumeration of allowable uses contained in the same section. Whatever meaning the legislative body had intended in employing the word "institutional" must be discerned in light of the restrictive enumeration in the said article. Under the legal maxim expressio unius est exclusio alterius, the express mention of one thing in a law, means the exclusion of others not expressly mentioned.19 Thus, in interpreting the whole of Section 2, Article VI, it must be understood that in expressly enumerating the allowable uses within a residential zone, those not included in the

enumeration are deemed excluded. Hence, since hospitals, among other things, are not among those enumerated as allowable uses within the residential zone, the only inference to be deduced from said exclusion is that said hospitals have been deliberately eliminated from those structures permitted to be constructed within a residential area in Santa Rosa, Laguna. Furthermore, according to the rule of casus omissus in statutory construction, a thing omitted must be considered to have been omitted intentionally. Therefore, with the omission of the phrase "hospital with not more than ten capacity" in the new Zoning Ordinance, and the corresponding transfer of said allowable usage to another zone classification, the only logical conclusion is that the legislative body had intended that said use be removed from those allowed within a residential zone. Thus, the construction of medical institutions, such as St. James Hospital, within a residential zone is now prohibited under the 1991 Zoning Ordinance. Be that as it may, even if the St. James Hospital is now considered a non-conforming structure under the 1991 Zoning Ordinance as it is located in a residential zone where such use is no longer allowed, said structure cannot now be considered illegal. This is because the St. James Hospital was constructed during the effectivity of the 1981 Zoning Ordinance, and, as earlier stated, under the said Ordinance, the construction of a two-storey, ten-bed capacity hospital within a residential zone is explicitly allowed. Having concluded that the St. James Hospital is now considered a non-conforming structure under the 1991 Zoning Ordinance, we now come to the issue of the legality of the proposed expansion of said hospital into a four-storey, forty-bed medical institution. We shall decide this said issue in accordance with the provisions of the 1991 Zoning Ordinance relating to non-conforming buildings, the applicable law at the time of the proposal. As stated in Section 1 of Article X of the 1991 Zoning Ordinance: Section 1. EXISTING NON-CONFORMING USES AND BUILDINGS. The lawful uses of any building, structure or land at the point of

adoption or amendment of this Ordinance may be continued, although such does not conform with the provisions of this Ordinance. 1. That no non-conforming use shall [be] enlarge[d] or increased or exten[ded] to occupy a greater area or land that has already been occupied by such use at the time of the adoption of this Ordinance, or moved in whole or in part to any other portion of the lot parcel of land where such [non]-conforming use exist at the time of the adoption of this Ordinance.20 (Emphasis ours.) It is clear from the abovequoted provision of the 1991 Zoning Ordinance that the expansion of a non-conforming building is prohibited. Hence, we accordingly resolve that the expansion of the St. James Hospital into a four-storey, forty-bed capacity medical institution within the Mariquita Pueblo Subdivision is prohibited under the provisions of the 1991 Zoning Ordinance. WHEREFORE, premises considered, the instant Petition is hereby GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 60495, dated 20 January 2003, is hereby REVERSED and SET ASIDE and a new Decision entered: 1. Sustaining that the original two-storey, tenbed capacity St. James Hospital is allowable within the Mariquita Pueblo Subdivision, Sta. Rosa, Laguna as long as it shall comply with the provisions on existing non-conforming buildings under the 1991 Zoning Ordinance, as well as the rules and regulations and standards of the Department of Health, Department of Environment and Natural Resources and all other concerned government agencies; and

Panganiban, C.J., Chairperson, Ynares-Santiago, AustriaMartinez, Callejo, Sr., J.J., concur.

Footnotes 1

Penned by Associate Justice Salvador J. Valdez, Jr. with Associate Justices Eduardo P. Cruz and Mario L. Guariña III, concurring. Rollo, pp. 9-19. 2

O.P. Case No. 98-J-8560. CA rollo, pp. 27-35.

3

Id. at 36-38.

4

Id. at 30.

5

Id. at 32-33.

6

Id. at 27.

7

Id. at 34-35.

8

Id. at 153-154.

9

CA rollo, p. 50 and 52.

10

Section 5, Article XIII.

11

CA rollo, p. 81.

12

2. Prohibiting the proposed expansion of the St. James Hospital into a four-storey, forty-bed capacity hospital, the proposed expansion being illegal under the 1991 Zoning Ordinance.

Mecano v. Commission on Audit, G.R. No. 103982, 11 December 1992, 216 SCRA 500, 505, citingPosadas v. National City Bank, 296 U.S. 497, 80 L. Ed. 351 (1936). 13

SO ORDERED.

Id. at 506.

14

Id.

19

15

People v. Almuete, 161 Phil. 534, 541 (1976).

Republic v. Estenzo, G.R. No. L-35376, 11 September 1980, 99 SCRA 651, 656. 20

16

People v. Binuya, 61 Phil. 208, 210 (1935).

17

Article VI, Section 4. USE REGULATIONS IN INSTITUTIONAL ZONE – In the Institutional Zone, only the following shall be allowed: 1. Government center to move all national, regional, or local offices in the area; 2. Schools; 2.1. Public/Private schools.

3. Health facilities; 3.1. Emergency hospital 3.2 health centers 3.3. Multi-purpose clinics 3.4 Day-care centers 4. Religious Facilities such as churches, chapels and other places of worships. 5. Scientific, cultural and academic centers and research facilities. (CA rollo, pp. 51 and 54) Id.

amirez vs. Court of Appeals, No. L-38185, 144 SCRA 292 , September 24, 1986 G.R. No. L-38185 September 24, 1986 HILARIO RAMIREZ and VALENTINA BONIFACIO, petitioners, vs. HONORABLE COURT OF APPEALS, FRANCISCA MEDINA, MATILDE MARTIN, EMILIO MARTIN, DELFIN GUINTO, TEOFILO GUINTO, PRUDENCIO GUINTO and MARGARITA GUINTO, respondents. Castro, Makalintal, Mendoza & Associates for petitioner. Flores, Ocampo, Dizon & Domingo Law Office for respondents.

elementary

2.2. Municipal/Barangay/Private high schools

18

CA rollo, p. 69.

GUTIERREZ, JR., J.: This is an appeal from the decision of the Court of Appeals which affirmed in toto the decision of the then Court of First instance of Rizal rendered in the petition for review of the decree of registration issued in Land Registration Case No. N-2597, L.R.C. Record No. N-17939. On September 15,1959, petitioners-spouses Hilario Ramirez and Valentina Bonifacio filed an application for registration of a parcel of riceland in Pamplona, Las Pinas Rizal. After notice and publication nobody appeared to oppose the application. An order of general default was issued and the court allowed the petitioners to present evidence in support of their claim. Thereafter, the petitioners presented parol evidence that they acquired the land in question by purchase from Gregorio Pascual during the early part of the American regime but the corresponding contract of sale was lost and no copy or record of the same was available. On January 30, 1960, the court ordered the issuance of the decree of registration and consequently: Original Certificate of Title No. 2273 of the Registry of Deeds of Rizal was issued in the petitioners names. On March 30, 1960, the private respondents Francisca Medina, Basilio Martin, Matilde Martin, Delfin Guinto, Teofilo Guinto, Prudencio Guinto and Margarita Guinto, petitioners' nephews and nieces, filed a petition to review the decree of registration on the ground of fraud. The private respondents based their claim to the land on the following allegations: that they are the legal heirs of the

deceased Agapita Bonifacio who died intestate on March 11, 1936; that Valentina Bonifacio is a sister of the deceased Agapita Bonifacio, they being the children of one Gregoria Pascual; that Gregoria Pascual previously owned the land in question as evidenced by Tax Declaration No. 6611 of Las Pinas Rizal issued on December 8, 1920; that Agapita Bonifacio acquired the property in question by purchase from Gregoria Pascual for which reason Tax Declaration No. 8777 was issued in her name on May 21, 1928; that Gregoria Pascual during her lifetime, from 1916, possessed the said property in the concept of owner, publicly and uninterruptedly, which possession was continued by Agapita Bonifacio in 1928; that in 1938 respondents obtained a loan of P400.00 from the petitioners which they secured with a mortgage on the land in question by way of antichresis; that for this reason, Tax Declaration No. 8777 was cancelled and substituted by Tax Declaration Nos. 9522 and 2385 issued in the names of the petitioners; that, thereafter, the petitioners began paying taxes on the land; that after several attempts to redeem the land were refused by the petitioners, the respondents filed a complaint in the Court of First Instance of Pasay City docketed as Civil Case No. 272-R for the recovery of the possession and ownership of the said property; that when they learned of the issuance of the certificate of title to the land in the petitioners' names, they also filed the instant petition for review. The previous complaint, Civil Case No. 272-R, was subsequently dismissed on a joint petition filed by the parties after they agreed to have the determination of the question of ownership resolved in the registration proceedings. In their answer, the spouses Ramirez denied the material allegations of the petition, they based their claim to the land on two deeds of sale allegedly executed on April 15, 1937 and April 23, 1937 which they allegedly found accidentally in March 1960. After trial, the court found that deeds of sale spurious. It further found that the respondents took possession of the land as owners after the death of Agapita Bonifacio and in 1938, mortgaged it to the spouses Ramirez to secure the payment of a loan in the amount of P400.00. It was agreed that the respondents could not redeem the property within a period of five years and that the petitioners would take possession of the land, enjoy its fruits, and pay the land taxes thereon. The written agreement was kept by the petitioners as creditors. The trial court appreciated the fact of the petitioners' failure, despite formal request, to produce the document in court in favor of the respondents. Finding the claims of the herein respondents sustained by

the evidence, it ordered the reconveyance of the property in the following manner: WHEREFORE, judgment is hereby rendered in favor of petitioners and against applicants as follows: 1) Setting aside its decision dated December 28, 1959 insofar as it found and declared applicants to be the owners of the parcel of land described in Exhibits A, B and C and insofar as it ordered the registration thereof in their names; 2) Declaring the petitioners, all Filipinos, all of legal age, and all residents of Ligas Bacoor, Cavite, to be the true and absolute owners pro indiviso of the said parcel of land described in Exhibits A, B and C in the following proportions: a. Francisca Medina, married to Tomas de Leon, one-third (1/3) thereof; b. Emilio Martin, married to Dolores Antonio, and Matilde Martin, married to Federico Torres, one-third (1/3) thereof-, c. Teofilo Guinto, married to Rocila de la Cruz, Delfin Guinto, married to Gregoria Pamaran, Prudencio Guinto, married to Ana Guinto, and Margarita Guinto, married to Felix Calacala one- third (1/3) thereof; 3) Ordering the registration of the said parcel of land described in Exhibits A, B and C in the names of petitioners; 4) Setting aside its order for the issuance of the decree of registration in favor of applicants dated January 30, 1959, and ordering the issuance of the decree of registration in the names of petitioners; 5) Cancelling Original Certificate of Title No. 2273 of the Register of Deeds of Rizal in the names of applicants and the issuance in lieu thereof of another original certificate of title in the names of petitioners in the proportion of their ownership of the property as stated in paragraph 2 above; 6) Ordering applicants to pay P3,000.00 to petitioners as and for attorney's fees; 7) Ordering applicants to pay the costs of this suit. The decision was affirmed by the Court of Appeals. On a motion for reconsideration filed by the petitioners, the same appellate court, but with a new member, promulgated a resolution setting aside the original decision. On a motion for reconsideration filed by the private respondents, this resolution was set aside and the original decision was reinstated. The petitioners went to this Court in a petition for review on certiorari with the following questions: ONE-HAS THE COURT OF FIRST INSTANCE, ACTING AS A LAND REGISTRATION COURT, THE JURISDICTION TO GIVE DUE COURSE TO A PETITION

FOR REVIEW OF DECREE UNDER SEC. 38 OF ACT 496 AND TO RE-OPEN THE ORIGINAL PROCEEDINGS WHEN THE PETITION IS ACTUALLY ONE OF RECONVEYANCE AND NOT BASED ON ACTUAL OR EXTRINSIC FRAUD? TWO-DOES SEC. 38 OF ACT NO. 496 APPLY ON ALL FORES (SIC) TO ORIGINAL LAND REGISTRATION PROCEEDINGS HAD UNDER PARAGRAPH B, SECTION 48 OF COM. ACT NO. 141 AS AMENDED BY REP. ACT NO. 1942 WHEREIN THE LAND INVOLVED IS PUBLIC AGRICULTURAL LAND? THREE-HAS THE COURT OF FIRST INSTANCE, ACTING AS A LAND REGISTRATION COURT, THE POWER AND AUTHORITY TO VEST TITLE ON THE LAND INVOLVED TO HEREIN PRIVATE RESPONDENTS AND ORDER EVEN ITS PARTITION AMONGST THEM IN THE FACE OF THE ADMITTED FACT THAT THE LAND IS IN ACTUAL POSSESSION OF PETITIONERS WHILE PRIVATE RESPONDENTS HAD NOT POSSESSED THE SAME AT ALL? FOUR-DO THE PRIVATE RESPONDENTS HAVE THE LEGAL CAPACITY AND QUALIFICATION TO ACQUIRE AND BE VESTED BY THE COURT WITH TITLE TO THE LAND IN QUESTION? We find the petition without merit. The first question does not warrant favorable consideration. The issue was submitted to the appellate court and in our opinion, correctly resolved therein. The Court of Appeals stated: ... The petition alleged that 'the applicants Hilario Ramirez and Valentina Bonifacio willfully and fraudulently suppressed the facts that the petitioners are the legal and rightful owners of the ricefield in question and that they possess the said ricefield merely as antichretic creditors as security for the loan of P400.00; that the applicants are guilty of fraudulent misrepresentation and concealment when they declared in their application, in the case at bar, that no other person had any claim or interest in the said land.' These we believe are sufficient allegations of extrinsic fraud. In the applicant's application for registration, which followed the form required by the Land Registration Act, the applicants alleged that 'to the best of our knowledge and belief, there is no mortgage or incumbrance of any kind whatsoever affecting said land, nor any other person having any estate or interest therein, legal or equitable, in possession, remainder, reversion or expectancy.' This allegation is false and made in bad faith, for, as We have found, the applicants are not the owners of the land sought

to be registered and they are in possession thereof only as antichretic creditors. The averments in the petition for review of the decree of registration constitute specific and not mere general allegations of actual and extrinsic fraud. Competent proof to support these allegations was adduced. We find no compelling reason to disturb the findings of the two courts below. The petitioners in this case did not merely omit a statement of the respondents' interest in the land. They positively attested to the absence of any adverse claim therein. This is clear misrepresentation. The omission and concealment, knowingly and intentionally made, of an act or of a fact which the law requires to be performed or recorded is fraud, when such omission or concealment secures a benefit to the prejudice of a third person (Estiva v. Alvero, 37 Phil. 497). In the case of Libundan v. Palma Gil (45 SCRA 17), this Court held: The purpose of the law in giving aggrieved parties, deprived of land or any interest therein, through fraud in the registration proceedings, the opportunity to review the decree is to insure fair and honest dealing in the registration of land. But the action to annul a judgment, upon the ground of fraud, would be unavailing unless the fraud be extrinsic or collateral and the facts upon which it is based have not been controverted or resolved in the case where the judgment sought to be annulled was rendered. Extrinsic or collateral fraud, as distinguished from intrinsic fraud, connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case.' But intrinsicfraud takes the form of 'acts of a party in a litigation during the trial, such as the use of forged instruments or perjured testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case. Thus, relief is granted to a party deprived of his interest in land where the fraud consists in a deliberate misrepresentation that the lots are not contested when in fact they are, or in applying for and obtaining adjudication and registration in the name of a co-owner of land which he knows had not been alloted to him in the partition, or in intentionally concealing facts, and conniving with the land inspector to include in the survey plan the bed of a navigable stream, or in willfully misrepresenting that there are no other claims, or in deliberately failing to notify the

party entitled to notice, or in inducing him not to oppose an application, or in misrepresenting about the indentity of the lot to the true owner by the applicant causing the former to withdraw his opposition. In all these examples the overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case, The fraud, therefore, is one that affects and goes into the jurisdiction of the court. The second question assigned as an error must also be resolved against the petitioners. Section 122 of Act No. 496 otherwise known as the Land Registration Act provides: SEC. 122. Whenever public lands in the Philippine Islands belonging to the Government of the United States or to the Government of the Philippine Islands are alienated, granted, or conveyed to persons or the public or private corporations, the same shall be brought forthwith under the operation of this Act and shall become registered lands. It shall be the duty of the official issuing the instrument of alienation, grant, or conveyance in behalf of the Government to cause such instrument before its delivery to the grantee, to be filed with the register of deeds for the province where the land lies and to be there registered like other deeds and conveyances, whereupon a certificate shall be entered as in other cases of registered land, and an owner's duplicate certificate issued to the grantee. The deed, grant, or instrument of conveyance from the Government to the grantee shall not take effect as a conveyance or bind the land, but shall operate only as contract between the Government and the grantee and as evidence of authority to the clerk or register of deeds to make registration. The act of registration shall be the operative act to convey and affect the land, and in all cases under this Act, registration shall be made in the office of the register of deeds for the province where the land lies. The fees for registration shall be paid by the grantee. After due registration and issue of the certificate and owner's duplicate, such land shall be registered land for all purposes under this Act. The law is clear. We can apply it to the facts without need for judicial interpretation. Once the deed, grant, or instrument of conveyance of public land is registered with the Register of Deeds and the corresponding certificate and owner's duplicate title is issued, such land is deemed registered land. It is brought within the scope and operation of the Land Registration Law. This is the doctrine laid down by this Court in a long line of cases. (See Heirs of Deogracias Ramos v. Court of Appeals, 139

SCRA 293; Lahora v. Dayanghirang 37 SCRA 346; Ramirez v. Court of Appeals, 30 SCRA 297; Director of Lands v. Jugado 2 SCRA 32; Nelayan v. Nelayan, 109 Phil. 183; Republic v. Heirs of Carle 105 Phil. 1227; El Hogar Filipino v. Olviga, 60 Phil. 17; Manolo v. Lukban, 48 Phil. 973). The land in this case having been registered and covered by an original certificate of title issued by the Register of Deeds of Rizal, it is within the provisions of the Land Registration Act. Thus, the decree of registration granted by the lower court in favor of the petitioners may be reviewed on the ground of actual and extrinsic fraud pursuant to Section 38 of the same Act. There is likewise no merit in the third assigned error. While there was an admission that the petitioners have been in actual possession of the disputed land since 1938, it was made to show and prove the fact that the petitioners are only antichretic creditors. The respondents never admitted that they have not possessed the land at all. On the contrary, they alleged that they and their predecessors-ininterest namely Gregoria Pascual and Agapita Bonifacio have been in possession of the land since time immemorial and that the petitioners were placed in possession of the land pursuant to a contract of antichresis. The court below found that the petitioners are merely antichretic creditors. This finding and its factual bases were affirmed by the Court of Appeals. On the basis of the evidence supporting this conclusion, this finding is binding on us as it is not our duty to weigh evidence on this point all over again. This court has on several occasions held that the antichretic creditor cannot ordinarily acquire by prescription the land surrendered to him by the debtor (Trillana v. Manansala, et al., 96 Phil. 865; Valencia v. Acala, 42 Phil. 177; Barreto v. Barreto, 3 Phil. 234). The petitioners are not possessors in the concept of owner but mere holders placed in possession of the land by its owners. Thus, their possession cannot serve as a title for acquiring dominion (See Art. 540, Civil Code). The fourth issue raised by the petitioners is answered by a referral to the detailed factual findings and conclusions of the trial court. Ten pages of the record on appeal (Record on Appeal, CA-G.R. No. 40425-R, pp. 56-66) state in convincing detail the portion of the trial court's decision which support its conclusion that Hilario Ramirez and Valentina Bonifacio are not the owners of the disputed land and have no registrable right over it and that the respondents herein have established their ownership by a strong preponderance of evidence. The respondents were declared the true and real owners and entitled to

registration in their names. The final resolution of the Court of Appeals affirmed the trial court's decision in toto. We see no reversible error in this finding. The argument of laches is explained and countered by the close relationship of the parties and the nature of a contract of antichresis. The private respondents are nephews and nieces, with their spouses, of the petitioners. Moreover, there is evidence to show that long before the filing of the cases, there had been attempts to recover the property. In view of the foregoing, we are constrained to affirm the appellate court's decision. We note, however, that in spite of the finding of an existing contract of antichresis between the parties, the two courts below did not order the payment of the principal amount of mortgage. Under Article 2136 of the Civil Code, the debtor cannot reacquire the enjoyment of the immovable without first having totally paid what he owes the creditor. WHEREFORE, the decision appealed from is hereby AFFIRMED with a modification that the respondents are ordered to pay the petitioners the amount of P 400.00 as principal for the contract of antichresis, the fruits obtained from the possession of the land having been applied to the interests on the loan. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 141285

July 5, 2001

CEBU INSTITUTE OF MEDICINE and DR. JOSEFINA L. POBLETE, petitioners, vs. CEBU INSTITUTE OF MEDICINE EMPLOYEES' UNIONNATIONAL FEDERATION OF LABOR, respondent. BELLOSILLO, J.:

May the mandatory share of an educational institution in the SSS, Medicare and Pag-Ibig premiums be charged against the seventy percent (70%) incremental tuition fee increase authorized under Sec. 5, par. (2), of RA 6728?1 Cebu Institute of Medicine (CIM), petitioner, is a non-stock, non-profit educational institution with Dr. Josefina L. Poblete as its incumbent dean at the time the instant petition was filed. Respondent Cebu Institute of Medicine Employees' Union – National Federation of Labor (UNION) is the duly certified bargaining representative of the employees of CIM. On 2 September 1997 the UNION asked CIM to stop its practice of charging the employer's mandatory share in the SSS, Medicare and Pag-Ibig premiums against the seventy percent (70%) incremental tuition fee increase under Sec. 5, par. (2), of RA 6728. CIM refused. Eventually, the dispute was submitted to voluntary arbitration. On 6 January 1999 Voluntary Arbitrator Julius Z. Neri rendered a decision2 in favor of the UNION holding that charging the employer's share in the SSS, Medicare and Pag-Ibig contributions against the seventy percent (70%) incremental tuition fee increase contravened Sec. 19, of RA 11613 thereof which provides – Sec. 19. Employer's Contributions. – (a) Beginning as of the last day of the month when an employee's compulsory coverage takes effect and every month thereafter during his employment his employer shall pay, with respect to such covered employee, the employer's contribution in accordance with the schedule indicated in section eighteen of this Act. Notwithstanding any contract to the contrary, an employer shall not deduct, directly or indirectly, from the compensation of his employees covered by the SSS or otherwise recover from them the employer's contributions with respect to such employees. In short, the Voluntary Arbitrator ordered CIM to refund the UNION of the employer's share in the SSS and Pag-Ibig premiums and to refrain from charging the employer's

share against the seventy percent (70%) incremental tuition fee increase.

which after all is for the benefit of petitioners' teaching and non-teaching personnel.

Its Motion for Reconsideration having been denied, CIM appealed to the Court of Appeals arguing that the Voluntary Arbitrator gravely erred in disregarding the clear tenor of Sec. 5, par. (2), of RA 6728, and in disallowing petitioners from deducting the employer's premiums for SSS and Pag-Ibig benefits from the seventy percent (70%) portion of the incremental tuition fee increase, and also in ordering a refund of the employer's premiums taken from the seventy percent (70%) portion.4

The law speaks of payment of "salaries, wages, allowances and other benefits." There is no specific prohibition against charging the employer's share to the incremental tuition fee increase. Hence, it cannot properly be said that the SSS, Medicare and Pag-Ibig premiums could be charged against the seventy percent (70%) incremental tuition fee increase but the employer's share of the contribution should be deducted from the remaining thirty percent (30%) or elsewhere. This would seem absurd. As we can see it, the employer's share in the SSS, Medicare and Pag-Ibig premiums is deemed integrated in the amount to be allocated for these benefits from the seventy percent (70%) incremental tuition fee increase. Ubi lex non distinguit, nec nos distinguere debemus. Where the law does not distinguish courts should not distinguish.6 For sure, the seventy percent (70%) is not to be delivered whole to the employees but packaged in the form of salaries, wages, allowances, and other benefitswhich may be in the form of SSS, Medicare and Pag-Ibig premiums, all intended for the benefit of the employees. In other words, the private educational institution concerned has the discretion on the disposition of the seventy percent (70%) incremental tuition fee increase. It enjoys the privilege of determining how much increase in salaries to grant and the kind and amount of allowances and other benefits to give. The only precondition is that seventy percent (70%) of the incremental tuition fee increase goes to the payment of salaries, wages, allowances and other benefits of teaching and non-teaching personnel.

The Court of Appeals affirmed the ruling of the Voluntary Arbitrator that to pay the employer's share out of funds allotted for the employees would make the employees contribute the entire amount of the said premiums, aside from the fact that it will reduce the portion of the tuition fee increases intended for their benefit.5 Petitioners disagree and this Court sustains them. Section 5, par. (2), of RA 6728 provides – x x x Assistance under paragraph (1), subparagraphs (a) and (b), shall be granted and tuition fees under subparagraph (c) may be increased on the condition that seventy percent (70%) of the amount subsidized allotted for tuition fee or of the tuition fee increases shall go to the payment of salaries, wages, allowances and other benefits of teaching and non-teaching personnel x x x x Provided, That government subsidies are not used directly for salaries of teachers of non-secular subjects. At least twenty percent (20%) shall go to the improvement or modernization of buildings, equipment, libraries, laboratories, gymnasia and similar facilities and to the payment of other costs of operation. As may be culled from the foregoing, salaries, wages, allowances and other benefits of teaching and nonteaching personnel are to be charged against the seventy percent (70%) incremental tuition fee increase. SSS, Medicare and Pag-Ibig fall under the category of "other benefits," hence, may very well be charged against the seventy percent (70%) incremental tuition fee increase

On the other hand, the remaining thirty percent (30%) is intended, quite obviously, for the use of the educational institution itself, otherwise, it will be a diminution of the aliquot share of the employer which is specifically intended under Sec. 5, par. (2), of RA 6728, "for the improvement or modernization of buildings, equipment, libraries, laboratories, gymnasia and similar facilities and to the payment of other costs of operation." Plainly, SSS, Medicare and Pag-Ibig premiums cannot be lumped in this category. The seventy percent (70%) incremental tuition fee increase for salaries, wages, allowances and other benefits under

RA 6728 may be compared to the sixty percent (60%) allocation contained in PD 4517 and BP Blg. 232.8 Under PD 451, the disposition of the sixty percent (60%) incremental tuition fee increase was limited to salaries and wages. No provision was made for allowances and other benefits unlike in RA 6728. Thus the provision was increased from sixty percent (60%) under PD 451 to seventy percent (70%) under RA 6728 obviously because of the inclusion of allowances and other benefits provided in the latter law. Under BP Blg. 232, which repealed PD 451, private school institutions were granted the authority to determine tuition fee increases on the condition that the application and use thereof be subject to the rules and regulations promulgated by the Ministry of Education, Culture and Sports (MECS).9 In University of Pangasinan v. Confesor,10decided under BP Blg. 232, this Court held x x x x salaries or wages, allowances and fringe benefits of Faculty and other staff, including accruals to cost of living allowance, 13th month pay, social security, medicare and retirement contribution and increases as may be provided in mandated wage orders, collective bargaining agreements or voluntary employer practices should be charged against the 60% tuition fee increase (underscoring supplied). Corollarily, under PD 451, the forty percent (40%) balance of the incremental tuition fee increase was to be devoted for institutional development, student assistance and extension services, and return on investments, the latter not to exceed twelve percent (12%) of the incremental proceeds, while under RA 6728 the balance is to be disposed of in the following manner: at least twenty percent (20%) of the incremental tuition fee increase shall go to the improvement or modernization of buildings, equipment, libraries, laboratories, gymnasia and other similar facilities, and to the payment of other costs of operation. It may be noted in RA 6728 that there is no provision for return on investments similar to that in PD 451. Also, RA 6728 does not set a maximum limit as to the amount to

be used in the improvement or modernization of buildings, equipment, libraries, laboratories, gymnasia and other similar facilities, and to the payment of other costs of operation. What it provides instead is a minimum which is twenty percent (20%). Therefore, not only twenty percent (20%) of the incremental tuition fee increase but the entire thirty percent (30%) balance from the incremental tuition fee increase is allocated for the improvement or modernization of buildings, equipment, libraries, laboratories, gymnasia and other similar facilities and to the payment of other costs of operation thus leaving nothing for return on investments, which would not be attractive to educational institutions; more so, if they would still be required to charge their share in the SSS, Medicare and Pag-Ibig premiums from sources other than the seventy percent (70%) incremental tuition fee increase. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 17 August 1999 and its Resolution of 13 December 1999 are REVERSED and SET ASIDE and a new one is entered allowing petitioner Cebu Institute of Medicine (CIM) to charge its share in the SSS, Medicare and Pag-Ibig premiums against the seventy percent (70%) incremental tuition fee increase under Sec. 5, par. (2) RA 6728. No costs.

5

Id., p. 38.

6

Dominado v. Derayunan, 49 Phil. 457 (1926); Ramirez v. Court of Appeals, G.R. No. 93833, 28 September 1995, 248 SCRA 590. 7

An Act Authorizing the Secretary of Education and Culture to Regulate the Imposition of Tuition and Other School Fees, Repealing Republic Act No. 6139, and for Other Purposes." 8

"The Education Act of 1982."

9

Now Department of Education, Culture and Sports. 10

G.R. No. 109977, 5 September 1997, 278 SCRA 591. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

SO ORDERED.1âwphi1.nêt Mendoza, Quisumbing, JJ., concur.

Buena,

and

De

Leon,

Jr.,

G.R. No. 155282

January 17, 2005

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents. Footnotes: DECISION 1

"Government Assistance to Students and Teachers in Private Education Act." 2

Annex "H," Rollo, pp. 159-164.

3

The Social Security Law.

4

Rollo, p. 37.

SANDOVAL-GUTIERREZ, J.: For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator

Loren Legarda, respondents, assailing the (a) Decision dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052. The facts are undisputed. On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of the television (TV) program "The Inside Story" produced and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The Philippine Women’s University (PWU) was named as the school of some of the students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode. The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter-complaints3 with petitioner MTRCB. Both complainants alleged that the episode besmirched the name of the PWU and resulted in the harassment of some of its female students. Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating Committee, alleging among others, that respondents (1) did not submit "The Inside Story" to petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8 In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial," the airing of which is protected by the constitutional provision on freedom of expression and of the press. Accordingly, petitioner has no power, authority and jurisdiction to impose any form of prior restraint upon respondents.

On February 5, 1993, after hearing and submission of the parties’ memoranda, the MTRCB Investigating Committee rendered a Decision, the decretal portion of which reads: "WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB. Heretofore, all subsequent programs of the ‘The Inside Story’ and all other programs of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly."101awphi1.nét On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993 affirming the above ruling of its Investigating Committee.11 Respondents filed a motion for reconsideration but was denied in a Resolution dated April 12 14, 1993. Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited provisions constitute "prior restraint" on respondents’ exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply to the "The Inside Story" because it falls under the category of "public affairs program, news documentary, or socio-political editorials" governed by standards similar to those governing newspapers. On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive portion of which reads:

"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered: 1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993; 2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they being public affairs programs which can be equated to newspapers; and 3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf. SO ORDERED." Petitioner filed a motion for reconsideration but was denied.24 Hence, this petition for review on certiorari. Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs programs, news documentaries, or sociopolitical editorials," are subject to petitioner’s power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Court’s ruling in Iglesia ni Cristo vs. Court of Appeals ;25second, television programs are more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioner’s power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents’ constitutional freedom of expression and of the press. Respondents take the opposite stance.

The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its exhibition or broadcast by television. The petition is impressed with merit. The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows: "SEC. 3. Powers and Functions. – The BOARD shall have the following functions, powers and duties: xxxxxx b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export.1a\^/phi1.net c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to: xxx d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end and that no

such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; x x x x x x." Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program "The Inside Story." The task is not Herculean because it merely resurrects this Court En Banc’sruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioner’s review power contending that the term "television programs" under Sec. 3 (b) does not include "religious programs" which are protected under Section 5, Article III of the Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase "all television programs," thus: "The law gives the Board the power to screen, review and examine all ‘television programs.’ By the clear terms of the law, the Board has the power to ‘approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x.’ The law also directs the Board to apply ‘contemporary Filipino cultural values as standard’ to determine those which are objectionable for being ‘immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime.’" Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere debemos. Thus, when the law says "all television programs," the word "all" covers all television programs, whether religious, public affairs, news documentary, etc.29 The principle assumes that the legislative body made no qualification in the use of general word or expression.30

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it has power of review. Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial" protected under Section 4,31 Article III of the Constitution. Albeit, respondent’s basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs x x x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristo’s religious program from petitioner’s review power. Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech and of the press. However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of the press has a preferred status. If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, according to respondents, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status. The only exceptions from the MTRCB’s power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels. Thus: "SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by

television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels." Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of newsreels. Their contention is unpersuasive. P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines newsreels as short motion picture films portraying or dealing with current events.33 A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already happened. Some concrete examples are those of Dziga Vertov’s RussianKino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term that was later translated literally into the French cinema verite) and Frank Capra’s Why We Fight series.34 Apparently, newsreels are straight presentation of events. They are depiction of "actualities." Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as "straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered newsreels."36 Clearly, the "The Inside Story" cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of news treatment; a cross between pure television news and news-related commentaries, analysis and/or exchange of opinions.37 Certainly, such kind of program is within petitioner’s review power.

whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program. Neither did it cancel respondents’ permit. Respondents were merely penalized for their failure to submit to petitioner "The Inside Story" for its review and approval. Therefore, we need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents contravene the Constitution. Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case or controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.38

Id. at 86-91.

3

Dated October 28, 1991

4

"SECTION 7. Unauthorized showing or exhibition. – It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theater or public place or television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or is assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels." 5

WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

"Creating the Movie and Television Review and Classification Board." "SECTION 3. Matters subject to review – All motion pictures, television programs and publicity materials, as defined in Chapter 1 hereof, whether these be for theatrical or nontheatrical distribution, for television broadcast or general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export, shall be subject to review by the BOARD before they are exported, imported, copied, distributed, sold, leased, exhibited or broadcast by television;" 6

7

Footnotes It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly, we are not called upon to determine

2

1

Penned by Judge Pizarro, Rollo at 73-81.

Normandie

B.

"SECTION 7. REQUIREMENT OF PRIOR REVIEW – No motion picture, television program or related publicity material shall be imported, exported, produced, copied, distributed, sold, leased, exhibited or broadcast by television without prior permit issued by the BOARD after

review of the motion picture, television program or publicity material." 8

Approved on July 27, 1993.

9

Dated November 18, 1991.

10

Annex "D" at 1, Petition, Rollo at 92.

motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; "SECTION 4. Decision. – The decision of the BOARD either approving or disapproving for exhibition in the Philippines a motion picture, television program, still and other pictorial advertisement submitted to it for examination and review must be rendered within a period of ten (10) days which shall be counted from the date of receipt by the BOARD of an application for the purpose, together with motion picture, television program, still or other pictorial advertisement to be reviewed." 16

11

Rollo at 92-99.

12

Id. at 100-106.

13

b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for export; 14

c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to:

17

Supra.

"SECTION 11. Penalty. – Any person who violates the provisions of this Decree and/or the implementing rules and regulations issued by the BOARD, shall, upon conviction, be punished by a mandatory penalty of three (3) months and one day to one (1) year imprisonment plus a fine of not less than fifty thousand pesos. The penalty shall apply whether the person shall have committed the violation either as principal, accomplice or accessory. If the offender is an alien, he shall be deported immediately. The license to operate the moviehouse, theater, or television station shall also be revoked. Should the offense be committed by a juridical person, the chairman, the president, secretary, treasurer, or the partner responsible therefore, shall be the persons penalized." 18

19

Supra.

15

d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all

imported, exported, produced, copied, distributed, sold, leased, exhibited or broadcast by television without prior permit issued by the BOARD after review of the motion picture, television program or publicity material." 21

"SECTION 28. OFFENSES AND ADMINISTRATIVE PENALTIES – Without prejudice to the institution of appropriate criminal action, violations of the laws and rules governing motion pictures, television programs, and related publicity materials shall be administratively penalized with suspension or cancellation of permits and licenses issued by the BOARD, depending on the gravity of the offense or in lieu thereof, the Chairman of the BOARD or the Hearing and Adjudication Committee, in his or its discretion, allow the payment of an administrative fine by the guilty party. The imposition of the administrative penalties for violation of Presidential Decree 1986 of its rules shall be in accordance with the table of penalties duly promulgated by the BOARD." 22

Approved on December 19, 1985.

23

Rollo at 73-81.

24

RTC Order dated August 26, 2002, Rollo at 82-85. 25

G.R. No. 119673, July 26, 1996, 259 SCRA 529. 26

Supra.

27

"No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed."

20

"SECTION 7. REQUIREMENT OF PRIOR REVIEW. – No motion picture, television program or related publicity material shall be

28

Tolentino vs. Catoy, 82 Phil. 300 (1948).

29

See Olfato vs. Commission on Elections, G.R. No. 52749, March 31, 1981, 103 SCRA 741.

a trolley system, the organization of farmers into communes, and the trial of Social Revolutionaries; one story shows starvation in the nascent Marxist state. Vertov’s driving vision was to capture "film-truth" – that is, fragments of actuality, which when organized together, have a deeper truth that cannot be seen with the naked eye. (Dziga Vertov, Wikipedia Encyclopedia, December 21, 2004, http:// en.wikipedia.org/wiki/DzigaVertov.)

30

Agpalo, Statutory Construction, Third Edition, 1995, at 153. 31

"SecTION 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." 32

VILLARAM A, JR., JJ.** UNIWIDE SALES WAREHOUSE CLUB, INC. and JIMMY GOW, Respondents.

Promulgated: December

14,

2009 x----------------------------------------- - - - - - - - - -x RESOLUTION

Supra. 35

Merriam Webster’s Third New International Dictionary (1993 Phil. Copyright).

Promulgated on August 22, 1993.

CORONA, J.:

33

36

Section 1(m), Chapter I, 1993 Implementing Rules and Regulations.

34

This is a petition for review on certiorari[1] of the

Documentary Film, Wikipedia Encyclopedia, December 21, 2004, http:// en.wikipedia.org/wiki/Documentary_film. The newsreel tradition is an important tradition in documentary film; newsreels were also sometimes staged but were usually reenactments of events that had already happened, not attempts to steer events as they were in the process of happening. For instance, much of the battle footage from the early 20th century was staged – the cameramen would usually arrive on site after a major battle and reenact scenes to film them.

37

TSN, September see Rollo at 159.

2,

1994

at

13-14; February

9,

2005

decision[2] and

June

28,

2005

38

Macasiano vs. National Housing Authority, G. R. No. 107921, July 1, 1993, 224 SCRA 236.

resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 85474.

THIRD DIVISION GINA M. TIANGCO and SALVACION JENNY MANEGO, Petitioners,

G.R. No. 168697 Petitioners Gina M. Tiangco and Salvacion Present: CORONA,

J.,

Jenny Manego[4] were employees of respondent Uniwide

Chairperson, VELASCO,

Sales Warehouse Club, Inc. (USWCI), a domestic

JR., In the Kino-Pravda series, Vertov focused on everyday experiences, eschewing bourgeois concerns and filming marketplaces, bars, and schools instead, sometimes with a hidden camera, without asking permission first. The stories were typically descriptive, not narrative, and included vignettes and exposes, showing for instance the renovation of

-

-

v

e

r

s u PERALTA,

s

-

corporation. Respondent Jimmy N. Gow was the president D EL of the corporation.[5] CA STI LL O* a Petitioner Tiangco was employed by respondent nd USWCI on June 10, 1997 as concession manager. In

1998, she was designated as group merchandising

On February 13, 2002, the respondents filed a

must remain suspended inasmuch as the mere approval of

manager for the fashion and personal care department

manifestation and motion praying that the proceedings on

the SARP did not constitute a valid ground for their

with a monthly salary of P45,000. On the other hand,

the consolidated cases be suspended on the ground that

reopening.[13]

petitioner Manego was initially employed as buyer on

respondent USWCI had been placed in a state of On June 16, 2004, the labor arbiter issued an

January 16, 1984 but was promoted as senior category

suspension of payments by the Securities and Exchange order directing the parties to file their memoranda. He

head with a monthly salary of P25,000.

[6]

Commission (SEC) as early as April 11, 2000 and a further stated that even without the memoranda, the cases receivership committee had in fact been appointed.

[10]

On July 5, 2001 and July 13, 2001, petitioners

would be ordered submitted for decision after the lapse of

Tiangco and Manego respectively filed separate complaints

On February 26, 2002, the labor arbiter

for illegal dismissal, payment of separation pay as well as

suspended the proceedings until further orders from the

award of moral and exemplary damages in the National

SEC.[11]

the period for filing.[14]

This prompted respondents to file a petition for certiorari[15] with prayer for a temporary restraining order Labor Relations Commission (NLRC). The complaints, On March 23, 2004, petitioners filed a motion to

(TRO) in the CA, imputing grave abuse of discretion on the

docketed as NLRC NCR Case Nos. 00-09-03512-2001 and reopen case on the ground that the SEC, in its order dated

part of the labor arbiter.

00-09-04757-2001, were consolidated.[7] December 23, 2002, had already approved the second On September 17, 2004, the CA granted the In his order dated January 11, 2002, the labor

amendment to the rehabilitation plan (SARP) of respondent application for a TRO.[16] In its February 9, 2005 decision, it

arbiter[8] considered the consolidated cases as submitted

USWCI.[12] granted the petition and reversed the June 16, 2004 order

for decision.

[9]

In their opposition to the motion, respondents

of the labor arbiter. It ruled that proceedings on the cases

argued that the proceedings in the consolidated cases

should remain suspended until further orders from the SEC

Sec. 6. In order to effectively exercise such jurisdiction, [22] the [SEC] shall possess the following powers:

citing Rubberworld (Phils.), Inc. v. NLRC[17] and Sections 6(b), 11 and 27, Rule 4 of the 2000 Interim Rules of Procedure

on

Corporate

Rehabilitation.[18] It

In Rubberworld, we held that a labor claim is a “claim” within the contemplation of PD 902-A, as

xxx denied

xxx

amended. This is consistent with the Interim Rules of

x

xx reconsideration on June 28, 2005.

Procedure on Corporate Rehabilitation which came out in

c) To appoint one or more receivers of the property, real and personal, which is the subject of the action pending before the [SEC] in accordance with the pertinent provisions of the Rules of Court in such other cases whenever necessary in order to preserve the rights of the parties-litigants and/or protect the interest of the investing public and creditors: xxx Provided, finally, that upon appointment of a management committee, rehabilitation receiver, board, or body, pursuant to this Decree, all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board or body shall be suspended accordingly. (Emphasis supplied)

Hence, this petition.

The issue determinative of this case is whether the consolidated illegal dismissal cases can be reopened at this point of the SEC proceedings for respondent USWCI’s rehabilitation.

This issue is far from novel. We resolved the same question as early as 1999 in Rubberworld (Phils.),

2000.[25] Section 1, Rule 2 of the Interim Rules defines “claims” as follows: Sec. 1. Definition of Terms purposes of these Rules: xxx

xxx xxx

“Claim” shall include all claims demands of whatever nature character against a debtor or property, whether for money otherwise.

or or its or

Thus, labor claims are included among the actions

Inc. v. NLRC[19] and since then, we have reiterated the The term “claim,” as contemplated in Section 6 ruling in several other cases.[20] (c), refers to debts or demands of a pecuniary nature.[23] It The relevant law dealing with the suspension of

- For

is

the

assertion

of

rights

for

the

payment

of

payments for money claims against corporations under

money.[24] Here, petitioners have pecuniary claims—the

rehabilitation is Presidential Decree No. (PD) 902-A,[21] as

payment of separation pay and moral and exemplary

amended. Section 6 (c) thereof provides:

damages.

suspended upon the placing under rehabilitation of employer-corporations. We stated in Rubberworld: It is plain from the foregoing provisions of law that "upon the appointment [by the SEC] of a management committee or a rehabilitation receiver," all actions for claims against the corporation pending before any court, tribunal or board shall ipso jure be suspended. The justification for the automatic stay of all pending actions for claims "is to

enable the management committee or the rehabilitation receiver to effectively exercise its/his powers free from any judicial or extra-judicial interference that might unduly hinder or prevent the 'rescue' of the debtor company. To allow such other actions to continue would only add to the burden of the management committee or rehabilitation receiver, whose time, effort and resources would be wasted in defending claims against the corporation instead of being directed toward its restructuring and rehabilitation."

xxx xxx

x

xx The law is clear: upon the creation of a management committee or the appointment of a rehabilitation receiver, all claims for actions "shall be suspended accordingly." No exception in favor of labor claims is mentioned in the law. Since the law makes no distinction or exemptions, neither should this Court. Ubi lex non distinguit nec nos distinguere debemos. Allowing labor cases to proceed clearly defeats the purpose of the automatic stay and severely encumbers the management committee's time and resources. The said committee would need to defend against these suits, to the detriment of its primary and urgent duty to work towards rehabilitating the corporation and making it viable again. To rule otherwise would open the floodgates to other similarly situated claimants and forestall if not defeat the rescue efforts. Besides, even if the NLRC awards the claims of private respondents, as it did, its ruling could not be enforced as long as the petitioner is under the management committee.

proceedings lifted on the ground that the SEC already

Article 217 of the Labor Code should be construed not in isolation but in harmony with PD 902A, according to the basic rule in statutory construction that implied repeals are not favored. Indeed, it is axiomatic that each and every statute must be construed in a way that would avoid conflict with existing laws. True, the NLRC has the power to hear and decide labor disputes, but such authority is deemed suspended when PD 902-A is put into effect by the [SEC]. [26]

xxx xxx

Petitioners seek to have the suspension of

x

xx

approved respondent USWCI’s SARP. However, there is no legal ground to do so because the suspensive effect of the

order

is

not

time-bound. As

we

reasonably necessary to accomplish its purpose.[30] This is clarified in the Interim Rules: Rule 4

x

xx xxx xx

This Court notes that PD 902-A itself does not provide for the duration of the automatic stay. Neither does the Order of the SEC. Hence, the suspensive effect has no time limit and remains in force as long as reasonably necessary to accomplish the purpose of the Order.[27] (Emphasis supplied)

In Philippine Airlines, emphasized

that

“this

Inc.

Court’s

v.

Zamora,[28] we

adherence

to

Sec. 6. Stay Order. – If the court finds the petition to be sufficient in form and substance, it shall, not later than five (5) days from the filing of the petition, issue an Order (a) appointing a Rehabilitation Receiver and fixing his bond; (b) staying enforcement of all claims, whether for money or otherwise and whether such enforcement is by court action or otherwise, against the debtor, its guarantors and sureties not solidarily liable with the debtor; xxx

the

abovestated rule has been resolute and steadfast as evidenced by its oft-repeated application in a plethora of

x xxx

xxx xxx

cases.”[29]

held

in Rubberworld, it continues to be in effect as long as

xxx xxx

stay

x

xx Sec. 11. Period of the Stay Order. – The stay order shall be effective from the date of issuance until the dismissal of the petition or the

termination of proceedings.

the

rehabilitation WHEREFORE, the petition is hereby DENIED.

xxx xxx

x

We note that the Rules of Procedure on

xx Sec. 27. Termination of Proceedings. – In case of the failure of the debtor to submit the rehabilitation plan, or the disapproval thereof by the court, or the failure of the rehabilitation of the debtor because of failure to achieve the desired targets or goals as set forth therein, or the failure of the said debtor to perform its obligations under the said plan, or a determination that the rehabilitation plan may no longer be implemented in accordance with its terms, conditions, restrictions, or assumptions, the court shall upon motion, motu proprio, or upon the recommendation of the Rehabilitation Receiver, terminate the proceedings. The proceedings shall also terminate upon the successful implementation of the rehabilitation plan. (Emphasis supplied)

No costs. Corporate Rehabilitation was approved on December 2, 2008 and took effect on January 16, 2009. Section 2, Rule 9 thereof provides: Sec. 2. Transitory Provision. – Unless the court orders otherwise to prevent manifest injustice, any pending petition for rehabilitation that has not undergone the initial hearing prescribed under the Interim Rules or Procedure for Corporate Rehabilitation at the time of effectivity of these Rules shall be governed by these Rules.

Considering that respondent USWCI’s SARP had already

SO ORDERED. RENATO C. CORONA Associate Justice Chairperson WE CONCUR:

PRESBITERO J. VELASCO, JR. Associate Justice Justice

MARIANO C. DEL CASTILLO Associate Justice Justice

DIOSDADO M. PERALTA Associate

MARTIN S. VILLARAMA, JR. Associate

been approved before then, the 2000 Interim Rules still We ruled in Sobrejuanite v. ASB Development

govern this case. ATTESTATION

Corporation[31] that the Interim Rules, under Section 1, Rule 1 thereof, are applicable although (as in this case) the petition for declaration of suspension of payments was filed prior to the effectivity of such rules:[32] Section 1. Scope — These Rules shall apply to petitions for rehabilitation filed by corporations, partnerships, and associations pursuant to [PD 902-A], as amended.

In sum, when the labor arbiter proceeded with the consolidated cases despite the SEC suspension order,

I attest that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

he exceeded his jurisdiction to hear and decide illegal dismissal cases and the CA correctly reversed his June 16, 2004 order.

RENATO C. CORONA Associate Justice Chairperson

[12]

Id., p. 29. Id. [14] Id. [15] Under Rule 65 of the Rules of Court. [16] Rollo, p. 30. [17] 365 Phil. 273 (1999). [18] Rollo, pp. 31-32. [19] Supra note 17. [20] Philippine Airlines, Inc. v. Philippine Airlines Employees Association (PALEA), G.R. No. 142399, 19 June 2007, 525 SCRA 29; Philippine Airlines, Inc. v. Zamora, G.R. No. 166996, 6 February 2007, 514 SCRA 584; Philippine Airlines, Inc. v. NLRC, G.R. No. 123294, 4 September 2000; Rubberworld [Phils.], Inc. v. [NLRC], 391 Phil. 318 (2000). [21] Reorganization of the [SEC] with Additional Powers and Placing the said Agency under the Administrative Supervision of the Office of the President. [22] Under RA 8799 (the Securities Regulation Code), jurisdiction over rehabilitation and suspension of payments was transferred from the SEC to the Regional Trial Courts. However, the SEC, pursuant to Section 5.2 of the same law, retains jurisdiction over pending suspension of payments/rehabilitation cases filed as of June 30, 2000 until finally disposed. [23] Uniwide Holdings, Inc. v. Jandecs Transportation Co., Inc., G.R. No. 168522, 19 December 2007, 541 SCRA 158, 163, citations omitted. [24] Id., citing Sobrejuanite v. ASB Development Corporation, infra note 3. [25] A.M. No. 00-8-10-SC. [26] Art. 217. Jurisdiction of [LAs] and the [NLRC]. – (a) Except as otherwise provided under this Code, the LAs shall have original and exclusive jurisdiction to hear and decide, xxx the following cases involving all workers, xxx xxx xxx xxx 2. Termination disputes; xxxx [27] Supra note 17, pp. 280-285 [28] Supra note 20. [29] Id., p. 605. [30] Supra note 17, p. 285, citing BF Homes Incorporated v. Court of Appeals, G.R. No. 76879, 3 October 1990, 190 SCRA 262, 268. [13]

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO Chief Justice

*

Per Special Order No. 805 dated December 4,

2009. **

Per Special Order No. 802 dated November 25,

2009. [1]

Under Rule 45 of the Rules of Court. Penned by Associate Justice Delilah VidallonMagtolis (retired) and concurred in by Associate Justices Perlita J. Tria Tirona (retired) and Jose C. Reyes, Jr. of the Fourth Division of the Court of Appeals. Rollo, pp. 26-34. [3] Id., p. 41. [4] “Salvacion Jenny Samañego” in some parts of the records. [5] Id., p. 27. [6] Id. [7] Id. [8] Melquiades Sol D. Del Rosario. Id., p. 236. [9] Id., p. 27. [10] Id., pp. 28, 306-330. On June 25, 1999, respondent USWCI filed a Petition for Declaration of Suspension of Payments, Formation and Appointment of a Rehabilitation Receiver/Committee and Approval of Rehabilitation Plan docketed as SEC Case No. 06-99-6340. Id., p. 289. [11] Id. [2]

[31]

G.R. No. 165675, 30 September 2005, 471 SCRA 763. [32] Id., p. 772.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47745 April 15, 1988 JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners vs. HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents. Jose S. Amadora & Associates for petitioners. Padilla Law Office for respondents.

CRUZ, J.: Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San JoseRecoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved . 4

April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the principal or taking any further action . 6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo.

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos was not a school of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the school at the time of the incident as the semester had already ended, that there was no clear identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody.

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharply disagree. The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their custody because the semester had already ended. There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows:

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar. In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy. This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts and trades in particular. The

modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers." Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960. In Palisoc vs. Brillantes, decided on October 4, 1971, a 16year old student was killed by a classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was already of age — was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice Teehankee: The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision. This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed

by students not yet of age as the school would be acting only in loco parentis. In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised." This is the case. Unlike in Exconde and Mercado, the Colegio de San JoseRecoletos has been directly impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed to be "in its custody." After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as nonacademic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices." The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part: I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be seriously

contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent terms "preceptores y artesanos" used in the Italian and French Civil Codes. If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility. There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provision would make the teacher or even the head of the school of arts and trades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the nonacademic school would be held liable, and simply because the latter is a school of arts and trades. The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is nonacademic. Notably, the injury subject of liability is caused

by the student and not by the school itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic. These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head thereof instead of imposing the liability only on the teacher? The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the task of teaching his students, who usually even boarded with him and so came under his constant control, supervision and influence. By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them, could be so blamed. It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such responsibility coextensive with the period when the student is actually undergoing studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves? From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes and ending upon the close thereof, and excluding the time before or after such period, such as the period of registration, and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended. It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released altogether from observance of its rules. As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody

and subject to the discipline of the school authorities under the provisions of Article 2180. During all these occasions, it is obviously the teacher-incharge who must answer for his students' torts, in practically the same way that the parents are responsible for the child when he is in their custody. The teacher-incharge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle of respondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of a bonus paterfamilias. Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which also states that: The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages. In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held

answerable by the law for the act of the student under him regardless of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher. The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head or the teacher in its employ. The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its students. A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his students as long as they are in the school premises and presumably under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas submission to the teacher's influence, besides being coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so

should be held to a greater accountability than the teacher for the tort committed by the child. And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused by the student or apprentice even if he is already of age — and therefore less tractable than the minor — then there should all the more be justification to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student. Applying the foregoing considerations, the Court has arrived at the following conclusions: 1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities. 2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacherin-charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's killer. 3. At any rate, assuming that he was the teacher-incharge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived

observance of the rules and regulations of the school or condoned their non-observance. His absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that discipline.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur. Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Separate Opinions 4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son. 5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody. In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San JoseRecoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked. WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

MELENCIO-HERRERA, J., concurring and dissenting: I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a teacher, which does not seem to be the intendment of the law. As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody. Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute parental authority: Art. 349 The following persons shall exercise substitute parental authority: xxx xxx xxx 2) Teachers and professors xxx xxx xxx 4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides: Art. 362. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution.... But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority. The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus: The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis supplied) Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage. And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family. Art. 2180. x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade establishments, with regard to their apprentices."

purpose. The Court cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should be amended or repealed.

GUTIERREZ, JR., J., concurring: I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

Separate Opinions

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops and factories and their relationship to the employer is covered by laws governing the employment relationship and not by laws governing the teacher— student relationship.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same duties and obligations as parents whenever in such a standing. Those persons are mandatorily held liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning their protective and supervisory custody.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would other members of the so-called-establishment. The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its

MELENCIO-HERRERA, J., concurring and dissenting: I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under the immediate charge of a teacher, which does not seem to be the intendment of the law.

Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby exercise substitute parental authority: Art. 349 The following persons shall exercise substitute parental authority: xxx xxx xxx 2) Teachers and professors xxx xxx xxx 4) Directors of trade establishments, with regard to apprentices;' Article 352 of the Civil Code further provides: Art. 362. The relations between teacher and pupil, professor and student, are fixed by government regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute parental authority. The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained in Palisoc vs. Brillantes (41 SCRA 548), thus: The protective custody of the school heads and teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as well as that of the school itself to provide proper supervision of the students' activities during the whole time that they are at attendance in the school, including recess time, as well as to take the necessary precautions to protect the students in their custody from dangers and hazards that would reasonably be anticipated, including injuries that some students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis supplied) Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the persons mentioned prove that they observed all the diligence of a good father of a family to prevent damage. And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents (Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself from liability by proving that it had exercised the diligence of a good father of the family. Art. 2180. x x x Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils, from "directors of trade establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

Footnotes

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is bound to result in mischief and injustice.

1 Rollo, pp. 63,157.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in "technological" colleges and universities are no different from students in liberal arts or professional schools. Apprentices now work in regular shops and factories and their relationship to the employer is covered by laws governing the employment relationship and not by laws governing the teacher— student relationship.

6 Id., pp. 23, 272.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often no longer objects of veneration who are given the respect due to substitute parents. Many students in their late teens or early adult years view some teachers as part of a bourgeois or reactionary group whose advice on behaviour, deportment, and other non-academic matters is not only resented but actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of negligence for acts of students even under circumstances where strictly speaking there could be no in loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt them as they would other members of the so-called-establishment.

2 lbid., p. 38. 3 Id., p. 23. 4 Id p. 31. Climaco, J., ponente, with Pascual and Agcaoili, JJ. 5 Id., pp. 30-31,

7 101 Phil, 843. 8 108 Phil, 414, 9 41 SCRA 548. 10 Concepcion, C.J., Reyes, Barredo, Villamor, and Makasiar, JJ. 11 Castro, Fernando, and Zaldivar, JJ.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 93468 December 29, 1994 The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections. However, the Court can suggest that such a law should be amended or repealed.

NATIONAL ASSOCIATION OF TRADE UNIONS (NATU)REPUBLIC PLANTERS BANK SUPERVISORS CHAPTER, petitioner, vs. HON. RUBEN D. TORRES, SECRETARY OF LABOR AND EMPLOYMENT and REPUBLIC PLANTERS BANK, respondents. Filemon G. Tercero for petitioner.

The Government Corporate Counsel for Republic Planters Bank.

positions in question and affidavits of certain employees. It also invoked provisions of the General Banking Act and the Central Bank Act to show the duties and responsibilities of the bank and its branches.

BELLOSILLO, J.:

On 23 March 1990, public respondent issued a decision partially granting the appeal, which is now being challenged before us —

NATIONAL ASSOCIATION OF TRADE UNIONS (NATU)REPUBLIC PLANTERS BANK SUPERVISORS CHAPTER seeks nullification of the decision of public respondent Secretary of Labor dated 23 March 1990, which modified the order of Med-Arbiter Manases T. Cruz dated 17 August 1989 as well as his order dated 20 April 1990 denying reconsideration. On 17 March 1989, NATU filed a petition for certification election to determine the exclusive bargaining representative of respondent Bank's employees occupying supervisory positions. On 24 April 1989, the Bank moved to dismiss the petition on the ground that the supposed supervisory employees were actually managerial and/or confidential employees thus ineligible to join, assist or form a union, and that the petition lacked the 20% signatory requirement under the Labor Code. On 17 August 1989, Med-Arbiter Manases T. Cruz granted the petition thus — WHEREFORE, . . . let a certification election be ordered conducted among all the regular employees of the Republic Planters Bank occupying supervisory positions or the equivalent within 20 days from receipt of a copy of this Order. The choice shall be: (1) National Association of Trade Unions (NATU)-Republic Planters Bank Supervisors Chapter; and (2) No Union. The payroll three months prior to the filing of this petition shall be utilized in determining the list of eligible voters . . . .1 Respondent Bank appealed the order to the Secretary of Labor on the main ground that several of the employees sought to be included in the certification election, particularly the Department Managers, Branch Managers/OICs, Cashiers and Controllers were managerial and/or confidential employees and thus ineligible to join, assist or form a union. It presented annexes detailing the job description and duties of the

WHEREFORE, . . . the appeal is hereby partially granted. Accordingly, the Order dated 17 August 1989 is modified to the extent that Department Managers, Assistant Managers, Branch Managers, Cashiers and Controllers are declared managerial employees. Perforce, they cannot join the union of supervisors such as Division Chiefs, Accounts Officers, Staff Assistants and OIC's (sic) unless the latter are regular managerial employees . . . . 2 NATU filed a motion for reconsideration but the same was denied on 20 April 1990. 3 Hence this recourse assailing public respondent for rendering the decision of 23 March 1990 and the order of 20 April 1990 both with grave abuse of discretion. The crucial issue presented for our resolution is whether the Department Managers, Assistant Managers, Branch Managers/OICs, Cashiers and Controllers of respondent Bank are managerial and/or confidential employees hence ineligible to join or assist the union of petitioner. NATU submits that an analysis of the decision of public respondent readily yields certain flaws that result in erroneous conclusions. Firstly, a branch does not enjoy relative autonomy precisely because it is treated as one unit with the head office and has to comply with uniform policies and guidelines set by the bank itself. It would be absurd if each branch of a particular bank would be adopting and implementing different policies covering multifarious banking transactions. Moreover, respondent Bank's own evidence clearly shows that policies and guidelines covering the various branches are set by the head office. Secondly, there is absolutely no evidence showing that bank policies are laid down through the collective action of the Branch Manager, the Cashier and the Controller. Thirdly, the organizational setup where the Branch Manager exercises control over branch operations, the Controller controls the Accounting Division, and the Cashier controls the Cash Division, is nothing but a proper delineation of duties and responsibilities. This delineation

is a Central Bank prescribed internal control measure intended to objectively establish responsibilities among the officers to easily pinpoint culpability in case of error. The "dual control" and "joint custody" aspects mentioned in the decision of public respondent are likewise internal control measures prescribed by the Central Bank. Neither is there evidence showing that subject employees are vested with powers or prerogatives to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. The bare allegations in the affidavits of respondent Bank's Executive Assistant to the President 4 and the Senior Manager of the Human Resource Management Department 5 that those powers and prerogatives are inherent in subject positions are selfserving. Their claim cannot be made to prevail upon the actual duties and responsibilities of subject employees. The other evidence of respondent Bank which purports to show that subject employees exercise managerial functions even belies such claim. Insofar as Department Managers and Assistant Managers are concerned, there is absolutely no reason mentioned in the decision why they are managerial employees. Not even respondent Bank in its appeal questioned the inclusion of Assistant Managers among the qualified petitioning employees. Public respondent has deviated from the real issue in this case, which is, the determination of whether subject employees are managerial employees within the contemplation of the Labor Code, as amended by RA 6715; instead, he merely concentrated on the nature, conduct and management of banks conformably with the General Banking Act and the Central Bank Act. Petitioner concludes that subject employees are not managerial employees but supervisors. Even assuming that they are confidential employees, there is no legal prohibition against confidential employees who are not performing managerial functions to form and join a union. On the other hand, respondent Bank maintains that the Department Managers, Branch Managers, Cashiers and Controllers are inherently possessed of the powers enumerated in Art. 212, par. (m), of the Labor Code. It relies heavily on the affidavits of its Executive Assistant to the President and Senior Manager of the Human Resource Department. The Branch Managers, Cashiers and Controllers are vested not only with policy-making powers necessary to run the affairs of the branch, given the

independence and relative autonomy which it enjoys in the pursuit of its goals and objectives, but also with the concomitant disciplinary authority over the employees. The Solicitor General argues that NATU loses sight of the fact that by virtue of the appeal of respondent Bank, the whole case is thrown open for consideration by public respondent. Even errors not assigned in the appeal, such as the exclusion by the Med-Arbiter of Assistant Managers from the managerial employees category, is within his discretion to consider as it is closely related to the errors properly assigned. The fact that Department Managers are managerial employees is borne out by the evidence of petitioner itself. Furthermore, while it assails public respondent's finding that subject employees are managerial employees, petitioner never questioned the fact that said officers also occupy confidential positions and thus remain prohibited from forming or joining any labor organization. Respondent Bank has no legal personality to move for the dismissal of the petition for certification election on the ground that its supervisory employees are in reality managerial employees. An employer has no standing to question the process since this is the sole concern of the workers. The only exception is where the employer itself has to file the petition pursuant to Art. 258 of the Labor Code because of a request to bargain collectively. 6 Public respondent, invoking RA 6715 and the inherent functions of Department Managers, Assistant Managers, Branch Managers, Cashiers and Controllers, held that these officers properly fall within the definition of managerial employees. The ratiocination in his Decision of 23 March 1990 7 is that — Republic Act No. 6715, otherwise known as the HerreraVeloso Law, restored the right of supervisors to form their own unions while maintaining the proscription on the right to self-organization of managerial employees. Accordingly, the Labor Code, as amended, distinguishes managerial, supervisory and rank-and-file employees thus: Art. 212 (m) — Managerial employee is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial

actions, if the exercise of such managerial authority is not routinary in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees (emphasis supplied). At first glance, pursuant to the above-definitions and based on their job descriptions as guideposts, there would seem to be no difficulty in distinguishing a managerial employee from that of a supervisor, or from that of a mere rank-andfile employee. Yet, this task takes on a different dimension when applied to banks, particularly the branches thereof. This is so because unlike ordinary corporations, a bank's organizational operation is governed and regulated by the General Banking Act and the Central Bank Act, both special laws . . . . As pointed out by the respondent, in the banking industry, a branch is the microcosm of a banking institution, uniquely autonomous and self-governing. This relative autonomy of a branch finds legal basis in Section 27 of the General Banking Act, as amended, thus: . . . . The bank shall be responsible for all business conducted in such branches to the same extent and in the same manner as though such business had all been conducted in the head office. For the purpose of this Act, a bank and its branches shall be treated as a unit (emphasis supplied). Conformably with the above, bank policies are laid down and/or executed through the collective action of the Branch Manager, Cashier and Controller at the branch level. The Branch Manager exercises over-all control and supervision over branch operation being on the top of the branch's pyramid structure. However, both the controller and the cashier who are called in banking parlance as "Financial Managers" due to their fiscal functions are given such a share and sphere of responsibility in the operations of the bank. The cashier controls and supervises the cash division while the controller that of the Accounting Division. Likewise, their assigned task is of great significance, without which a bank or branch for that matter cannot operate or function.

Through the collective action of these three branch officers operational transactions are carried out like: The two (2)signature requirement of the manager, on one hand, and that of the controller or cashier on the other hand as required in bank's issuances and releases. This is the socalled "dual control" through check-and-balance as prescribed by the Central Bank, per Section 1166.6, Book I, Manual of Regulations for Banks and Financial Intermediaries. Another is in the joint custody of the branch's cash in vault, accountable forms, collaterals, documents of title, deposit, ledgers and others, among the branch manager and at least two (2) officers of the branch as required under Section 1166.6 of the Manual of Regulations for Banks and Other Financial Intermediaries. This structural set-up creates a triad of managerial authority among the branch manager, cashier and controller. Hence, no officer of the bank ". . . have (sic) complete authority and responsibility for handling all phases of any transaction from beginning to end without some control or balance from some other part of the organization" (Section 1166.3, Division of Duties and Responsibilities, Ibid). This aspect in the banking system which calls for the division of duties and responsibilities is a clear manifestation of managerial power and authority. No operational transaction at branch level is carried out by the singular act of the Branch Manager but rather through the collective act of the Branch Manager, Cashier/Controller (emphasis supplied). Noteworthy is the "on call client" set up in banks. Under this scheme, the branch manager is tasked with the responsibility of business development and marketing of the bank's services which place him on client call. During such usual physical absences from the branch, the cashier assumes the reins of branch control and administration. On those occasions, the "dual control system" is clearly manifest in the transactions and operations of the branch bank as it will then require the necessary joint action of the controller and the cashier. The grave abuse of discretion committed by public respondent is at once apparent. Art. 212, par. (m), of the Labor Code is explicit. A managerial employee is (a) one who is vested with powers or prerogatives to lay down and execute management policies, or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees; or (b) one who is vested with both powers or prerogatives. A supervisory employee is different from a

managerial employee in the sense that the supervisory employee, in the interest of the employer, effectively recommends such managerial actions, if the exercise of such managerial authority is not routinary in nature but requires the use of independent judgment. Ranged against these definitions and after a thorough examination of the evidence submitted by both parties, we arrive at a contrary conclusion. Branch Managers, Cashiers and Controllers of respondent Bank are not managerial employees but supervisory employees. The finding of public respondent that bank policies are laid down and/or executed through the collective action of these employees is simply erroneous. His discussion on the division of their duties and responsibilities does not logically lead to the conclusion that they are managerial employees, as the term is defined in Art. 212, par. (m). Among the general duties and responsibilities of a Branch Manager is "[t]o discharge his duties and authority with a high sense of responsibility and integrity and shall at all times be guided by prudence like a good father of the family, and sound judgment in accordance with and within the limitations of the policy/policies promulgated by the Board of Directors and implemented by the Management until suspended, superseded, revoked or modified" (par. 5, emphasis supplied). 8 Similarly, the job summary of a Controller states: "Supervises the Accounting Unit of the branch; sees to the compliance by the Branch with established procedures, policies, rules and regulations of the Bank and external supervising authorities; sees to the strict implementation of control procedures (emphasis supplied). 9 The job description of a Cashier does not mention any authority on his part to lay down policies, either. 10 On the basis of the foregoing evidence, it is clear that subject employees do not participate in policy-making but are given approved and established policies to execute and standard practices to observe, 11 leaving little or no discretion at all whether to implement said policies or not. 12 It is the nature of the employee's functions, and not the nomenclature or title given to his job, which determines whether he has rank-and-file, supervisory or managerial status. 13 Moreover, the bare statement in the affidavit of the Executive Assistant to the President of respondent Bank that the Branch Managers, Cashiers and Controllers "formulate and implement the plans, policies and marketing strategies of the branch towards the successful

accomplishment of its profit targets and objectives," 14 is contradicted by the following evidence submitted by respondent Bank itself:

in-Charge of International Department, assigned the cable assistant of the International Department as the concurrent FCDU Accountable Forms Custodian." 19

(a) Memorandum issued by respondent Bank's Assistant Vice President to all Regional Managers and Branch Managers giving them temporary discretionary authority to grant additional interest over the prescribed board rates for both short-term and long-term CTDs subject, however, to specific limitations and guidelines set forth in the same memorandum; 15

However, a close scrutiny of the memorandum of Mr. Tuates reveals that he does not have said managerial power because as plainly stated therein, it was issued "upon instruction from Head Office." 20 With regard to the memorandum of Mr. Robite, Sr., it appears that the power he exercised was merely in an isolated instance, taking into account the other evidence submitted by respondent Bank itself showing lack of said power by other Branch Managers/OICs:

(b) Memorandum issued by respondent Bank's Executive Vice President to all Regional Managers and Branch Officers regarding the policy and guidelines on drawing against uncollected deposits (DAUD); 16 (c) Memorandum issued by respondent Bank's President to all Field Offices regarding the guidelines on domestic bills purchased (DBP); 17 and (d) Memorandum issued by the same officer to all Branch Managers regarding lending authority at the branch level and the terms and conditions thereof. 18 As a consequence, the affidavit of the Executive Assistant cannot be given any weight at all. Neither do the Branch Managers, Cashiers and Controllers have the power to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. The Senior Manager of the Human Resource Management Department of respondent Bank, in her affidavit, stated that "the power to hire, fire, suspend, transfer, assign or otherwise impose discipline among subordinates within their respective jurisdictions is lodged with the heads of the various departments, the branch managers and officers-incharge, the branch cashiers and the branch controllers. Inherent as it is in the aforementioned positions, the authority to hire, fire, suspend, transfer, assign or otherwise discipline employees within their respective domains was deemed unnecessary to be incorporated in their individual job descriptions; By way of illustration, on August 24, 1989, Mr. Renato A. Tuates, the Officer-inCharge/Branch Cashier of the Bank's Dumaguete Branch, placed under preventive suspension and thereafter terminated the teller of the same branch . . . . Likewise, on February 22, 1989, Mr. Francis D. Robite, Sr., the Officer-

(a) Memorandum from the Branch Manager for the AVP-Manpower Management Department expressing the opinion that a certain employee, due to habitual absenteeism and tardiness, must be penalized in accordance with respondent Bank's Code of Discipline; and (b) Memorandum from a Branch OIC for the Assistant Vice President recommending a certain employee's promotional adjustment to the present position he occupies. Clearly, those officials or employees possess only recommendatory powers subject to evaluation, review and final action by higher officials. Therefore, the foregoing affidavit cannot bolster the stand of respondent Bank. The positions of Department Managers and Assistant Managers were also declared by public respondent as managerial, without providing any basis therefor. Petitioner asserts that the position of Assistant Manager was not even included in the appeal filed by respondent Bank. While we agree with the Office of the Solicitor General that it is within the discretion of public respondent to consider an unassigned issue that is closely related to an issue properly assigned, still, public respondent's error lies in the fact that his finding has no leg to stand on. Anyway, inasmuch as the entire records are before us, now is the opportunity to discuss this issue. We analyzed the evidence submitted by respondent Bank in support of its claim that Department Managers are managerial employees 21 and concluded that they are not. Like Branch Managers, Cashiers and Controllers, Department Managers do not possess the power to lay down policies nor to hire, transfer, suspend, lay off, recall,

discharge, assign or discipline employees. They occupy supervisory positions, charged with the duty among others to "recommend proposals to improve and streamline operations." 22 With respect to Assistant Managers, there is absolutely no evidence submitted to substantiate public respondent's finding that they are managerial employees; understandably so, because this position is not included in the appeal of respondent Bank. As regards the other claim of respondent Bank that Branch Managers/OICs, Cashiers and Controllers are confidential employees, having control, custody and/or access to confidential matters, e.g., the branch's cash position, statements of financial condition, vault combination, cash codes for telegraphic transfers, demand drafts and other negotiable instruments, 23 pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody, 24 this claim is not even disputed by petitioner. A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. 25 While Art. 245 of the Labor Code singles out managerial employees as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed, as elucidated in several cases 26 the latest of which is Chua v. Civil Service Commission 27 where we said: No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication . . . . Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis . . . . In applying the doctrine of necessary implication, we took into consideration the rationale behind the disqualification of managerial employees expressed in Bulletin Publishing

Corporation v. Sanchez, 28 thus: ". . . if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership." Stated differently, in the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. 29 It is the same reason that impelled this Court to consider the position of confidential employees as included in the disqualification found in Art. 245 as if the disqualification of confidential employees were written in the provision. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act "in the interest of" the employers. 30 It is not farfetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect. Along the same line of reasoning we held in Golden Farms, Inc. v. Ferrer-Calleja 31 reiterated in Philips Industrial Development, Inc. v. NLRC, 32 that "confidential employees such as accounting personnel, radio and telegraph operators who, having access to confidential information, may become the source of undue advantage. Said employee(s) may act as spy or spies of either party to a collective bargaining agreement." In fine, only the Branch Managers/OICs, Cashiers and Controllers of respondent Bank, being confidential employees, are disqualified from joining or assisting petitioner Union, or joining, assisting or forming any other labor organization. But this ruling should be understood to apply only to the present case based on the evidence of the parties, as well as to those similarly situated. It should not be understood in any way to apply to banks in general. WHEREFORE, the petition is partially GRANTED. The decision of public respondent Secretary of Labor dated 23 March 1990 and his order dated 20 April 1990 are MODIFIED, hereby declaring that only the Branch Managers/OICs, Cashiers and Controllers of respondent

Republic Planters Bank are ineligible to join or assist petitioner National Association of Trade Unions (NATU)Republic Planters Bank Supervisors Chapter, or join, assist or form any other labor organization. SO ORDERED. Davide, Jr., Quiason and Kapunan, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting: I concur in the majority opinion's conclusion that respondent Bank's Branch Managers/OICs, Cashiers and Controllers, being confidential employees of the Bank, are disqualified from joining or assisting petitioner labor union or joining, assisting or forming any other labor organization, including a supervisor's union. However, I dissent from its conclusion that respondent Bank's Department Managers and Department Assistant Managers are not disqualified from joining a labor union including a supervisors' union. My years of experience in the banking industry (perhaps irrelevant to this case) have shown that positions of such Department Heads (Managers) are as confidential, if not more, than the position of Branch Managers. In fact, most of such Department Heads are Vice-Presidents of the Bank, which underscores their status both as managerial employees and confidential personnel of the Bank. It would be incongruous for a Department Manager who, as already stated, is usually a Vice-President, to be a member of the same labor organization as his messenger or supervisory account executives. It would be even more untenable and dangerous for a Department Manager who usually is a Vice-President, being a member of a labor union, to be designated a union representative for purposes of collective bargaining with the management of which he is a part. I think the public respondent is correct in disqualifying

from membership in a labor union of supervisors, those who are Department Managers and Assistant Managers. I, therefore, vote for the affirmance in toto of public respondent's decision of 23 March 1990 and order of 20 April 1990.

#Footnotes

21 Records, pp. 112-115.

1 Rollo, p. 33.

22 Rollo, p. 170.

2 Id., p. 28.

23 Records, pp. 120-121.

3 Id., pp. 18-19.

24 Id., p. 265.

4 Id., pp. 103-106.

25 See Panday v. NLRC, G.R. No. 67664, 20 May 1992, 209 SCRA 122.

# Separate Opinions 5 Id., pp. 112-113.

PADILLA, J., concurring and dissenting: I concur in the majority opinion's conclusion that respondent Bank's Branch Managers/OICs, Cashiers and Controllers, being confidential employees of the Bank, are disqualified from joining or assisting petitioner labor union or joining, assisting or forming any other labor organization, including a supervisor's union.

6 Philippine Telegraph and Telephone Corporation v. Laguesma, G.R. No. 101730, 17 June 1993, 223 SCRA 452. 7 Decision of public respondent Secretary of Labor promulgated 23 March 1990, Annex "B," Petition; Rollo, pp. 24-26.

26 In re Dick, 38 Phil. 41 [1918]; City of Manila v. Gomez, No. L-37251, 31 August 1981, 107 SCRA 98; Escribano v. Avila, No. L-30375, 12 September 1978, 85 SCRA 245; Go Chico v. Martinez, 45 Phil. 256 [1923]; Gatchalian v. COMELEC, No. L-32560, 22 October 1970, 35 SCRA 435; People v. Uy Jui Pio, 102 Phil. 679 [1957]; People v. Aquino, 83 Phil. 614 [1949].

8 Records, p. 111.

27 G.R. No. 88979, 7 February 1992, 206 SCRA 65, and cited cases therein.

However, I dissent from its conclusion that respondent Bank's Department Managers and Department Assistant Managers are not disqualified from joining a labor union including a supervisors' union. My years of experience in the banking industry (perhaps irrelevant to this case) have shown that positions of such Department Heads (Managers) are as confidential, if not more, than the position of Branch Managers. In fact, most of such Department Heads are Vice-Presidents of the Bank, which underscores their status both as managerial employees and confidential personnel of the Bank. It would be incongruous for a Department Manager who, as already stated, is usually a Vice-President, to be a member of the same labor organization as his messenger or supervisory account executives. It would be even more untenable and dangerous for a Department Manager who usually is a Vice-President, being a member of a labor union, to be designated a union representative for purposes of collective bargaining with the management of which he is a part. I think the public respondent is correct in disqualifying from membership in a labor union of supervisors, those who are Department Managers and Assistant Managers.

9 Id., p. 94.

28 G.R. No. 74425, 7 October 1986, 144 SCRA 628, 635.

10 Id., pp. 91-92.

29 Alcantara, Samson S., Philippine Labor and Social Legislation Annotated, 1991 Ed., p. 455.

I, therefore, vote for the affirmance in toto of public respondent's decision of 23 March 1990 and order of 20 April 1990.

19 Records, pp. 239-240.

11 Franklin Baker Company of the Philippines v. Trajano, G.R. No. 75039, 28 January 1988, 157 SCRA 416. 12 Southern Philippines Federation of Labor (SPFL) v. Calleja, G.R. No. 80882, 24 April 1989, 172 SCRA 676.

30 Pascual, Crisolito, Labor Relations Law, 1986 ed., p. 159. 31 G.R. No. 78755, 19 July 1989, 175 SCRA 471.

13 See Batongbacal v. Associated Bank, G.R. No. 72977, 21 December 1988, 168 SCRA 600.

32 G.R. No. 88957, 25 June 1992, 210 SCRA 339.

14 Records, pp. 249-250.

The Lawphil Project - Arellano Law Foundation

15 Rollo, pp. 201-203. 16 Id., pp. 204-205.

Republic of the Philippines SUPREME COURT Manila

17 Id., pp. 206-207. THIRD DIVISION 18 Id., p. 208. G.R. No. 96663

20 Id., pp. 233-238.

August 10, 1999

PEPSI-COLA PRODUCTS, PHILIPPINES, INC., petitioner, vs.

HONORABLE SECRETARY OF LABOR, MED-ARBITER NAPOLEON V. FERNANDO & PEPSI-COLA SUPERVISORY EMPLOYEES ORGANIZATION-UOEF, respondents,

UOEF and docketed as Case No. 725-90, on the grounds that (a) the members of the Union were managers and (b) a supervisors' union can not affiliate with a federation whose members include the rank and file union of the same company.

----------------------------G.R. No. 103300

August 10, 1999

PEPSI COLA PRODUCTS PHILIPPINES, petitioner, vs. OFFICE OF THE SECRETARY DEPARTMENT OF LABOR AND HON. CELENIO N. DAING, in his capacity as Med-Arbiter Labor Regional Office No. X, Cagayan de Oro City, CAGAYAN DE ORO PEPSI COLA SUPERVISORS UNION (UOEF), respondents.

On August 29, 1990, PEPSI presented a motion to re-open the case since it was not furnished with a copy of the Petition for Certification Election. On September 4, 1990, PEPSI submitted its position paper to the BLR in Case No. 725-90. On September 21, 1990, PEPSI received summons to appear at the pre-trial conference set on September 25, 1990 but which the hearing officer rescheduled on October 21, 1990.1âwphi1.nêt

PURISIMA, J.: These are petitions for certiorari relating to three (3) cases filed with the Med-Arbiter, to wit: MED ARB ROX Case No. R100-9101-RU-002 for Certification Election filed by Pepsi Cola Supervisors Union-UOEF (Union), MED ARB Case No. R1000-9102-RU-008, Re: Petition to Set Aside, Cancel and/or Revoke the Charter Affiliation of the Union, and MED-ARB ROX Case No. R1000-9104-RU-012, for Cancellation of Registration Certificate No. 11492-LC in favor of the Union. G. R. No. 96663 The facts that matter can be culled as follows: Sometime in June 1990, the Pepsi-Cola Employees Organization-UOEF (Union) filed a petition for certification election with the Med-Arbiter seeking to be the exclusive bargaining agent of supervisors of Pepsi-Cola Philippines, Inc. (PEPSI). On July 12, 1990, the Med-Arbiter granted the Petition, with the explicit statement that it was an affiliate of Union de Obreros Estivadores de Filipinas (federation) together with two (2) rank and file unions. Pepsi-Cola Labor Unity (PCLU) and Pepsi-Cola Employees Union of the Philippines (PEUP). On July 23, 1990, PEPSI filed with the Bureau of Labor Relations a petition to Set Aside, Cancel and/or Revoke Charter Affiliation of the Union, entitled PCPPI v. PCEU-

On October 12, 1990, PEPSI filed a Notice of Appeal and Memorandum of Appeal with the Secretary of Labor, questioning the setting of the certification election on the said date and five (5) days after. It also presented an urgent Ex-Parte Motion to Suspend the Certification Election, which motion was granted on October 18, 1990. On November 12, 1990, the Secretary of Labor denied the appeal and Motion for Reconsideration. Even as the Petition to Cancel, Revoke and Suspend Union Charter Certificate was pending before the BLR, PEPSI found its way to this Court via the present petition for certiorari. On February 6, 1991, the Court granted the prayer for temporary restraining order and/or preliminary injunction. The pivot of inquiry here is: whether or not a supervisors' union can affiliate with the same Federation of which two (2) rank and file unions are likewise members, without violating Article 245 of the Labor Code (PD 442), as amended, by Republic Act 6715, which provides: Art. 245. Ineligibility of managerial employees to join any labor organization; right of supervisory employees. — Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join, assist or form separate labor organizations of their own.

In its Comment dated March 19, 1991, the Federation argued that: The pertinent portion of Article 245 of the Labor Code states that. "Supervisory employees shall not be eligible for membership in a labor organization of the rank and file employees but may join, assist or form separate labor organization of their own. This provision of law does not prohibit a local union composed of supervisory employees from being affiliated to a federation which has local unions with rank-and-file members as affiliates. xxx

xxx

xxx

. . . the Petition to Cancel, Revoke or Set Aside the Charter Certificate of the private respondent is anchored on the alleged ground that certain managerial employees are included as members thereof. The grounds for the cancellation of the registration certificate of a labor organization are provided in Section 7 of Rule II, Book V of the Omnibus Rules Implementing the Labor Code, and the inclusion of managerial employees is not one of the grounds. . . . (in this case, the private respondent herein) remains to be a legitimate labor organization.1 On April 8, 1991, the Secretary of Labor and Employment, through the Office of the Solicitor General, sent in a Comment, alleging inter alia, that: . . . under Article 259 of the New Labor Code, only orders of the Med-Arbiter can be appealed through the Secretary of Labor and only on the ground that the rules and regulations for the conduct of the certification election have been violated. The Order of the Representation Officer is "interlocutory" and not appealable. . . . . . . until and unless there is a final order cancelling its certificate of registration or charter certificate, a labor organization remains to be a legitimate labor organization entitled to exercised all the rights and duties accorded to it by the Labor Code including the right to be certified as a bargaining representative. . . . . . . Public respondent cannot be deemed to have committed grave abuse of discretion with respect to an issue that was never presented before it for resolution. . . .

Art. 245 of the New Labor Code does not preclude the supervisor's union and the rank-and-file union from being affiliated with the same federation. xxx

xxx

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A federation of local union is not the labor organization referred to in Article 245 but only becomes entitled to all the rights enjoyed by the labor organization (at the company level) when it has complied with the registration requirements found in Articles 234 and 237. Hence, what is prohibited by Article 245 is membership of supervisory employees in a labor union (at the company level) of the rank and file. . . . . . . In other words, the affiliation of the supervisory employee's union with the same federation with which the rank and file employees union is affiliated did not make the supervisory employees members of the rank and file employee's union and vice versa.2 . . . PEPSI, in its Reply dated May 7, 1991, asserted: It is our humble contention that a final determination of the Petition to Set-Aside, Cancel, Revoke Charter Union Affiliation should first be disposed of before granting the Petition for the Conduct of Certification Election. To allow the conduct of the certification election to proceed would make any decision arrived at by the Bureau of Labor Relations useless inasmuch as the same would necessarily be rendered moot and academic.3 On June 7, 1991, petitioner again filed a Supplemental Reply stressing: It is likewise stressed that officials of both the PCLU and PEUP are top ranking officers of UOEF, the federation of supervisors' union, to wit:

The respondent supervisory union could do indirectly what it could not do directly as the simple expedient of affiliating with UOEF would negate the manifest intent and letter of the law that supervisory employees can only "join, assist or form separate labor organizations of their own" and cannot "be eligible for membership in a labor organization of the rank and file employees."4

On December 9, 1991, the Court resolved to DISMISS the case for "failure to sufficiently show that the questioned judgment is tainted with grave abuse of discretion."

On August 6, 1991, the Secretary of Labor and Employment filed a Rejoinder, claiming thus:

G. R. No. 103300

. . . an employer has no legal standing to question the validity of a certification election. . . . For this reason, the Supreme Court has consistently held that, as a rule, a certification election is the sole and exclusive concern of the employees and that the employer is definitely an intruder or a mere bystander (Consolidated Farms vs. Noriel, L-47752, July 31, 1978, 84 SCRA 469; Filipino Metals Corporation vs. Ople, L-43861, September 4, 1981, 107 SCRA 211; Trade Unions of the Philippines and Allied Services (TUPAS) vs. Trajano No. L-61153, January 17, 1983, 120 SCRA 64]. xxx

xxx

In Adamson & Adamson, Inc. vs. CIR No. L-35120, January 31, 1984, 127 SCRA 268, the Supreme Court (then dealing with the interpretation of Section 3 of the Industrial Peace Act, from which Section 245 of the Labor Code was derived) grappled with the issue in the case at bar. It held that, There is nothing in the provisions of the Industrial Peace Act which provides that a duly registered local union affiliating with a national union or federation loses its legal personality, or its independence. xxx

POSITION IN RANK AND FILE POSITION IN FEDERATION UNION 1. Rogelio de la Cruz PCLU-President General Vice President 2. Felix Gatela PEUP-President General Treasurer 3. Carlito Epino PCLU Board Member Educational Research Director xxx xxx xxx

xxx

xxx

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However, there is absolutely nothing in the Labor Code that prohibits a federation from representing or exercising influence over its affiliates. On the contrary, this is precisely the reason why federations are formed and are allowed by law to exist.5 On November 8, 1991, the Union also filed a Rejoinder.

In a Resolution dated March 2, 1992, the Second Division of the Court resolved to grant the motion for reconsideration interposed on January 28, 1992.

What are assailed in this case is Med-Arbiter Order dated May 23, 1991 and the Decision and Order of the Secretary of Labor and Employment, dated October 4, 1991 and December 12, 1991, respectively. The decretal portion of the Med-Arbiter Order under attack, reads: WHEREFORE, premises considered, an order is hereby issued: 1. Dismissing MED ARB ROX CASE NO. R1000-919104RU-012 and R1000-9102-RU-008 for lack of merit; and 2. Ordering the conduct of a Certification Election to be participated by and among the supervisory workers of the respondent company, Pepsi-Cola Products Philippines, Inc. at its plant at Tin-ao, Cagayan de Oro City, including all the satellite warehouse within the territorial coverage and control of the Cagayan de Oro Pepsi-Cola Plant. The choices are as follows: 1. Cagayan de Oro Pepsi-Cola Supervisors Union (U.O.E.P.) 2. No union. The parties are directed to attend a pre-election conference on June 10, 1991, 2:30 p.m. at the Regional Office to determine the qualification of the voters and to thresh out the mechanics of the election. Respondent/employer is directed to submit five (5) copies of the names of the rank and file workers taken from the payroll on October 1-31, 1991; alphabetically arranged (sic) indicating their names and positions and dates of employment and to bring the aforementioned payroll during the pre-election conference for verification purposes.6 . . .

The supervisory employees of the Union are:

RESPONDENT'S OFFICERS AND MEMBERS ARE NOT MANAGERIAL EMPLOYEES;

useless. Its judgment would have been impossible of execution . . . .

POSITION 1. Felipe Valdehueza Route Manager 2. Gerberto Vertudazo C & C Manager 3. Paul Mendoza Sales Service Department Manager 4. Gilberto Emano, Jr. Route Manager 5. Jaime Huliganga Chief Checker 6. Elias Edgama, Sr. Accounting Manager 7. Romanico Ramos Route Manager 8. Raul Yacapin Route Manager 9. Jovenal Albaque Route Manager 10. Fulvio Narciso Route Manager 11. Apolinario Opiniano Route Manager 12. Alfredo Panas Route Manager 13. Simplicio Nelie Route Manager 14. Arthur Rodriguez Route Manager 15. Marco Ilano Warehouse Operations Manager and 16. Deodoro Ramos Maintenance Manager On June 6, 1991, PEPSI appealed the said Order to the Secretary of Labor and Employment on the ground of grave abuse of discretion, docketed as Case No. OS-A232-91.

PRIVATE RESPONDENT IS PROHIBITED FROM AFFILIATING ITSELF WITH A FEDERATION ALREADY AFFILIATED WITH THE RANK AND FILE UNION;

However, in the case of University of San Agustin, Inc., et al. vs. Court of Appeals, et al., the court resolved the case, ruling that "even if a case were moot and academic, a statement of the governing principle is appropriate in the resolution of dismissal for the guidance not only of the parties but of others similarly situated. . . .10

On October 4, 1991, the Secretary modified the appealed decision, ruling thus: WHEREFORE, the Order of the Med-Arbiter dated 23 May 1991 is hereby modified to the effect that MED ARB ROX Case No. R1000-9104-RU-012 and R1000-9102-RU-008 are hereby referred to the Office of the Regional Director which has jurisdiction over these cases. The call for certification election among the supervisory workers of the Pepsi-Cola Products Philippines, Inc. at its plant at Tin-ao, Cagayan de Oro City is hereby sustained.7 On October 19, 1991, PEPSI presented a motion for reconsideration of the aforesaid Order but the same was denied on December 12, 1991. Meanwhile, the BLR issued Registration Certificate No. 11492-LC in favor of the Union. Dissatisfied therewith, PEPSI brought the instant petition for certiorari, contending that: PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT PRIVATE

PUBLIC RESPONDENT COMMITTED GRAVE OF (SIC) ABUSE OF DISCRETION IN RULING THAT THE INSTITUTION OF A PETITION FOR CANCELLATION OF UNION REGISTRATION DOES NOT CONSTITUTE A PREJUDICIAL QUESTION TO A PETITION CERTIFICATION ELECTION.8 The petitions must fail for want of merit. At the outset, it must be stressed that on September 1, 1992, there was a Resolution of the Union withdrawing from the Federation, to wit: BE IT RESOLVED, as it is hereby RESOLVED, that this UNION WITHDRAW, as it hereby WITHDRAWS its affiliation from the Union de Obreros Estivadores de Filipinas, and at the same time, give our thanks to the said federation for its help and guidance rendered to this Union in the past.9

In Atlas Lithographic Services, Inc. v. Laguesma, 205 SCRA 121 [1992] decided by the Third Division with J. Gutierrez, Jr., as ponente and JJ. Feliciano, Bidin, Romero and now Chief Justice Davide, Jr., as members it was ratiocinated: xxx

In a long line of cases (Narciso Nakpil, et. al., vs. Hon. Crisanto Aragon, et. al., G.R. No. L-24087, January 22, 1980, 95 SCRA 85; Toribio v. Bidin, et. al., G.R. No. L37960, February 28, 1980, 96 SCRA 361; Gumaua v. Espino, G.R. No. L-36188 — 37586 February 29, 1980, 96 SCRA 402), the Court dismissed the petition for being moot and academic. In the case of F. C. Fisher v. Yangco Steamship Co., March 31, 1915, the Court held: It is unnecessary, however to indulge in academic discussion of a moot question. . . . . . . The action would have been dismissed at any time on a showing of the facts as they were. The question left for the court was a moot one. Its Resolution would have been

xxx

Thus, if the intent of the law is to avoid a situation where supervisors would merge with the rank-and-file or where the supervisors' labor organization would represent conflicting interests, then a local supervisors' union should not be allowed to affiliate with the national federation of union of rank-and-file employees where that federation actively participates in union activity in the company. xxx

The issue in G.R. No. 96663, whether or not the supervisors union can be affiliated with a Federation with two (2) rank and file unions directly under the supervision of the former, has thus become moot and academic in view of the Union's withdrawal from the federation.

xxx

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xxx

The prohibition against a supervisors' union joining a local union of rank and file is replete with jurisprudence. The Court emphasizes that the limitation is not confined to a case of supervisors' wanting to join a rank-and-file union. The prohibition extends to a supervisors' local union applying for membership in a national federation the members of which include local unions of rank and file employees. The intent of the law is clear especially where, as in this case at bar, the supervisors will be co-mingling with those employees whom they directly supervise in their own bargaining unit. Anent the issue of whether or not the Petition to cancel/revoke registration is a prejudicial question to the petition for certification election, the following ruling in the case of Association of the Court of Appeals Employees (ACAE) vs. Hon. Pura Ferrer-Calleja, in her capacity as Director, Bureau of Labor Relations et. Al., 203 ACRA 597, 598, [1991], is in point, to wit:

. . . It is a well-settled rule that "a certification proceedings is not a litigation in the sense that the term is ordinarily understood, but an investigation of a non-adversarial and fact finding character." (Associated Labor Unions (ALU) v. Ferrer-Calleja, 179 SCRA 127 [1989]; Philippine Telegraph and Telephone Corporation v. NLRC, 183 SCRA 451 [1990]. Thus, the technical rules of evidence do not apply if the decision to grant it proceeds from an examination of the sufficiency of the petition as well as a careful look into the arguments contained in the position papers and other documents. At any rate, the Court applies the established rule correctly followed by the public respondent that an order to hold a certification election is proper despite the pendency of the petition for cancellation of the registration certificate of the respondent union. The rationale for this is that at the time the respondent union filed its petition, it still had the legal personality to perform such act absent an order directing the cancellation. xxx

xxx

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As regards the issue of whether or not confidential employees can join the labor union of the rank and file, what was held in the case of National Association of Trade Unions (NATU) — Republic Planters Bank Supervisors Chapter vs. Hon. R. D. Torres, et. al., G.R. No. 93468, December 29, 1994, applies to this case. Citing Bulletin Publishing Corporation vs. Sanchez, 144 SCRA 628, 635, Golden Farms vs. NLRC, 175 SCRA 471, and Pier 8 Arrastre and Stevedoring Services, Inc. vs. Hon. Nieves Roldan-Confessor et al., G.R. No. 110854, February 14, 1995, the Court ruled: . . . A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. While Art. 245 of the Labor Code singles out managerial employee as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed, as elucidated in several case; the latest of which is Chua v. Civil Service Commission where we said: No statute can be enacted that can provide all the details involved in its application. There is always an omission that

may not meet a particular situation. What is thought, at the time of the enactment, to be an all embracing legislation maybe inadequate to provide for the unfolding events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication . . ., Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis . . . In applying the doctrine of necessary implication, we took into consideration the rationale behind the disqualification of managerial employees expressed in Bulletin Publishing Corporation v. Sanchez, thus ". . . if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company — dominated with the presence of managerial employees in Union membership." Stated differently, in the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interest are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become one-sided. It is the same reason that impelled this Court to consider the position of confidential employees as included in the disqualification found in Art. 245 as if the disqualification of confidential employees were written in the provision. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act "in the interest of" the employers. It is not farfetched that in the course of collective bargaining, they might jeopardize that interest which they are duty bound to protect. Along the same line of reasoning we held in Golden Farms, Inc. vs. Ferrer-Calleja reiterated in Philips Industrial Development, Inc., NLRC, that "confidential employees such as accounting personnel, radio and telegraph operators who, having access to confidential information, may become the source of undue advantage.

Said employee(s) may act as spy or spies of either party to a collective bargaining agreement. The Court finds merit in the submission of the OSG that Route Managers, Chief Checkers and Warehouse Operations Managers are supervisors while Credit & Collection Managers and Accounting Managers are highly confidential employees. Designation should be reconciled with the actual job description of subject employees. A careful scrutiny of their job description indicates that they don't lay down company policies. Theirs is not a final determination of the company policies since they have to report to their respective superior. The mere fact that an employee is designated manager does not necessarily make him one. Otherwise, there would be an absurd situation where one can be given the title just to be deprived of the right to be a member of a union. In the case of National Steel Corporation v. Laguesma, G.R. No. 103743, January 29, 1996, it was stressed that: What is essential is the nature of the employee's function and not the nomenclature or title given to the job which determines whether the employee has rank and file or managerial status, or whether he is a supervisory employee. WHEREFORE, the petitions under consideration are DISMISSED but subject Decision, dated October 4, 1991, of the Secretary of Labor and Employment is MODIFIED in that Credit and Collection Managers and Accounting Managers are highly confidential employees not eligible for membership in a supervisors' union. No pronouncement as to costs.1âwphi1.nêt SO ORDERED. Melo, Vitug and Gonzaga-Reyes, JJ., concur. Panganiban, J., in the result.

Footnotes 1 Pepsi-Cola Supervisory Employees Organization — UOEF, Comment, pp. 4-6, Rollo, pp. 71-73. 2 Rollo, pp. 86-89, 92. 3 Rollo, p. 104.

4 Rollo, p. 110. 5 Rejoinder, pp. 2, 3, 10, 14; Rollo, pp. 125, 126, 133, 137. 6 OSG Comment, pp. 3-4, Rollo, pp. 145-146. 7 OSG Comment, p. 5, Rollo, p. 147. 8 Petition, pp. 8, 13, 14; Rollo, pp. 9, 14, 15.

In the realm of business and industry, we note that "project" could refer to one or the other of at least two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. The typical example of this first type of project is a particular construction job or project of a construction company. A construction company ordinarily carries out two or more discrete identifiable construction projects: e.g., a twenty-five- storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as "project employees," and their services may be lawfully terminated at completion of the project. The term "project" could also refer to, secondly, a particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times. The case at bar presents what appears to our mind as a typical example of this kind of "project." NSC undertook the ambitious Five Year Expansion Program I and II with the ultimate end in view of expanding the volume and increasing the kinds of products that it may offer for sale to the public. The Five Year Expansion

Program had a number of component projects: e.g., (a) the setting up of a "Cold Rolling Mill Expansion Project"; (b) the establishment of a "Billet Steel-Making Plant" (BSP); (c) the acquisition and installation of a "Five Stand TDM"; and (d) the "Cold Mill Peripherals Project." 8 Instead of contracting out to an outside or independent contractor the tasks of constructing the buildings with related civil and electrical works that would house the new machinery and equipment, the installation of the newly acquired mill or plant machinery and equipment and the commissioning of such machinery and equipment, NSC opted to execute and carry out its Five Yeear Expansion Projects "in house," as it were, by administration. The carrying out of the Five Year Expansion Program (or more precisely, each of its component projects) constitutes a distinct undertaking identifiable from the ordinary business and activity of NSC. Each component project, of course, begins and ends at specified times, which had already been determined by the time petitioners were engaged. We also note that NSC did the work here involved — the construction of buildings and civil and electrical works, installation of machinery and equipment and the commissioning of such machinery — only for itself. Private respondent NSC was not in the business of constructing buildings and installing plant machinery for the general business community, i.e., for unrelated, third party, corporations. NSC did not hold itself out to the public as a construction company or as an engineering corporation. Which ever type of project employment is found in a particular case, a common basic requisite is that the designation of named employees as "project employees" and their assignment to a specific project, are effected and implemented in good faith, and not merely as a means of evading otherwise applicable requirements of labor laws. Thus, the particular component projects embraced in the Five Year Expansion Program, to which petitioners were assigned, were distinguishable from the regular or ordinary business of NSC which, of course, is the production or making and marketing of steel products. During the time petitioners rendered services to NSC, their work was limited to one or another of the specific component projects which made up the FAYEP I and II. There is nothing in the record to show that petitioners were hired for, or in fact assigned to, other purposes, e.g., for operating or maintaining the old, or previously installed and commissioned, steel-making machinery and equipment, or for selling the finished steel products.

We, therefore, agree with the basic finding of the NLRC (and the Labor Arbiter) that the petitioners were indeed "project employees:" It is well established by the facts and evidence on record that herein 13 complainants were hired and engaged for specific activities or undertaking the period of which has been determined at time of hiring or engagement. It is of public knowledge and which this Commission can safely take judicial notice that the expansion program (FAYEP) of respondent NSC consist of various phases [of] project components which are being executed or implemented independently or simultaneously from each other . . . In other words, the employment of each "project worker" is dependent and co-terminous with the completion or termination of the specific activity or undertaking [for which] he was hired which has been pre-determined at the time of engagement. Since, there is no showing that they (13 complainants) were engaged to perform work-related activities to the business of respondent which is steelmaking, there is no logical and legal sense of applying to them the proviso under the second paragraph of Article 280 of the Labor Code, as amended. xxx xxx xxx The present case therefore strictly falls under the definition of "project employees" on paragraph one of Article 280 of the Labor Code, as amended. Moreover, it has been held that the length of service of a project employee is not the controlling test of employment tenure but whether or not "the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee". (See Hilario Rada v. NLRC, G.R. No. 96078, January 9, 1992; and Sandoval Shipping, Inc. v. NLRC, 136 SCRA 674 (1985). 9 Petitioners next claim that their service to NSC of more than six (6) years should qualify them as regular employees. We believe this claim is without legal basis. The simple fact that the employment of petitioners as project employees had gone beyond one (1) year, does not detract from, or legally dissolve, their status as project employees. 10 The second paragraph of Article 280 of the Labor Code, quoted above, providing that an employee who has served for at least one (1) year, shall be

considered a regular employee, relates to casual employees, not to project employees.

Sandoval Shipyards, Inc. v. National Labor Relations Commission, 136 SCRA 674 (1985).

In the case of Mercado, Sr. vs. National Labor Relations Commission, 11 this Court ruled that the proviso in the second paragraph of Article 280 relates only to casual employees and is not applicable to those who fall within the definition of said Article's first paragraph, i.e., project employees. The familiar grammatical rule is that a proviso is to be construed with reference to the immediately preceding part of the provision to which it is attached, and not to other sections thereof, unless the clear legislative intent is to restrict or qualify not only the phrase immediately preceding the proviso but also earlier provisions of the statute or even the statute itself as a whole. No such intent is observable in Article 280 of the Labor Code, which has been quoted earlier.

6 Articles 281-286, Labor Code, as amended.

Daniel C. Macaraeg and Alfredo P. Arenas for petitioner. Abelardo P. Fermin & Antonio Ruiz for respondents.

ACCORDINGLY, in view of the foregoing, the Petition for Certiorari is hereby DISMISSED for lack of merit. The Resolutions of the NLRC dated 8 January 1993 and 15 February 1993 are hereby AFFIRMED. No pronouncement as to costs.

7 Fortunato Mercado, Sr., et al. v. NLRC, et al. 201 SCRA 332 (1991); Philippine National Construction Corp. v. NLRC, 174 SCRA 191 (1989); Sandoval Shipping, Inc. v. NLRC, 136 SCRA 674 (1985); Ochoco v. NLRC, 120 SCRA 774 (1983). 8 Petition for Certiorari, pp. 3-11; Rollo, pp. 4-12. NLRC Resolution of 8 January 1993, pp. 7-13; Rollo, pp. 75-81. 9 NLRC Decision, Rollo, pp. 65-66. 10 Rada v. National Labor Relations Commission, 205 SCRA 69 (1992).

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila

Bellosillo, J., is on leave. FIRST DIVISION G.R. No. L-34024 April 5, 1978 #Footnotes 1 NLRC Resolution, 8 January 1993, p. 7; Rollo, p. 75. 2 Petition for Certiorari, 7 May 1993, pp. 3-11, Rollo, pp. 412. 3 NLRC Decision, 7 June 1991, Rollo, pp. 48-49; underscoring and brackets supplied. 4 Petition for Certiorari, 7 May 1993, p. 15; Rollo, p. 16. 5 Beta Electric Corporation v. National Labor Relations Commission, 182 SCRA 380 (1990); Cartagenas v. Romago Electric Co., Inc., 177 SCRA 637 (1989);

This is a petition for certiorari to review the decision of the Court of First Instance of Pangasinan at San Carlos City, Branch X, dismissing the petition for mandamus in Civil Case No. SCC-182. 1 In January 1971, Isidro G. Arenas, a City Judge of San Carlos City (Pangasinan), instituted against the City of San Carlos (Pangasinan), City Council of San Carlos City and the Mayor, Vice-Mayor, City Councilors and City Treasurer of San Carlos City, a petition for mandamus in the Court of First Instance of Pangasinan.

11 201 SCRA 332 (1991).

SO ORDERED. Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Romero, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

FERNANDEZ, J.:

ISIDRO G. ARENAS, petitioner, vs. CITY OF SAN CARLOS (PANGASINAN), CITY COUNCIL OF SAN CARLOS CITY, JUAN C. LOMIBAO, BENJAMIN POSADAS, DOUGLAS D. SORIANO, BASILIO BULATAO, CATALINA B. CAGAMPAN, EUGENIO RAMOS, FRANCISCO CANCINO, ALFREDO VINLUAN, MARCELO LAPEÑA, LEOPOLDO C. TULAGAN and TORIBIO PAULINO, in their official capacities as City Mayor, City Vice Mayor, City Councilors and City Treasurer, respectively, and Honorable Presiding Judge, COURT OF FIRST INSTANCE OF SAN CARLOS CITY (PANGASINAN), BRANCH X, respondents.

The petition alleged that the petitioner, Isidro G. Arenas, is the incumbent City Judge of San Carlos City (Pangasinan, that the respondent City of San Carlos, from the time of its creation in 1966 up to the present, has been classified as a third class city; that Republic Act No. 5967 which became effective on June 21, 1969 provides that the basic salaries of city judges of second and third class cities shall be P18,000.00 per annum; that the petitioner was then actually receiving a monthly salary of P1,000.00 of which P350.00 was the share of the national government and P650.00 is the share of the city government, which salary was P500.00 below the basic monthly salary of a City Judge of a third class city; that under Republic Act No. 5967, the difference between the salary actually being received by a City Judge and the basic salary established in said act shall be paid by the city government; that from June 21, 1969 up to the filing of the petition on January 21, 1971, the petitioner was entitled to a salary differential of P9,500.00 with the respondent City of San Carlos (Pangasinan); that the petitioner had repeatedly requested the respondents to enact the necessary budget and to pay him the said differential but the respondents, without any justification, whatsoever, refused and still refuse to do the same; that it is the clear duty of the respondent to enact the necessary budget providing for the payment of the salary of the petitioner as provided for in Republic Act No. 5967; that petitioner has no other plain, adequate and speedy remedy except the present action for mandamus; and that because of the refusal of the respondent to

comply with their obligation as provided in Republic Act No. 5967, the petitioner was forced to engage the services of a lawyer to file this action for which he was to pay the sum of P2,000.00 as attorney's fees. 2 In their answer dated February 10, 1971, the respondents admitted and denied the allegations in the petition and alleged that Republic Act No. 5967 further provides, among other things, that the salary of the city judge shall at least be one hundred pesos per month less than that of a city mayor; that the city judge receives an annual salary of P12,000.00 which is P100.00 per month less than the salary being received by the city mayor which is P13,200.00 yearly; that assuming the existence of a salary difference, in view of the provision of Republic Act No. 5967, that the payment of the salary difference shall be subject to the implementation of the respective city government, which is discretionary on the part of the city government as to whether it would or would not implement the payment of the salary difference, and in view of the financial difficulties of the city which has a big overdraft, the payment of the salary difference of the city judge cannot be made; and that the petitioner should pay his lawyer and should not charge the attorney's fees to the respondents who have not violated any rights of the petitioner. 3 The Court of First Instance of San Carlos City (Pangasinan), Branch X, rendered its decision dated May 31, 1971 dismissing the petition, without pronouncement as to costs. The pertinent portion of Section 7, Republic Act No. 5967 reads: Sec. 7. Unless the City Charter or any special law provides higher salary, the city judge in chartered cities shall receive a basic salary which shall not be lower than the sums as provided thereinbelow: xxx xxx xxx (c) For second and third class cities, eighteen thousand pesos per annum; xxx xxx xxx

For the cities of Baguio, Quezon, Pasay and other first class cities, the city judge shall receive one thousand pesos less than that fixed for the district judge, and for second and third class cities, the city judge shall receive one thousand five hundred pesos less than that fixed for the district judge, and for other cities, the city judge shall receive two thousand pesos less than that fixed for the district judge: Provided, however, That the salary of a city judge shall be at least one hundred pesos per month less than that of the city mayor. The petitioner contends that "... if the last proviso of said Section 7 of Republic Act No. 5967 would be interpreted as the controlling measure for fixing the salary of the city judges, then the principal provision of Section 7 fixing the salaries of City Judges at rate very much higher than that of a City Mayor (particularly in the case of second and third class cities) would be rendered totally useless." The petitioner submitted "that since the principal intention of the legislature in enacting Section 7 of Republic Act 5967 is to increase the salary of the city judges, then the last proviso of said Section 7 should give way to the provisions of said section preceding said proviso." The record shows that when Republic Act No. 5967 took effect on June 21, 1969, San Carlos City (Pangasinan) was a third class city; that the petitioner as city judge received an annual salary of P12,000.00; and that the city mayor of San Carlos City received an annual salary of P13,200.00 which was exactly P100.00 a month more than the salary of the city judge.

SENATOR LAUREL. No. Mr. President, I understand the concern of the distinguished gentleman from Davao. But in this particular amendment prepared by the distinguished lady from La Union, this will not require the council to pay it at P100.00 exactly less than the salary of the mayor. It is just the limit — the maximum — but they may fix it at much less than that. That is why the words "at least" were suggested by the Committee. It need not be exactly just P100.00 less. It may be P500.00 less. SENATOR ALMENDRAS. Your Honor, take for example the cities of Iloilo, Cebu, Bacolod or Manila for that matter. The Mayors are receiving at least P1,500 a month. Now, under the amendment of the lady from La Union, Nueva Ecija and Davao — which has already been accepted by the sponsor — does it mean that if the salary of the city mayor is P1,500, the city judges will receive P1,400? xxx xxx xxx SENATOR ANTONINO — I would like to call his attention to lines 13 to 20. We presented this amendment because it says here: "For the cities of Baguio, Quezon, Pasay and other first class cities, the city judge shall receive one thousand pesos less than that fixed for the district judge". So it will happen, and my attention was called by the gentlemen from Iloilo — that the city judge win be receiving more salary than the city mayor. Hence the amendment, Mr. President. xxx xxx xxx

During the deliberation in the Senate on House Bill No. 17046, which became Republic Act No. 5967, the following discussion took place: SENATOR GANZON — Because with the bill as drafted, I recall that there will be some cities where the city judges will receive salaries higher than those of the mayors. And in all charters, Your Honor, the city judge is considered a department head — theoretically, at least, under the mayor. It would not be fair for the purposes of public administration that a city department head should receive a salary higher than that of the chief executive of the city. SENATOR LAUREL. That point is very well taken, and I would like to congratulate Your Honor.

I conferred with the gentlemen from Iloilo and Batangas, and this was their objection. We have proposed this amendment to at least solve this problem, so that no city judge will be receiving more than the city mayor. So they will be receiving less than what is proposed in this Bill. (Vol. IV, No. 61, Senate Congressional Records, pages 2773-2787. (Emphasis supplied .) 4 It is clear from the deliberation of the Senate that the intention of Congress in enacting Republic Act No. 5967 was that the salary of a city judge should not be higher than the salary of the city mayor. The saving clause "Provided, however, That the salary of a city judge shall be at least P100.00 per month less than that of the city mayor" qualifies the earlier provision which fixes the salary

of city judges for second and third class cities at P18,000.00 per annum. The primary purpose of a proviso is to limit the general language of a statute. When there is irreconcilable repugnancy between the proviso and the body of the statute the former is given precedence over the latter on the ground that it is the latest expression of the intent of the legislature.

MARCIAL F. SAMSON, City Mayor of Caloocan City, THE CITY TREASURER, THE CITY AUDITOR, both of Caloocan City, and HERMOGENES LIWAG, petitioners, vs. THE HONORABLE COURT OF APPEALS, CFI-RIZAL and FELICIANO C. TALENS, respondents.

On January 11, 1972, City Mayor Marcial F. Samson, who succeeded City Mayor Macario Asistio, furnished private respondent herein with the questioned Administrative Order No. 3, which is hereunder reproduced:

Hermenegildo V. Lopez and Amado B. Cresini, Jr. for petitioners.

Assistant Secretary to the Mayor

TO: Mr. Feliciano C. Talens

Caloocan City Inasmuch as the city mayor of San Carlos City (Pangasinan) was receiving an annual salary of P13,200.00, the respondents cannot be compelled to provide for an annual salary of P18,000.00 for the petitioner as city judge of the said city.

Dominador G. Magno for private respondent.

WHEREFORE, the petition for review is hereby dismissed and the decision appealed from is affirmed, without pronouncement as to cost.

The sole issue to be resolved in this case is the legality of Administrative Order No. 3, issued on January 10, 1972, by the then mayor Marcial F. Samson, of Caloocan City, one of the petitioners herein, whereby petitioner mayor summarily terminated the services of the private respondent, Feliciano C. Talens, who held the position of Assistant Secretary to the Mayor, on the ground of "lack and loss of confidence" and appointing in place of the latter Hermogenes Liwag, a co-petitioner in this case. Cited in support of the challenged administrative order is section 5(f) of Republic Act No. 2260, otherwise known as the Civil Service Act of 1959, as amended. The abovecited provision declares the position of secretaries to city mayors non-competitive and this was interpreted by herein petitioner Mayor as to include the position of Assistant Secretary to the Mayor.

SO ORDERED. Teehankee, (Chairman) Makasiar, Muñoz Palma and Guerrero, JJ., concur.

Footnotes 1 Annex "A" of the Petition, Rollo, pp. 21-24. 2 Annex "B" to the Petition, Rollo, pp. 25-30. 3 Annex "C" to the Petition, Rollo, pp. 31-32. 4 Answer, Rollo, pp. 41-42.

ALAMPAY, J.:

In a resolution dated October 29, 1982, this Court granted the motion of the widow of private respondent to substitute the heirs of private respondent Feliciano C. Talens in place of respondent, in view of the latter's death on August 28, 1982.

Pursuant to the provision of Sec. 5 (f) of R.A. No.2260, otherwise known as the Civil Service Act of 1959, as amended, making the positions of Secretaries of City Mayors, among others, non-competitive, and it being the inherent nature of your position to be primarily and highly confidential, you are hereby informed and advised that effective the closing hours of January 10, 1972, your services as Assistant Secretary to the Mayor are hereby TERMINATED for lack and loss of confidence. You are therefore directed to turnover all official documents, papers and all other government records to Atty. Casiano P. Anunciacion, Jr. (SGD.) MARCIAL F. SAMSON City Mayor (Rollo, p. 20) Private respondent acknowledging receipt of said order demurred on the ground Sec. 5(f) of the Civil Service Law, which specifies as non-competitive only the positions of "secretaries of provincial city and municipal boards and councils." He asked that the administrative order be recalled as he was permanently appointed to a classified position in the city government and that in accordance with Section 32 of the Civil hat his position as Assistant Secretary to the Mayor was not covered by Sec. Service Law, he can be removed only for cause and after due process has been observed.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-43182 November 25, 1986

There is no dispute as to the factual antecedents of this case. Private respondent Feliciano C. Talens, a civil service eligible, was appointed on March 16, 1970 by then City Mayor Macario Asistio of Caloocan City, as Assistant Secretary to the Mayor. His appointment was attested to as a permanent one under Section 24(b) of Republic Act No. 2260, as amended by the Commissioner of Civil Service. He performed the duties of Assistant Secretary to the Mayor and even twice received increases in salary.

On January 17, 1972, petitioner Mayor, in a letter-reply sent to private respondent, declined to recall Administrative Order No. 3, reiterating the reasons set forth in the order. Consequently, a petition for certiorari, prohibition, mandamus and quo warranto was filed with the then Court of First Instance of Caloocan City on January 21, 1972 by the private respondent in order to annul the disputed administrative order, to enjoin the petitioner mayor, treasurer and auditor from enforcing the same, and to compel all the said public officials to pay to private

respondent the salaries and emoluments due to him as Assistant Secretary to the Mayor. He also sought the, ouster from the disputed position of Hermogenes Liwag, one of the petitioners herein, who was appointed by Mayor Samson as Assistant Secretary to the Mayor, in place of private respondent. The Court of First Instance ruled in favor of the plaintiff Feliciano C. Talens, by declaring Administrative Order No. 3 null and void, and granting all the aforestated reliefs claimed by Feliciano C. Talens. On Appeal of the siad judgment to the Court of Appeals, the decision of the trial court was affirmed. Hence the petition. According to petitioners, the only issue which this Court has to resolve is the legality of the termination private respondent Talens' services as assistant secretary to the Mayor of Caloocan City (Petitioners' Brief, p. 4). Petitioners' contention is that the termination of private respondent's services is authorized by Section 5(f) of Republic Act No. 2260, as amended by Republic Act No. 6040 which declares the position of Secretaries of City Mayors as belonging to the non-competitive service. Petitioners further aver that termination of the services of private respondent Talens is justified by the fact that the disputed position of Assistant Secretary to the Mayor is inherently and primarily highly confidential in nature.

Section 5 of Republic Act No. 2260, as amended by Republic Act No. 6040 provides that "That non-competitive service shall be composed of positions expressly declared by law to be in the non-competitive service and those which are policy-determining, primarily confidential or highly technical in nature" and continues with an enumeration of specific officers and employees embraced within the scope of non-competitive service. Among those included in the enumeration are heads of departments created in charters of cities and secretaries of provincial governors, city mayors and municipal mayors. Although the position of assistant secretary to the city mayor is not among those expressly declared in Section 5 of Republic Act No. 2260, as amended, to be within the non-competitive service, petitioners, however, argue that an assistant secretary is also a secretary, and thus

comprised within the general term "secretaries" as provided for in Section 5(f). We are not persuaded and find unacceptable such submission of the herein petitioners. As may be noted, the general purpose of the Civil Service Law (Republic Act No. 2260) is "to insure and promote the consitutional mandate regarding appointment only according to merit and fitness, and to provide within the public service a progressive system of personal administration to insure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines." (Section 2, R.A. 2260). As a general rule, position in all branches, subdivisions and instrumentalities of the governmentalities of the government, including those in government owned or controlled corporations, belong to the competitive service. The only exceptions are those expressly declared by law to be in the non-competitive service and those which are policy-determining, primarily confidential or highly technical in nature. (Section 3, R.A. 2260, as amended by R.A. No. 6040). Under the rules of statutory construction, exceptions, as a general rule, should be strictly, but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Where a general rule is established by statute with exceptions, the court will not curtail the former nor add to the latter by implication ... (Francisco, Statutory Construction, p. 304, citing 69 C.J., Section 643, pp. 1092-1093, emphasis supplied). Where a statute enumerates the subjects or things on which it is to operate, it is to be construed as excluding from its effects all those not expressly mentioned (Martin, Statutory Construction, 1979 ed., p. 71 citing Dave's Place vs. Liquor Control Comm., 269 N.W., p, 504). The exceptions provided for in Section 5 of Republic Act No. 2260, as amended should be, therefore, strictly construed. It follows then that on this general governing principle, the position of assistant secretary to the City Mayor of Caloocan City should be considered as belonging to the non-competitive service. The parties are agreed that the nature of the functions attaching to officer position ultimately determines whether

such position is policy-detrermining, primarily confidential or higly technical. It is the nature of the position which finally determines a position to be primarily confidential (Leon A. Pinero, et al. vs. Rufino Hechanova, et al., 18 SCRA 421). Stated differently, it is not the powers and duties exercised and discharged by the Assistant Secretary to the Mayor as may be delegated and assigned by the Mayor that makes the position of Assistant Secretary primarily confidential. While duties possibly involving confidential matters are sometimes handled by the Assistant Secretary to the Mayor, this does not necessarily transform the nature of the position itself as one that is primarily and highly confidential. It should be stressed that the position of Secretary to the Mayor and that of Assistant Secretary to the Mayor are two separate and distinct positions. While both individuals may be called "secretary," nevertheless, one is certainly of a higher category and rank than the other with the added distinction that a Secretary must enjoy the confidence of the Mayor. However, the position of Assistant Secretary being of a lower rank, need not carry the requisites attaching to the primarily confidential position of the actual Secretary to the Mayor. Moreover, if it was the intention of Congress to include the Assistant Secretaries within the purview of Section 5(f) of R.A. No. 2260, as amended, so that Assistant Secretaries are also embraced in the non-competitive service, the law could have been easily worded "secretaries and their assistance." Petitioners also contend that an assistant secretary is also a secretary and thus included in the general term "secretaries as provided for in Section 5(f) in the abovequoted provision. From this premise, the conclusion drawn by petitioners is that the position of Assistant Secretary to the Mayor should be considered as in the non-competitive service and that the tenure of assistant secretary lasts only as long as the Mayor's confidence in him remains. Petitioners' submission is that the assistant secretary is no less a secretary to the mayor. We are not disposed to agree with petitioners. What petitioners fail to consider is that an "assistant secretary," although described as secretary, technically differs in function from the "Secretaries." An "assistant" merely helps, aids or serves in a subordinate capacity to the person who is actually clothed with all the duties and

responsibilities of "secretary." Needless to say, the functions strictly attributable to a "secretary" and which w•uld repose on such person the trust and confidence of the employer, is not automatically vested or transferred to an "assistant secretary," because the latter simply assists or aids the former in the accomplishment of his duties. The rulings of this Court in De Los Santos vs. Mallare, 87 Phil. 289 and Besa vs. PNB, 33 SCRA 330 which have been invoked by the petitioners do not provide support to petitioners' case. The aforestated cases have no parallel to the case at bar. The case of De los Santos vs. Mallare, relates to a quo warranto proceeding, questioning the legality of the appointment of the respondent therein to the office of the City Engineer for the City of Baguio which petitioner De los Santos was then occupying. Said position was in fact declared to be neither primarily confidential, policy-determining, nor highly technical and petitioner therein was adjudged to be entitled to remain in office and the respondent's appointment was declared ineffective. Neither would the other case of Besa vs. PNB find any application to the instant case because the position therein involved was that of Chief Legal Counsel which, by its very nature, was rightfully ruled to be both impressed with a highly technical aspect and confidential character. It can be readily noted that the facts and circumstances in the present case and even the principal issue involved in the case at bar are distinctly different from the cases cited by petitioners. More pertinent and relevant are the pronouncements in Ingles vs. Mutuc, 26 SCRA 177. wherein We stated: . . . . On the contrary, the compensation attached and the designation given thereto suggest the purely, or, at least, mainly clerical nature of their work. The fact that they, at times, handle 'confidential matters' does not suffice to characterize their 'positions' as primarily confidential. Indeed, it is admitted that plaintiffs, likewise, handle 'other routine matters,' and it has not even been shown that their work is, at least, principally confidential. WHEREFORE, the decision appealed from is hereby AFFIRMED but considering the notice of death given to this Court of the death of the herein private respondent Feliciano C. Talens, on August 28, 1982 (Rollo, p. 184), the dispositive portion of the subject decision of the trial court in Civil Case No. C-2308, is hereby MODIFIED, to now read as follows:

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment in favor of Petitioner Feliciano C. Talens, and against the Respondents, and

permanent the preliminary injunction issued on October 9, 1970, restraining respondent Judge from further proceeding with Civil Case No. R-11320. The records of this case establish the following facts:

1) Declaring Administrative Order No. 3, dated January 10, 1972, of Respondent City Mayor Marcial F. Samson, null and void; 2) Ordering Respondents, except private respondent Hermogenes Liwag, to pay Petitioner Feliciano C. Talens, all the salaries and emoluments appurtenant to and due to the latter as Assistant Secretary to the Mayor of Caloocan City, but for a limited period of three years. Without costs.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-32293 January 24, 1974 ROBERTO OCAMPO, petitioner, vs. FERNANDO BUENAVENTURA, JOSE VASQUEZ, ADOLFO BELDEROL, POTENCIANO ADOBAS, JR., and JUDGE MATEO CANONOY, Court of First Instance of Cebu, respondents. Rafael D. de la Victoria for petitioner. Seno, Mendoza and Associates for respondents.

ESGUERRA, J.:1äwphï1.ñët Petition for certiorari and prohibition seeking to annul the order dated June 1, 1970, of respondent Judge Hon. Mateo Canonoy, then of Branch III, Court of First Instance of Cebu, denying petitioner's motion to dismiss and/or suspend the trial of its Civil Case No. R-11320, entitled "Fernando Buenaventura, et al. v. Roberto Ocampo", including the order denying his motion for reconsideration thereof. Petitioner further prays this Court to make

On September 11, 1966, respondents Fernando Buenaventura, Jose Vasquez, Adolfo Belderol and Potenciano Adobes, Jr., all members of the Cebu Police Department, arrested and detained in the City Jail of Cebu, Edgar Ocampo (petitioner's son) and Paul, Jade, Cesar and Julius, all surnamed Ocampo (his nephews), together with one George Namok (a friend of the Ocampo boys), all minors, for an alleged violation of Section 1 of Ordinance No. 345 which amended Ordinance No. 228 fixing curfew hours. This Ordinance penalizes the "wandering, sauntering or loitering of minors in any street, wood or alley." Pursuant to said arrest, the City Fiscal of Cebu filed an information in the city court and the minors were convicted for violation of the said ordinance. On appeal to the Court of First Instance, however, Judge Tantuico, on March 3, 1969, noting the exception under Section 3 of Ordinance 228 which provides: The provisions of Section 1 hereof shall not be applicable to minors attending or participating in, or going home from, purely scholastic functions, commencement exercises, convocations, educational and religious programs or in wholesome and decent assemblage, and during yuletide masses, New Year's eve and Holy Week cults, during the hours mentioned therein. acquitted the accused minors, ruling that since they came from a birthday party considered as a wholesome and decent assemblage, the minors fell within the exception and committed no violation of the ordinance in question. Meanwhile, petitioner Roberto Ocampo on September 19, 1966, filed a complaint with the City Mayor's office charging the respondents policemen with serious misconduct, grave abuse of authority and commission of a felony. On August 8, 1967, the Mayor issued Administrative Order No. 157 exonerating the policemen. On March 17, 1969, a complaint was lodged with the Police Commission (POLCOM) for serious misconduct, abuse of authority and commission of an act constituting a felony, which administrative case is still pending up to the present.

On June 4, 1969, respondents herein filed a complaint for damages against petitioner. On May 22, 1970, petitioner filed a motion to dismiss and/or suspension of the trial of the case on the merits on the following grounds: (1) existence of a prejudicial question and (2) that the action is premature. This motion was denied by respondent Judge in an order dated June 1, 1970. The petitioner's motion for reconsideration thereof having been also denied, the instant petition was filed. In the meantime respondent Fernando Buenaventura died and he was substituted herein by his widow, Guillerma Cosca Buenaventura, and his heirs, Carlos, Cora, Eva Araceli, Fernando, Jr., Rene Victor, Helen Grace, Flora Vicente, and Jose Adolfo, all surnamed "Buenaventura". The main question to be resolved is whether or not the court a quo abused its discretion in denying petitioner's motion to dismiss and/or suspend the trial of the case on the merits. The first ground thereof (prejudicial question) is entirely inapplicable. In accordance with Article 36 of the Civil Code, a prejudicial question must be decided before any criminal prosecution based on the same facts may proceed.<äre||anº•1àw> There is no prejudicial question here since there is no criminal prosecution involved, the petitioner's case before the POLCOM being administrative in nature and the respondents' case before the Court of First Instance of Cebu is a simple civil suit for damages not based on a crime but on alleged harassment by the petitioner in charging them administratively before the City Mayor and before the POLCOM. A careful consideration of the record discloses that the principal issue in the complaint for damages is the alleged malicious filing of the administrative cases by the petitioner against the policemen respondents. The determination of this question is primarily dependent on the outcome of the administrative case before the POLCOM. The respondents' complaint for damages is based on their claim that the administrative case filed against them before the POLCOM is malicious, unfounded and aimed to harass them. The veracity of this allegation is not for us to determine, for if We rule and allow the civil case for damages to proceed on that ground, there is the possibility that the court a quo in deciding said case might declare the respondents victims of harassment and thereby indirectly interfere with the proceedings before the POLCOM. The respondents' case for damages before the lower court is, therefore, premature as it was filed during the pendency of the administrative case against the

respondents before the POLCOM. The possibility cannot be overlooked that the POLCOM may hand down a decision adverse to the respondents, in which case the damage suit will become unfounded and baseless for wanting in cause of action. Of persuasive force is the ruling in William H. Brown vs. Bank Of the Philippine Islands and Santiago Freixas, 101 Phil. 309, 312, where this Court said: ... In effect, plaintiff herein seeks to recover damages upon the ground that the detainer case has been filed, and is being maintained, maliciously and without justification; but this pretense affects the merits of said detainer case. Should final judgment be eventually rendered in that case in favor of the plaintiffs therein, such the one rendered in the municipal court, the validity of the cause of action said lessors against Brown, would thereby be conclusively established, and, necessarily, his contention in the present case would have to be rejected. Similarly, we can, not sustain the theory of Brown in the case at bar, without prejudging the issue in the detainer case, which is still pending: Until final determination of said case, plaintiff herein cannot, and does not, have, therefore, a cause of action — if any, on which we do not express our opinion — against the herein defendants. In short, the lower court has correctly held that the present action is premature and, that, consequently, the complaint herein does not set for a cause of action against the defendants. On the ground that the suit for damages is premature, the trial court, instead of denying petitioner's motion to dismiss and/or suspend the trial on the merits, should have held action thereon in abeyance pending determination of the case before the POLCOM. Respondents likewise plead res judicata to defeat this action, contending that the administrative case before the POLCOM should have been dismissed as it is barred by a prior judgment — that embodied in the City Mayor's Administrative Order No. 157 — exonerating herein respondents policemen. The argument is devoid of merit. A review of the essential requisites of res judicata, 1 viz: (1) it must have been rendered by a court having jurisdiction of the subject matter and the parties; (2) the former judgment must be final; (3) it must be a judgment on the merits; (4) there must be between the 1st and 2nd actions [a] identity of parties; [b] identity of subject matter; and [c] identity of cause of action, exposes the glaring weakness of respondents' contention. On the first requisite

alone, that of jurisdiction, respondents miserably failed to meet the requirements of the rule invoked. The City Mayor of Cebu was without jurisdiction to try, hear and decide administrative cases either under Republic Act No. 557 (An Act Providing For the Suspension or Removal of the Members of the Provincial Guards, City Police and Municipal Police by the Provincial Governor, City Mayor Or Municipal Mayor), or under Republic Act 4864 (An Act Creating the Police Commission, Amending and Revising the Laws Relative to the Local Police System, and For Other Purposes). In Manuel v. De la Fuente, etc., et al., 2 this Court said: "Of course, it should not be understood that the City Mayor, for the purpose of determining whether he should exercise his power of suspension conferred by Republic Act 557, may not conduct his own investigation; but this inquiry cannot replace the investigation that should be conducted under Republic Act No. 557 by the Municipal Board and which should form the basis for final administrative action or decision by said Board appealable to the Commissioner of Civil Service." The Court further said: "... the obvious innovations introduced by Republic Act No. 557 lie in the fact that the Municipal Board had been granted the exclusive power to investigate, with the Mayor being conferred only the power to prefer charges against a member of the city police ...; that the Municipal Board, not the Mayor, decides the case; and that the decision may be appealed to the Commissioner of Civil Service, instead of to the Secretary of the Interior." 3 (Emphasis Ours). The power to investigate and decide administrative cases involving police service and personnel has been transferred to the POLCOM. In the motion to dismiss filed before the Board of Investigators of the Police Commission, 4 respondents alleged that the proceedings in the city mayor's office cannot be attacked, invoking for the purpose Section 26 of the Police Commission Act, to wit: Section 26. Saving Clause.— All pending administrative cases involving police service and personnel shall be absorbed by the Police Commission one hundred days after the publication of the Police Manual containing rules and regulations relative to such matters. The trust of their argument is that the city mayor then had jurisdiction because his decision was rendered on August 8, 1967, while the Police Manual was promulgated later on December 30, 1967. But the ruling in Police Commission v. Hon. Judge Eloy Bello,

et al. 5 where this Court had occasion to elucidate on the "saving clause" of the POLCOM Act, is relevant to the issue and disposes of the respondents' argument. This Court said: Section 26 of the Police Act is, as expressly stated therein, a mere saving clause, and refers solely to the administrative cases involving police service and personnel which were pending at the time of the effectivity of the Act. The Police Commission was required to absorb the said pending cases within 100 days after it shall have published a Police Manual. The said Section 26 may not be interpreted to mean that the Board of Investigators of each city or municipality and the Police Commission could not legally function to carry into effect the purposes of the Act until after the lapse of the said 100 days, because Section 28 provides that '(t)his Act shall take effect upon its approval.' Since the Act was approved on September 8, 1966, it became effective immediately on that date. (Emphasis Ours.) Lastly respondent Judge in his order in question dated June 1, 1970, gave the following reason for denying the motion to dismiss and/or suspension of the trial of the case on the merits: "... considering that the said defendant has already filed his answer, containing special defenses embodying the grounds stated in the motion to dismiss and/or suspension of the trial ..., the said motion to dismiss and/or suspension of trial is hereby denied." The denial is apparently predicated on the prior filing of an answer. As a general rule a motion to dismiss is interposed before the defendant pleads (Section 1, Rule 16, Rules of Court). However, there is no rule or law prohibiting the defendant from filing a motion to dismiss after an answer had been filed. On the contrary, Section 2 of Rule 9, expressly authorizes the filing of such motion at any stage of the proceedings when it is based upon failure to state a cause of action, 6 as in the case at bar where the complaint failed to state a cause of action as alleged by petitioner in his very motion to dismiss and/or suspension of the trial. The respondent Judge therefore, erred in denying said motion. The surrounding circumstance at the time of the filing of said motion warranted suspension of the trial on the merits.

ACCORDINGLY, the order appealed from, dated June 1, 1970, denying the motion to dismiss and/or suspension of the trial of the case on the merits, including the order denying the motion for reconsideration thereof, is hereby set aside. The hearing of Civil Case R-11320 of the Court of First Instance of Cebu, Branch III, shall be held in abeyance pending determination of the administrative case against the respondents before the POLCOM. The Court's writ of preliminary injunction dated October 9, 1970, restraining respondent court from proceeding with the damage suit against petitioner shall stand until the POLCOM decides the said administrative case; if it is decided adversely against respondents, the injunction shall become permanent, while if it is decided in their favor, then this damage suit may proceed to trial and determination on its merits by respondent court. No special pronouncement as to costs. Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.1äwphï1.ñët

Eulogio Nones, Jr. for private respondent.

CRUZ, J.: The sole issue submitted in this case is the validity of the order of respondent National Labor Relations Commission dated October 30, 1992, dismissing the petitioner's appeal from a decision of the Philippine Overseas Employment Administration on the ground of failure to post the required appeal bond. 1 The respondent cited the second paragraph of Article 223 of the Labor Code as amended, providing that: In the case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in an amount equivalent to the monetary award in the judgment appealed from. and Rule VI, Section 6 of the new Rules of Procedure of the NLRC, as amended, reading as follows:

Footnotes 1 Ipekdjian Merchandising Co., Inc. v. Court of Tax Appeals & Commissioner of Internal Revenue, 9 SCRA 72, 75.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 109835 November 22, 1993 JMM PROMOTIONS & MANAGEMENT, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ULPIANO L. DE LOS SANTOS, respondent. Don P. Porciuncula for petitioner.

Sec. 6. Bond — In case the decision of a Labor Arbiter involves a monetary award, an appeal by the employer shall be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission or the Supreme Court in an amount equivalent to the monetary award. The petitioner contends that the NLRC committed grave abuse of discretion in applying these rules to decisions rendered by the POEA. It insists that the appeal bond is not necessary in the case of licensed recruiters for overseas employment because they are already required under Section 4, Rule II, Book II of the POEA Rules not only to pay a license fee of P30,000 but also to post a cash bond of P100,000 and a surety bond of P50,000, thus: Upon approval of the application, the applicant shall pay a license fee of P30,000. It shall also post a cash bond of P100,000 and surety bond of P50,000 from a bonding company acceptable to the Administration and duly accredited by the Insurance Commission. The bonds shall answer for all valid and legal claims arising from violations

of the conditions for the grant and use of the license, and/or accreditation and contracts of employment. The bonds shall likewise guarantee compliance with the provisions of the Code and its implementing rules and regulations relating to recruitment and placement, the Rules of the Administration and relevant issuances of the Department and all liabilities which the Administration may impose. The surety bonds shall include the condition that the notice to the principal is notice to the surety and that any judgment against the principal in connection with matters falling under POEA's jurisdiction shall be binding and conclusive on the surety. The surety bonds shall be co-terminus with the validity period of license. (Emphasis supplied) In addition, the petitioner claims it has placed in escrow the sum of P200,000 with the Philippine National Bank in compliance with Section 17, Rule II, Book II of the same Rule, "to primarily answer for valid and legal claims of recruited workers as a result of recruitment violations or money claims." Required to comment, the Solicitor General sustains the appeal bond requirement but suggest that the rules cited by the NLRC are applicable only to decisions of the Labor Arbiters and not of the POEA. Appeals from decisions of the POEA, he says, are governed by the following provisions of Rule V, Book VII of the POEA Rules: Sec. 5. Requisites for Perfection of Appeal. The appeal shall be filed within the reglementary period as provided in Section 1 of this Rule; shall be under oath with proof of payment of the required appeal fee and the posting of a cash or surety bond as provided in Section 6 of this Rule; shall be accompanied by a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof; the relief prayed for; and a statement of the date when the appellant received the appealed decision and/or award and proof of service on the other party of such appeal. A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal. Sec. 6. Bond. In case the decision of the Administration involves a monetary award, an appeal by the employer shall be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly

accredited by the Commission in an amount equivalent to the monetary award. (Emphasis supplied) The question is, having posted the total bond of P150,000 and placed in escrow the amount of P200,000 as required by the POEA Rules, was the petitioner still required to post an appeal bond to perfect its appeal from a decision of the POEA to the NLRC? It was. The POEA Rules are clear. A reading thereof readily shows that in addition to the cash and surety bonds and the escrow money, an appeal bond in an amount equivalent to the monetary award is required to perfect an appeal from a decision of the POEA. Obviously, the appeal bond is intended to further insure the payment of the monetary award in favor of the employee if it is eventually affirmed on appeal to the NLRC. It is true that the cash and surety bonds and the money placed in escrow are supposed to guarantee the payment of all valid and legal claims against the employer, but these claims are not limited to monetary awards to employees whose contracts of employment have been violated. The POEA can go against these bonds also for violations by the recruiter of the conditions of its license, the provisions of the Labor Code and its implementing rules, E.O. 247 (reorganizing POEA) and the POEA Rules, as well as the settlement of other liabilities the recruiter may incur. As for the escrow agreement, it was presumably intended to provide for a standing fund, as it were, to be used only as a last resort and not to be reduced with the enforcement against it of every claim of recruited workers that may be adjudged against the employer. This amount may not even be enough to cover such claims and, even if it could initially, may eventually be exhausted after satisfying other subsequent claims. As it happens, the decision sought to be appealed grants a monetary award of about P170,000 to the dismissed employee, the herein private respondent. The standby guarantees required by the POEA Rules would be depleted if this award were to be enforced not against the appeal bond but against the bonds and the escrow money, making them inadequate for the satisfaction of the other obligations the recruiter may incur.

Indeed, it is possible for the monetary award in favor of the employee to exceed the amount of P350,000, which is the sum of the bonds and escrow money required of the recruiter. It is true that these standby guarantees are not imposed on local employers, as the petitioner observes, but there is a simple explanation for this distinction. Overseas recruiters are subject to more stringent requirement because of the special risks to which our workers abroad are subjected by their foreign employers, against whom there is usually no direct or effective recourse. The overseas recruiter is solidarily liable with a foreign employer. The bonds and the escrow money are intended to insure more care on the part of the local agent in its choice of the foreign principal to whom our overseas workers are to be sent. It is a principle of legal hermeneutics that in interpreting a statute (or a set of rules as in this case), care should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting provisions. Ut res magis valeat quam pereat. 2 Under the petitioner's interpretation, the appeal bond required by Section 6 of the aforementioned POEA Rule should be disregarded because of the earlier bonds and escrow money it has posted. The petitioner would in effect nullify Section 6 as a superfluity but we do not see any such redundancy; on the contrary, we find that Section 6 complements Section 4 and Section 17. The rule is that a construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and harmonious whole. Accordingly, we hold that in addition to the monetary obligations of the overseas recruiter prescribed in Section 4, Rule II, Book II of the POEA Rules and the escrow agreement under Section 17 of the same Rule, it is necessary to post the appeal bond required under Section 6, Rule V, Book VII of the POEA Rules, as a condition for perfecting an appeal from a decision of the POEA. Every intendment of the law must be interpreted in favor of the working class, conformably to the mandate of the Constitution. By sustaining rather than annulling the appeal bond as a further protection to the claimant

employee, this Court affirms once again its commitment to the interest of labor. WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

Conchita R. Sajonas, who purchased the parcel of land from the Uychocdes, and are now the petitioners in this case. The facts are not disputed, and are hereby reproduced as follows:

Davide and Quiason, JJ., concur. Bellosillo, J, is on leave.

# Footnotes 1 Order issued by NLRC Commissioner Domingo H. Zapanta, Second Division, dated October 30, 1992.

SECOND DIVISION [G. R. No. 102377. July 5, 1996] ALFREDO SAJONAS and CONCHITA SAJONAS, petitioners, vs. THE COURT OF APPEALS, DOMINGO A. PILARES, SHERIFF ROBERTO GARCIA OF QUEZON CITY and REGISTER OF DEEDS OF MARIKINA, respondents. DECISION TORRES, JR., J.: A word or group of words conveys intentions. When used truncatedly, its meaning disappears and breeds conflict. Thus, it is written - “By thy words shalt thou be justified, and by thy words shalt thou be condemned.” (Matthew, 12:37) Construing the new words of a statute separately is the raison d’etre of this appeal. Essentially, the case before us is for cancellation of the inscription of a Notice of Levy on Execution from a certificate of Title covering a parcel of real property. The inscription was caused to be made by the private respondent on Transfer Certificate of Title No. N-79073 of the Register of Deeds of Marikina, issued in the name of the spouses Ernesto B. Uychocde and Lucita Jarin, and was later carried over to and annotated on Transfer Certificate of Title No. N-109417 of the same registry, issued in the name of the spouses Alfredo Sajonas and

“On September 22, 1983, the spouses Ernesto Uychocde and Lucita Jarin agreed to sell a parcel of residential land located in Antipolo, Rizal to the spouses Alfredo Sajonas and Conchita R. Sajonas on installment basis as evidenced by a Contract to Sell dated September 22, 1983. The property was registered in the names of the Uychocde spouses under TCT No. N-79073 of the Register of Deeds of Marikina, Rizal. On August 27, 1984, the Sajonas couple caused the annotation of an adverse claim based on the said Contract to Sell on the title of the subject property, which was inscribed as Entry No. 116017. Upon full payment of the purchase price, the Uychocdes executed a Deed of Sale involving the property in question in favor of the Sajonas couple on September 4, 1984. The deed of absolute sale was registered almost a year after, or on August 28, 1985. Meanwhile, it appears that Domingo Pilares (defendantappellant) filed Civil Case No. Q-28850 for collection of sum of money against Ernesto Uychocde. On June 25, 1980, a Compromise Agreement was entered into by the parties in the said case under which Ernesto Uychocde acknowledged his monetary obligation to Domingo Pilares amounting to P27,800 and agreed to pay the same in two years from June 25, 1980. When Uychocde failed to comply with his undertaking in the compromise agreement, defendant-appellant Pilares moved for the issuance of a writ of execution to enforce the decision based on the compromise agreement, which the court granted in its order dated August 3, 1982. Accordingly, a writ of execution was issued on August 12, 1982 by the CFI of Quezon City where the civil case was pending. Pursuant to the order of execution dated August 3, 1982, a notice of levy on execution was issued on February 12, 1985. On February 12, 1985, defendant sheriff Roberto Garcia of Quezon City presented said notice of levy on execution before the Register of Deeds of Marikina and the same was annotated at the back of TCT No. 79073 as Entry No. 123283. When the deed of absolute sale dated September 4 1984 was registered on August 28, 1985, TCT No. N-79073 was

cancelled and in lieu thereof, TCT No. N-109417 was ssued in the name of the Sajonas couple. The notice of levy on execution annotated by defendant sheriff was carried over to the new title. On October 21, 1985, the Sajonas couple filed a Third Party Claim with the sheriff of Quezon City, hence the auction sale of the subject property did not push through as scheduled. On January 10, 1986, the Sajonas spouses demanded the cancellation of the notice of levy on execution upon defendant-appellant Pilares, through a letter to their lawyer, Atty. Melchor Flores. Despite said demand, defendant-appellant Pilares refused to cause the cancellation of said annotation. In view thereof, plaintiffsappellees filed this complaint dated January 11, 1986 on February 5, 1986.”[1] The Sajonases filed their complaint[2] in the Regional Trial Court of Rizal, Branch 71, against Domingo Pilares, the judgment creditor of the Uychocdes. The relevant portion of the complaint alleges: “7. That at the time the notice of levy was annotated by the defendant, the Uychocde spouses, debtors of the defendant, have already transferred, conveyed and assigned all their title, rights and interests to the plaintiffs and there was no more title, rights or interests therein which the defendant could levy upon; 8. That the annotation of the levy on execution which was carried over to the title of said plaintiffs is illegal and invalid and was made in utter bad faith, in view of the existence of the Adverse Claim annotated by the plaintiffs on the corresponding title of the Uychocde spouses; 9. That a demand was made by the plaintiffs upon the defendant Domingo A. Pilares, to cause the cancellation of the said notice of levy but the latter, without justifiable reason and with the sole purpose of harassing and embarrassing the plaintiffs ignored and refused plaintiffs’ demand; 10. That in view of the neglect, failure and refusal of the defendant to cause the cancellation of the notice of levy on execution, the plaintiffs were compelled to litigate and engage the services of the undersigned counsel, to protect their rights and interests, for which they agreed to pay attorney’s fees in the amount of P10,000 and appearance fees of P500 per day in court.”[3]

Pilares filed his answer with compulsory counterclaim[4] on March 8, 1986, raising special and affirmative defenses, the relevant portions of which are as follows: “10. Plaintiff has no cause of action against herein defendants; 11. Assuming, without however admitting that they filed an adverse claim against the property covered by TCT No. 79073 registered under the name of spouses Ernesto Uychocde on August 27, 1984, the same ceases to have any legal force and effect (30) days thereafter pursuant to Section 70 of P.D. 1529; 12. The Notice of Levy annotated at the back of TCT No. 79073 being effected pursuant to the Writ of Execution dated August 31, 1982, duly issued by the CFI (now RTC) of Quezon City proceeding from a decision rendered in Civil Case No. 28859 in favor of herein defendant against Ernesto Uychocde, is undoubtedly proper and appropriate because the property is registered in the name of the judgment debtor and is not among those exempted from execution; 13. Assuming without admitting that the property subject matter of this case was in fact sold by the registered owner in favor of the herein plaintiffs, the sale is the null and void (sic) and without any legal force and effect because it was done in fraud of a judgment creditor, the defendant Pilares.”[5] Pilares likewise sought moral and exemplary damages in a counterclaim against the Sajonas spouses. The parties appeared at pre-trial proceedings on January 21, 1987,[6] after which, trial on the merits ensued. The trial court rendered its decision on February 15, 1989.[7] It found in favor of the Sajonas couple, and ordered the cancellation of the Notice of Levy from Transfer Certificate of Title No. N-109417.

annotated on the same title by the plaintiffs who earlier bought said property from the Uychocdes. It is a well settled rule in this jurisdiction (Guidote vs. Maravilla, 48 Phil. 442) that actual notice of an adverse claim is equivalent to registration and the subsequent registration of the Notice of Levy could not have any legal effect in any respect on account of prior inscription of the adverse claim annotated on the title of the Uychocdes. xxx xxx

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In view of the foregoing, the Court renders judgment in favor of the plaintiffs and against the defendant Pilares, as follows: 1. Ordering the cancellation of the Notice of Levy on Execution annotated on Transfer Certificate of Title No. N109417. 2. Ordering said defendant to pay the amount of P5,000 as attorney’s fees. 3. Dismissing the Counterclaim interposed by said defendant. Said defendant is likewise ordered to pay the costs.”

The court a quo stated, thus: “After going over the evidence presented by the parties, the court finds that although the title of the subject matter of the Notice of Levy on Execution was still in the name of the Spouses Uychocde when the same was annotated on the said title, an earlier Affidavit of Adverse Claim was

Costs against the plaintiffs-appellees."[10] The Sajonas couple are now before us, on a Petition for Review on Certiorari[11], praying inter alia to set aside the Court of Appeals’ decision, and to reinstate that of the Regional Trial Court.

xxx

On the issue of whether or not plaintiffs are buyers in good faith of the property of the spouses Uychocde even notwithstanding the claim of the defendant that said sale executed by the spouses was made in fraud of creditors, the Court finds that the evidence in this instance is bare of any indication that said plaintiffs as purchasers had notice beforehand of the claim of the defendant over said property or that the same is involved in a litigation between said spouses and the defendant. Good faith is the opposite of fraud and bad faith, and the existence of any bad faith must be established by competent proof.[8] (Cai vs. Henson, 51 Phil 606) xxx

“WHEREFORE, the decision of the lower court dated February 15, 1989 is reversed and set aside and this complaint is dismissed.

Dissatisfied, Pilares appealed to the Court of Appeals[9], assigning errors on the part of the lower court. The appellate court reversed the lower court’s decision, and upheld the annotation of the levy on execution on the certificate of title, thus:

Private respondent filed his Comment[12] on March 5, 1992, after which, the parties were ordered to file their respective Memoranda. Private respondent complied thereto on April 27, 1994[13], while petitioners were able to submit their Memorandum on September 29, 1992.[14] Petitioner assigns the following as errors of the appellate court, to wit: I THE LOWER COURT ERRED IN HOLDING THAT THE RULE ON THE 30-DAY PERIOD FOR ADVERSE CLAIM UNDER SECTION 70 OF P.D. NO. 1529 IS ABSOLUTE INASMUCH AS IT FAILED TO READ OR CONSTRUE THE PROVISION IN ITS ENTIRETY AND TO RECONCILE THE APPARENT INCONSISTENCY WITHIN THE PROVISION IN ORDER TO GIVE EFFECT TO IT AS A WHOLE. II THE LOWER COURT ERRED IN INTERPRETING SECTION 70 OF P.D. NO. 1529 IN SUCH WISE ON THE GROUND THAT IT VIOLATES PETITIONERS’ SUBSTANTIAL RIGHT TO DUE PROCESS. Primarily, we are being asked to ascertain who among the parties in suit has a better right over the property in question. The petitioners derive their claim from the right of ownership arising from a perfected contract of absolute sale between them and the registered owners of the property, such right being attested to by the notice of adverse claim[15] annotated on TCT No. N-79073 as early as August 27, 1984. Private respondent on the other hand, claims the right to levy on the property, and have it sold on execution to satisfy his judgment credit, arising

from Civil Case No. Q-28850[16] against the Uychocdes, from whose title, petitioners derived their own. Concededly, annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property where the registration of such interest or right is not otherwise provided for by the Land Registration Act or Act 496 (now P.D. 1529 or the Property Registration Decree), and serves a warning to third parties dealing with said property that someone is claiming an interest on the same or a better right than that of the registered owner thereof. Such notice is registered by filing a sworn statement with the Register of Deeds of the province where the property is located, setting forth the basis of the claimed right together with other dates pertinent thereto.[17] The registration of an adverse claim is expressly recognized under Section 70 of P.D. No. 1529.* Noting the changes made in the terminology of the provisions of the law, private respondent interpreted this to mean that a Notice of Adverse Claim remains effective only for a period of 30 days from its annotation, and does not automatically lose its force afterwards. Private respondent further maintains that the notice of adverse claim was annotated on August 27, 1984, hence, it will be effective only up to September 26, 1984, after which it will no longer have any binding force and effect pursuant to Section 70 of P.D. No. 1529. Thus, the sale in favor of the petitioners by the Uychocdes was made in order to defraud their creditor (Pilares), as the same was executed subsequent to their having defaulted in the payment of their obligation based on a compromise agreement.[18] The respondent appellate court upheld private respondents’ theory when it ruled: “The above stated conclusion of the lower court is based on the premise that the adverse claim filed by plaintiffsappellees is still effective despite the lapse of 30 days from the date of registration. However, under the provisions of Section 70 of P.D. 1529, an adverse claim shall be effective only for a period of 30 days from the date of its registration. The provision of this Decree is clear and specific. xxx

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It should be noted that the adverse claim provision in Section 110 of the Land Registration Act (Act 496) does not provide for a period of effectivity of the annotation of an adverse claim. P.D. No. 1529, however, now specifically provides for only 30 days. If the intention of the law was for the adverse claim to remain effective until cancelled by petition of the interested party, then the aforecited provision in P.D. No. 1529 stating the period of effectivity would not have been inserted in the law. Since the adverse claim was annotated On August 27, 1984, it was effective only until September 26, 1984. Hence, when the defendant sheriff annotated the notice of levy on execution on February 12, 1985, said adverse claim was already ineffective. It cannot be said that actual or prior knowledge of the existence of the adverse claim on the Uychocdes’ title is equivalent to registration inasmuch as the adverse claim was already ineffective when the notice of levy on execution was annotated. Thus, the act of defendant sheriff in annotating the notice of levy on execution was proper and justified.” The appellate court relied on the rule of statutory construction that Section 70 is specific and unambiguous and hence, needs no interpretation nor construction.[19] Perforce, the appellate court stated, the provision was clear enough to warrant immediate enforcement, and no interpretation was needed to give it force and effect. A fortiori, an adverse claim shall be effective only for a period of thirty (30) days from the date of its registration, after which it shall be without force and effect. Continuing, the court further stated; “. . . clearly, the issue now has been reduced to one of preference- which should be preferred between the notice of levy on execution and the deed of absolute sale. The Deed of Absolute Sale was executed on September 4, 1984, but was registered only on August 28, 1985, while the notice of levy on execution was annotated six (6) months prior to the registration of the sale on February 12, 1985. In the case of Landig vs. U.S. Commercial Co., 89 Phil 638 it was held that where a sale is recorded later than an attachment, although the former is of an earlier date, the sale must give way to the attachment on the ground that the act of registration is the operative act to affect the land. A similar ruling was restated in Campillo vs. Court of Appeals (129 SCRA 513).

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The reason for these rulings may be found in Section 51 of P.D. 1529, otherwise known as the Property Registration Decree, which provides as follows: Section 51. Conveyance and other dealings by the registered owner.- An owner of registered land may convey, mortgage, lease, charge, or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land in so far as third persons are concerned, and in all cases under the Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies.” (Italics supplied by the lower court.) Under the Torrens system, registration is the operative act which gives validity to the transfer or creates a lien upon the land. A person dealing with registered land is not required to go behind the register to determine the condition of the property. He is only charged with notice of the burdens on the property which are noted on the face of the register or certificate of title.[20] Although we have relied on the foregoing rule, in many cases coming before us, the same, however, does not fit in the case at bar. While it is the act of registration which is the operative act which conveys or affects the land insofar as third persons are concerned, it is likewise true, that the subsequent sale of property covered by a Certificate of Title cannot prevail over an adverse claim, duly sworn to and annotated on the certificate of title previous to the sale.[21] While it is true that under the provisions of the Property Registration Decree, deeds of conveyance of property registered under the system, or any interest therein only take effect as a conveyance to bind the land upon its registration, and that a purchaser is not required to explore further than what the Torrens title, upon its face, indicates in quest for any hidden defect or inchoate right

that may subsequently defeat his right thereto, nonetheless, this rule is not absolute. Thus, one who buys from the registered owner need not have to look behind the certificate of title, he is, nevertheless, bound by the liens and encumbrances annotated thereon. One who buys without checking the vendor’s title takes all the risks and losses consequent to such failure.[22] In PNB vs. Court of Appeals, we held that “the subsequent sale of the property to the De Castro spouses cannot prevail over the adverse claim of Perez, which was inscribed on the bank’s certificate of title on October 6, 1958. That should have put said spouses on notice, and they can claim no better legal right over and above that of Perez. The TCT issued in the spouses’ names on July, 1959 also carried the said annotation of adverse claim. Consequently, they are not entitled to any interest on the price they paid for the property.”[23] Then again, in Gardner vs. Court of Appeals, we said that “the statement of respondent court in its resolution of reversal that ‘until the validity of an adverse claim is determined judicially, it cannot be considered a flaw in the vendor’s title’ contradicts the very object of adverse claims. As stated earlier, the annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property, and serves as a notice and warning to third parties dealing with said property that someone is claiming an interest on the same or has a better right than the registered owner thereof. A subsequent sale cannot prevail over the adverse claim which was previously annotated in the certificate of title over the property.”[24] The question may be posed, was the adverse claim inscribed in the Transfer Certificate of Title No. N-109417 still in force when private respondent caused the notice of levy on execution to be registered and annotated in the said title, considering that more than thirty days had already lapsed since it was annotated? This is a decisive factor in the resolution of this instant case. If the adverse claim was still in effect, then respondents are charged with knowledge of pre-existing interest over the subject property, and thus, petitioners are entitled to the cancellation of the notice of levy attached to the certificate of title.

For a definitive answer to this query, we refer to the law itself. Section 110 of Act 496 or the Land Registration Act reads: “Sec. 110. Whoever claims any part or interest in registered lands adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this Act for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, and a reference to the volume and page of the certificate of title of the registered owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimant’s residence, and designate a place at which all notices may be served upon him. The statement shall be entitled to registration as an adverse claim, and the court, upon a petition of any party in interest, shall grant a speedy hearing upon the question of the validity of such adverse claim and shall enter such decree therein as justice and equity may require. If the claim is adjudged to be invalid, the registration shall be cancelled. If in any case, the court after notice and hearing shall find that a claim thus registered was frivolous or vexatious, it may tax the adverse claimant double or treble the costs in its discretion.” The validity of the above-mentioned rules on adverse claims has to be reexamined in the light of the changes introduced by P.D. 1529, which provides: “Sec. 70 Adverse Claim- Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this decree for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of certificate of title of the registered owner, the name of the registered owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimant’s residence, and a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim on the certificate of title. The adverse claim shall be effective for a period of thirty days from the date of registration. After

the lapse of said period, the annotation of adverse claim may be cancelled upon filing of a verified petition therefor by the party in interest: Provided, however, that after cancellation, no second adverse claim based on the same ground shall be registered by the same claimant. Before the lapse of thirty days aforesaid, any party in interest may file a petition in the Court of First Instance where the land is situated for the cancellation of the adverse claim, and the court shall grant a speedy hearing upon the question of the validity of such adverse claim, and shall render judgment as may be just and equitable. If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered cancelled. If, in any case, the court, after notice and hearing shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos, nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, the claimant may withdraw his adverse claim by filing with the Register of Deeds a sworn petition to that effect.” (Italics ours) In construing the law aforesaid, care should be taken that every part thereof be given effect and a construction that could render a provision inoperative should be avoided, and inconsistent provisions should be reconciled whenever possible as parts of a harmonious whole.[25] For taken in solitude, a word or phrase might easily convey a meaning quite different from the one actually intended and evident when a word or phrase is considered with those with which it is associated.[26] In ascertaining the period of effectivity of an inscription of adverse claim, we must read the law in its entirety. Sentence three, paragraph two of Section 70 of P.D. 1529 provides: “The adverse claim shall be effective for a period of thirty days from the date of registration.” At first blush, the provision in question would seem to restrict the effectivity of the adverse claim to thirty days. But the above provision cannot and should not be treated separately, but should be read in relation to the sentence following, which reads: “After the lapse of said period, the annotation of adverse claim may be cancelled upon filing of a verified petition therefor by the party in interest.”

If the rationale of the law was for the adverse claim to ipso facto lose force and effect after the lapse of thirty days, then it would not have been necessary to include the foregoing caveat to clarify and complete the rule. For then, no adverse claim need be cancelled. If it has been automatically terminated by mere lapse of time, the law would not have required the party in interest to do a useless act. A statute’s clauses and phrases must not be taken separately, but in its relation to the statute’s totality. Each statute must, in fact, be construed as to harmonize it with the pre-existing body of laws. Unless clearly repugnant, provisions of statutes must be reconciled. The printed pages of the published Act, its history, origin, and its purposes may be examined by the courts in their construction.[27] An eminent authority on the subject matter states the rule candidly: “A statute is passed as a whole and not in parts or sections, and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. It is not proper to confine its intention to the one section construed. It is always an unsafe way of construing a statute or contract to divide it by a process of etymological dissection, into separate words, and then apply to each, thus separated from the context, some particular meaning to be attached to any word or phrase usually to be ascertained from the context.”[28] Construing the provision as a whole would reconcile the apparent inconsistency between the portions of the law such that the provision on cancellation of adverse claim by verified petition would serve to qualify the provision on the effectivity period. The law, taken together, simply means that the cancellation of the adverse claim is still necessary to render it ineffective, otherwise, the inscription will remain annotated and shall continue as a lien upon the property. For if the adverse claim has already ceased to be effective upon the lapse of said period, its cancellation is no longer necessary and the process of cancellation would be a useless ceremony.[29] It should be noted that the law employs the phrase “may be cancelled”, which obviously indicates, as inherent in its decision making power, that the court may or may not order the cancellation of an adverse claim, notwithstanding

such provision limiting the effectivity of an adverse claim for thirty days from the date of registration. The court cannot be bound by such period as it would be inconsistent with the very authority vested in it. A fortiori, the limitation on the period of effectivity is immaterial in determining the validity or invalidity of an adverse claim which is the principal issue to be decided in the court hearing. It will therefore depend upon the evidence at a proper hearing for the court to determine whether it will order the cancellation of the adverse claim or not.[30] To interpret the effectivity period of the adverse claim as absolute and without qualification limited to thirty days defeats the very purpose for which the statute provides for the remedy of an inscription of adverse claim, as the annotation of an adverse claim is a measure designed to protect the interest of a person over a piece of real property where the registration of such interest or right is not otherwise provided for by the Land Registration Act or Act 496 (now P.D. 1529 or the Property Registration Decree), and serves as a warning to third parties dealing with said property that someone is claiming an interest or the same or a better right than the registered owner thereof.[31] The reason why the law provides for a hearing where the validity of the adverse claim is to be threshed out is to afford the adverse claimant an opportunity to be heard, providing a venue where the propriety of his claimed interest can be established or revoked, all for the purpose of determining at last the existence of any encumbrance on the title arising from such adverse claim. This is in line with the provision immediately following: “Provided, however, that after cancellation, no second adverse claim shall be registered by the same claimant.” Should the adverse claimant fail to sustain his interest in the property, the adverse claimant will be precluded from registering a second adverse claim based on the same ground. It was held that “validity or efficaciousness of the claim may only be determined by the Court upon petition by an interested party, in which event, the Court shall order the immediate hearing thereof and make the proper adjudication as justice and equity may warrant. And it is only when such claim is found unmeritorious that the registration of the adverse claim may be cancelled, thereby

protecting the interest of the adverse claimant and giving notice and warning to third parties.”[32] In sum, the disputed inscription of adverse claim on the Transfer Certificate of Title No. N-79073 was still in effect on February 12, 1985 when Quezon City Sheriff Roberto Garcia annotated the notice of levy on execution thereto. Consequently, he is charged with knowledge that the property sought to be levied upon on execution was encumbered by an interest the same as or better than that of the registered owner thereof. Such notice of levy cannot prevail over the existing adverse claim inscribed on the certificate of title in favor of the petitioners. This can be deduced from the pertinent provision of the Rules of Court, to wit: “Section 16. Effect of levy on execution as to third personsThe levy on execution shall create a lien in favor of the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy, subject to liens or encumbrances then existing.” (Italics supplied) To hold otherwise would be to deprive petitioners of their property, who waited a long time to complete payments on their property, convinced that their interest was amply protected by the inscribed adverse claim. As lucidly observed by the trial court in the challenged decision: “True, the foregoing section provides that an adverse claim shall be effective for a period of thirty days from the date of registration. Does this mean however, that the plaintiffs thereby lost their right over the property in question? Stated in another, did the lapse of the thirty day period automatically nullify the contract to sell between the plaintiffs and the Uychocdes thereby depriving the former of their vested right over the property? It is respectfully submitted that it did not.”[33] As to whether or not the petitioners are buyers in good faith of the subject property, the same should be made to rest on the findings of the trial court. As pointedly observed by the appellate court, “there is no question that plaintiffs-appellees were not aware of the pending case filed by Pilares against Uychocde at the time of the sale of the property by the latter in their favor. This was clearly

elicited from the testimony of Conchita Sajonas, wife of plaintiff, during cross-examination on April 21, 1988”.[34] ATTY. REYES Q - Madam Witness, when Engr. Uychocde and his wife offered to you and your husband the property subject matter of this case, they showed you the owner’s transfer certificate, is it not? A - Yes, sir. Q - That was shown to you the very first time that this lot was offered to you for sale? A - Yes. Q - After you were shown a copy of the title and after you were informed that they are desirous in selling the same, did you and your husband decide to buy the same? A - No, we did not decide right after seeing the title. Of course, we visited... Q - No, you just answer my question. You did not immediately decide? A - Yes. Q - When did you finally decide to buy the same? A - After seeing the site and after verifying from the Register of Deeds in Marikina that it is free from encumbrances, that was the time we decided.

of the private respondent that the sale executed by the spouses was made in fraud of creditors has no basis in fact, there being no evidence that the petitioners had any knowledge or notice of the debt of the Uychocdes in favor of the private respondents, nor of any claim by the latter over the Uychocdes’ properties or that the same was involved in any litigation between said spouses and the private respondent. While it may be stated that good faith is presumed, conversely, bad faith must be established by competent proof by the party alleging the same. Sans such proof, the petitioners are deemed to be purchasers in good faith, and their interest in the subject property must not be disturbed. At any rate, the Land Registration Act (Property Registration Decree) guarantees to every purchaser of registered land in good faith that they can take and hold the same free from any and all prior claims, liens and encumbrances except those set forth on the Certificate of Title and those expressly mentioned in the ACT as having been preserved against it. Otherwise, the efficacy of the conclusiveness of the Certificate of Title which the Torrens system seeks to insure would be futile and nugatory.[38] ACCORDINGLY, the assailed decision of the respondent Court of Appeals dated October 17, 1991 is hereby REVERSED and SET ASIDE. The decision of the Regional Trial Court dated February 15, 1989 finding for the cancellation of the notice of levy on execution from Transfer Certificate of Title No. N-109417 is hereby REINSTATED. The inscription of the notice of levy on execution on TCT No. N-109417 is hereby CANCELLED.

Q - How soon after you were offered this lot did you verify the exact location and the genuineness of the title, as soon after this was offered to you?

Costs against private respondent.

A - I think it’s one week after they were offered.[35]

Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

A purchaser in good faith and for value is one who buys property of another without notice that some other person has a right to or interest in such property and pays a full and fair price for the same, at the time of such purchase, or before he has notice of the claims or interest of some other person in the property.[36] Good faith consists in an honest intention to abstain from taking any unconscientious advantage of another.[37] Thus, the claim

SO ORDERED.

JOHNNY ACOSTA, ARCHIE JOHN TALAUE, RYAN DAPITAN, CHRISTOPHER OARDE, JOSE MARI MODESTO, RICHARD M. VALENCIA, EDBEN TABUCOL, petitioners, vs. COMMISSION ON ELECTIONS, respondents. [G.R. No. 147179. March 26, 2001] MICHELLE D. BETITO, petitioner, vs. CHAIRMAN ALFREDO BENIPAYO, COMMISSIONERS MEHOL SADAIN, RUFINO JAVIER, LUZVIMINDA TANCANGCO, RALPH LANTION, FLORENTINO TUASON and RESURRECCION BORRA, all of the Commission on Election (COMELEC), respondents. DECISION BUENA, J.: At the helm of controversy in the instant consolidated petitions[1] before us is the exercise of a right so indubitably cherished and accorded primacy, if not utmost reverence, no less than by the fundamental law - the right of suffrage. Invoking this right, herein petitioners - representing the youth sector - seek to direct the Commission on Elections (COMELEC) to conduct a special registration before the May 14, 2001 General Elections, of new voters ages 18 to 21. According to petitioners, around four million youth failed to register on or before the December 27, 2000 deadline set by the respondent COMELEC under Republic Act No. 8189.[2] Acting on the clamor of the students and civic leaders, Senator Raul Roco, Chairman of the Committee on Electoral Reforms, Suffrage, and People’s Participation, through a Letter dated January 25, 2001, invited the COMELEC to a public hearing for the purpose of discussing the extension of the registration of voters to accommodate those who were not able to register before the COMELEC deadline.[3]

EN BANC [G.R. No. 147066. March 26, 2001]

Commissioners Luzviminda G. Tancangco and Ralph C. Lantion, together with Consultant Resurreccion Z. Borra (now Commissioner) attended the public hearing called by the Senate Committee headed by Senator Roco, held at the Senate, New GSIS Headquarters Bldg., Pasay City.

AKBAYAN – Youth, SCAP, UCSC, MASP, KOMPIL II – Youth, ALYANSA, KALIPI, PATRICIA O. PICAR, MYLA GAIL Z. TAMONDONG, EMMANUEL E. OMBAO,

On January 29, 2001, Commissioners Tancangco and Lantion submitted Memorandum No. 2001-027 on the Report on the Request for a Two-day Additional

Registration of New Voters Only, excerpts of which are hereto quoted: “Please be advised that the undersigned attended the public hearing called by the Senate Committee on electoral Reforms, Suffrage and People’s Participation presided over by the Hon. Sen. Raul Roco, its Committee Chairman to date at the Senate, New GSIS Headquarters Building, Pasay City. The main agenda item is the request by youth organizations to hold additional two days of registration. Thus, participating students and civic leaders along with Comelec Representatives were in agreement that is legally feasible to have a two-day additional registration of voters to be conducted preferably on February 17 and 18, 2001 nationwide. The deadline for the continuing voters registration under R.A. 8189 is December 27, 2000. “To address the concern that this may open the flood parts for ‘hakot system,’ certain restrictive parameters were discussed. The following guidelines to serve as safeguards against fraudulent applicants:

“The rationale for the additional two-day registration is the renewed political awareness and interest to participate in the political process generated by the recent political events in the country among our youth. Considering that they failed to register on December 27, 2000 deadline, they approved for special registration days. “In view of the foregoing, the Commission en banc has to discuss all aspects regarding this request with directives to the Finance Services Department (FSD) to submit certified available funds for the purpose, and for the Deputy Executive Director for Operations (DEDO) for the estimated costs of additional two days of registration. “The presence of REDs on January 30 can be used partly for consultation on the practical side and logistical requirements of such additional registration days. The meeting will be set at 1:30 p.m. at the Office of ED.”[4]

“3. The applicants shall present valid identification documents, like school records.

Immediately, Commissioner Borra called a consultation meeting among regional heads and representatives and a number of senior staff headed by Executive Director Mamasapunod Aguam. It was the consensus of the group, with the exception of Director Jose Tolentino, Jr. of the ASD, to disapprove the request for additional registration of voters on the ground that Section 8 of R.A. 8189 explicitly provides that no registration shall be conducted during the period starting one hundred twenty (120) days before a regular election and that the Commission has no more time left to accomplish all preelection activities.[5]

“Preparatory to the registration days, the following activities are likewise agreed:

On February 8, 2001, the COMELEC issued Resolution No. 3584, the decretal portion of which reads:

“1. Submission of the list of students and their addresses immediately prior to the actual registration of the applicants;

“Deliberating on the foregoing memoranda, the Commission RESOLVED, as it hereby RESOLVES, to deny the request to conduct a two-day additional registration of new voters on February 17 and 18, 2001.”

“1. The applicants for the registration shall be 25 years of age or less and will be registering for the first time on May 14, 2001; “2. The applicants shall register in their places of residences; and

“2. The Comelec field officers will be given the opportunity to verify the voters enumerator’s list or conduct ocular inspection; “3. Availability of funds for the purpose; and “4. Meetings with student groups to ensure orderly and honest conduct of the registration and drum up interest to register among the new voters.

Commissioners Rufino S. B. Javier and Mehol K. Sadain voted to deny the request while Commissioners Luzviminda Tancangco and Ralph Lantion voted to accommodate the students’ request. With this impasse, the Commission construed its Resolution as having taken effect.

Aggrieved by the denial, petitioners AKBAYAN-Youth, SCAP, UCSC, MASP, KOMPIL II (YOUTH) et al. filed before this Court the instant Petition for Certiorari and Mandamus, docketed as G.R. No. 147066, which seeks to set aside and nullify respondent COMELEC’s Resolution and/or to declare Section 8 of R. A. 8189 unconstitutional insofar as said provision effectively causes the disenfranchisement of petitioners and others similarly situated. Likewise, petitioners pray for the issuance of a writ of mandamus directing respondent COMELEC to conduct a special registration of new voters and to admit for registration petitioners and other similarly situated young Filipinos to qualify them to vote in the May 14, 2001 General Elections. On March 09, 2001, herein petitioner Michelle Betito, a student of the University of the Philippines, likewise filed a Petition for Mandamus, docketed as G.R. No. 147179, praying that this Court direct the COMELEC to provide for another special registration day under the continuing registration provision under the Election Code. On March 13, 2001, this Court resolved to consolidate the two petitions and further required respondents to file their Comment thereon within a non-extendible period expiring at 10:00 A.M. of March 16, 2001. Moreover, this Court resolved to set the consolidated cases for oral arguments on March 16, 2001.[6] On March 16, 2001, the Solicitor General, in its Manifestation and Motion in lieu of Comment, recommended that an additional continuing registration of voters be conducted at the soonest possible time “in order to accommodate that disenfranchised voters for purposes of the May 14, 2001 elections.” In effect, the Court in passing upon the merits of the present petitions, is tasked to resolve a two-pronged issue focusing on respondent COMELEC’s issuance of the assailed Resolution dated February 8, 2001, which Resolution, petitioners, by and large, argue to have undermined their constitutional right to vote on the May 14, 2001 general elections and caused the disenfranchisement of around four (4) million Filipinos of voting age who failed to register before the registration deadline set by the COMELEC. Thus, this Court shall determine:

a) Whether or not respondent COMELEC committed grave abuse of discretion in issuing COMELEC Resolution dated February 8, 2001; b) Whether or not this Court can compel respondent COMELEC, through the extraordinary writ of mandamus, to conduct a special registration of new voters during the period between the COMELEC’s imposed December 27, 2000 deadline and the May 14, 2001 general elections. The petitions are bereft of merit. In a representative democracy such as ours, the right of suffrage, although accorded a prime niche in the hierarchy of rights embodied in the fundamental law, ought to be exercised within the proper bounds and framework of the Constitution and must properly yield to pertinent laws skillfully enacted by the Legislature, which statutes for all intents and purposes, are crafted to effectively insulate such so cherished right from ravishment and preserve the democratic institutions our people have, for so long, guarded against the spoils of opportunism, debauchery and abuse. To be sure, the right of suffrage ardently invoked by herein petitioners, is not at all absolute. Needless to say, the exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing substantive and procedural requirements embodied in our Constitution, statute books and other repositories of law. Thus, as to the substantive aspect, Section 1, Article V of the Constitution provides: “SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE WHEREIN THEY PROPOSE TO VOTE FOR AT LEAST SIX MONTHS IMMEDIATELY PRECEDING THE ELECTIONS. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE.” As to the procedural limitation, the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others, the process of registration. Specifically, a citizen in order to be

qualified to exercise his right to vote, in addition to the minimum requirements set by the fundamental charter, is obliged by law to register, at present, under the provisions of Republic Act No. 8189, otherwise known as the “Voter’s Registration Act of 1996.”

x may file x x x except one hundred (100) days prior to a regular election xxx.”

Stated differently, the act of registration is an indispensable precondition to the right of suffrage. For registration is part and parcel of the right to vote and an indispensable element in the election process. Thus, contrary to petitioners’ argument, registration cannot and should not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the significance of registration as a necessary requisite to the right to vote, the State undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard and regulate the act of voter’s registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even preelection activities could be performed by the duly constituted authorities in a realistic and orderly manner – one which is not indifferent and so far removed from the pressing order of the day and the prevalent circumstances of the times.

“x x x The petition for exclusion is a necessary component to registration since it is a safety mechanism that gives a measure of protection against flying voters, non-qualified registrants, and the like. The prohibitive period, on the other hand serves the purpose of securing the voter’s substantive right to be included in the list of voters.

Viewed broadly, existing legal proscription and pragmatic operational considerations bear great weight in the adjudication of the issues raised in the instant petitions. On the legal score, Section 8, of the R.A. 8189, which provides a system of continuing registration, is explicit, to wit: “SEC. 8. System of Continuing Registration of Voters. – The Personal filing of application of registration of voters shall be conducted daily in the office of the Election Officer during regular office hours. No registration shall, however, be conducted during the period starting one hundred twenty (120) days before a regular election and ninety (90) days before a special election.” (Emphasis Ours) Likewise, Section 35 of R.A. 8189, which among others, speaks of a prohibitive period within which to file a sworn petition for the exclusion of voters from the permanent voter’s list, provides: “SEC. 35. Petition for Exclusion of Voters from the List – Any registered voter, representative of a political party x x

As aptly observed and succinctly worded by respondent COMELEC in its Comment:

“In real-world terms, this means that if a special voter’s registration is conducted, then the prohibitive period for filing petitions for exclusion must likewise be adjusted to a later date. If we do not, then no one can challenge the Voter’s list since we would already be well into the 100-day prohibitive period. Aside from being a flagrant breach of the principles of due process, this would open the registration process to abuse and seriously compromise the integrity of the voter’s list, and consequently, that of the entire election. “x x x It must be remembered that the period serve a vital role in protecting the integrity of the registration process. Without the prohibitive periods, the COMELEC would be deprived of any time to evaluate the evidence on the application. We would be obliged to simply take them at face value. If we compromise on these safety nets, we may very well end up with a voter’s list full of flying voters, overflowing with unqualified registrants, populated with shadows and ghosts x x x. “x x x The short cuts that will have to be adopted in order to fit the entire process of registration within the last 60 days will give rise to haphazard list of voters, some of whom might not even be qualified to vote. x x x the very possibility that we shall be conducting elections on the basis of an inaccurate list is enough to cast a cloud of doubt over the results of the polls. If that happens, the unforgiving public will disown the results of the elections, regardless of who wins, and regardless of how many courts validate our own results. x x x” Perhaps undaunted by such scenario, petitioners invoke the so called “standby” powers or “residual” powers of the COMELEC, as provided under the relevant provisions of

Section 29, Republic Act No. 6646[7] and adopted verbatim in Section 28 of Republic Act No. 8436,[8] thus: “SEC. 28. Designation of other Dates for Certain Preelection Acts - If it should no longer be possible to observe the periods and dates prescribed by law for certain preelection acts, the Commission shall fix other periods and dates in order to ensure accomplishments of the activities so voters shall not be deprived of their right to suffrage.” On this matter, the act of registration is concededly, by its very nature, a pre-election act. Under Section 3(a) of R.A. 8189, registration, as a process, has its own specific definition, precise meaning and coverage, thus: “a) Registration refers to the act of accomplishing and filing of a sworn application for registration by a qualified voter before the election officer of the city or municipality wherein he resides and including the same in the book of registered voters upon approval by the Election Registration Board;” At this point, it bears emphasis that the provisions of Section 29 of R.A. 8436 invoked by herein petitioners and Section 8 of R.A. 8189 volunteered by respondent COMELEC, far from contradicting each other, actually share some common ground. True enough, both provisions, although at first glance may seem to be at war in relation to the other, are in a more circumspect perusal, necessarily capable of being harmonized and reconciled. Rudimentary is the principle in legal hermeneutics that changes made by the legislature in the form of amendments to a statute should be given effect, together with other parts of the amended act. It is not to be presumed that the legislature, in making such changes, was indulging in mere semantic exercise. There must be some purpose in making them, which should be ascertained and given effect.[9] Similarly, every new statute should be construed in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together, if they can be done by any fair and reasonable interpretation.[10] Interpretare et concordare legibus est optimus interpretandi, which means that the best method of interpretation is that which makes laws consistent with other laws. Accordingly, courts of justice, when confronted with apparently conflicting statutes,

should endeavor to reconcile them instead of declaring outright the invalidity of one against the other. Courts should harmonize them, if this is possible, because they are equally the handiwork of the same legislature.[11] In light of the foregoing doctrine, we hold that Section 8 of R.A. 8189 applies in the present case, for the purpose of upholding the assailed COMELEC Resolution and denying the instant petitions, considering that the aforesaid law explicitly provides that no registration shall be conducted during the period starting one hundred twenty (120) days before a regular election. Corollarily, it is specious for herein petitioners to argue that respondent COMELEC may validly and legally conduct a two-day special registration, through the expedient of the letter of Section 28 of R.A. 8436. To this end, the provisions of Section 28, R.A. 8436 would come into play in cases where the pre-election acts are susceptible of performance within the available period prior to election day. In more categorical language, Section 28 of R.A. 8436 is, to our mind, anchored on the sound premise that these certain “pre-election acts” are still capable of being reasonably performed vis-a-vis the remaining period before the date of election and the conduct of other related pre-election activities required under the law. In its Comment, respondent COMELEC—which is the constitutional body tasked by no less than the fundamental charter (Sec. 2, par. 3, Article IX-C of the Constitution) to decide, except those involving the right to vote, all questions affecting elections, including registration of voters—painstakingly and thoroughly emphasized the “operational impossibility”[12] of conducting a special registration, which in its on language, “can no longer be accomplished within the time left to (us) the Commission.”[13] Hence: “xxx

xxx

xxx.

Indicate the total number of established precincts and the number of registered voters per precincts in a city or municipality. Without the final Project of Precincts, we cannot even determine the proper allocation of official ballots, election returns and other election forms and paraphernalia. More succinctly said, without the Project of Precincts, we won’t know how many forms to print and so we’re liable to come up short. “21) More Importantly, without a completed Project of Precincts, it will be impossible to complete the rest of the tasks that must be accomplished prior to the elections. “22) Second, the Board of Elections Inspectors must be constituted on or before the 4th of March. In addition, the list of the members of the BEI — including the precinct where they are assigned and the barangay where that precinct is located - must be furnished by the Election Officer to all the candidates and political candidates not later than the 26th of March. “23) Third, the Book of Voters, which contains the approved Voter Registration Records of registered voters in particular precinct, must be inspected, verified, and sealed beginning March 30, until April 15. “24) Fourth, the Computerized Voters’ List must be finalized and printed out of use on election day; and finally “25) Fifth, the preparation, bidding, printing, and distribution of the Voters Information Sheet must be completed on or before April 15. “26) With this rigorous schedule of pre-election activities, the Comelec will have roughly a month that will act as a buffer against any number of unforeseen occurrences that might delay the elections. This is the logic and the wisdom behind setting the 120-day prohibitive period. After all, preparing for an election is no easy task.

“19) In any case, even without the legal obstacles, the last 60 days will not be a walk in the park for the Comelec. Allow us to outline what the Commission has yet to do, and the time to do it in:

“27) To hold special registrations now would, aside from being Illegal, whittle that approximately 30-day margin away to nothing.

“20) First we have to complete the Project of Precincts by the 19th of March. The Projects of Precincts

“28) When we say registration of voters, we do not - contrary to popular opinion - refer only to the act of

going to the Election Officer and writing our names down. Registration is, In fact, a long process that takes about three weeks to complete not even counting how long it would take to prepare for the registration in the first place. “29) In order to concretize, the senior Staff of the Comelec, the other Commissioners, prepared a time-table in order to see exactly how the superimposition of special registration would affect the on-going preparation for the May 14 elections. “30) We assumed for the sake of argument that we were to hold the special registration on April 16 and 17. These are not arbitrary numbers, by the way it takes in account the fact that we only have about 800,000 Voters Registration Forms available, as against an estimated 4.5 million potential registrants, and it would take about 14 days — If we were to declare special registrations today — to print up the difference and to verify these accountable forms. After printing and verification, the forms would have to be packed and shipped - roughly taking up a further two and a half weeks. Only then can we get on with registration. “31) The first step in registration is, of course, filling the application for registration with the Election Officer. The application, according to Section 17 of R.A. 8189, is then set for hearing, with notice of that hearing being posted in the city or municipal bulletin board for at least one week prior. Thus, if we held registrations on the 16th and the 17th the posting requirement would be completed by the 24th. Considering that time must be allowed for the filling of oppositions, the earliest that the Election Registration Board can be convened for hearing would be the May 1st and 2nd. “32) Assuming — and this is a big assumption — that there are nit challenges to the applicant’s right to register, the Election registration Board can immediately rule on the Applicant’s registration, and post notices of its action by the 2nd until the 7th of May. By the 10th, copies of the notice of the action taken by the Board will have already been furnished to the applicants and the heads of registered political parties. “33) Only at this point can our Election Officers once again focus on the business of getting ready for the elections. Once the results of the special registration are finalized, they can be encoded and a new Computerized

Voters’ List generated - at the earliest, by May 11, after which the new CVL would be posted. Incidentally, it we were to follow the letter of the law strictly, a May 11 posting date for the new CVL would be improper since the R.A. 8189 provides that the CVL be posted at least 90 days before the election. “34) Assuming optimistically that we can then finish the inspection, verification, and sealing of the Book if Voters by May 15, we will already have overshot the May 14, election date, and still not have finished our election preparations. “35) After this point, we could have to prepare the allocation of Official Ballots, Election Returns, and other Non-Accountable Forms and Supplies to be used for the new registrants. Once the allocation is ready, the contracts would be awarded, the various forms printed, delivered, verified, and finally shipped out to the different municipalities. All told, this process would take approximately 26 days, from the 15th of May until June 10. “36) Only then can we truly say that we are ready to hold the elections. “xxx

xxx

xxx.”[14]

It is an accepted doctrine in administrative law that the determination of administrative agency as to the operation, implementation and application of a law would be accorded great weight considering that these specialized government bodies are, by their nature and functions, in the best position to know what they can possibly do or not do, under prevailing circumstances. Beyond this, it is likewise well-settled that the law does not require that the impossible be done.[15] The law obliges no one to perform an impossibility, expressed in the maxim, nemo tenetur ad impossible.[16] In other words, there is no obligation to do an impossible thing. Impossibilium nulla obligato est. Hence, a statute may not be so construed as to require compliance with what it prescribes cannot, at the time, be legally, coincidentally[17], it must be presumed that the legislature did not at all intend an interpretation or application of a law which is far removed from the realm of the possible. Truly, in the interpretation of statutes, the interpretation to be given must be such that it is in accordance with logic, common sense, reasonableness and practicality. Thus,

we are of the considered view that the “stand-by power” of the respondent COMELEC under Section 28 of R.A. 8436, presupposes the possibility of its being exercised or availed of, and not otherwise. Further, petitioners’ bare allegation that they were disenfranchised when respondent COMELEC pegged the registration deadline on December 27, 2000 instead of January 13, 2001 – the day before the period before the May 14, 2001 regular elections commences – is, to our mind, not sufficient. On this matter, there is no allegation in the two consolidated petitions and the records are bereft of any showing that anyone of herein petitioners has filed an application to be registered as a voter which was denied by the COMELEC nor filed a complaint before the respondent COMELEC alleging that he or she proceeded to the Office of the Election Officer to register between the period starting from December 28, 2000 to January 13, 2001, and that he or she was disallowed or barred by respondent COMELEC from filing his application for registration. While it may be true that respondent COMELEC set the registration deadline on December 27, 2000, this Court is of the Firm view that petitioners were not totally denied the opportunity to avail of the continuing registration under R.A. 8189. Stated in a different manner, the petitioners in the instant case are not without fault or blame. They admit in their petition[18] that they failed to register, for whatever reason, within the period of registration and came to this Court and invoked its protective mantle not realizing, so to speak, the speck in their eyes. Impuris minibus nemo accedat curiam. Let no one come to court with unclean hands. In a similar vein, well-entrenched is the rule in our jurisdiction that the law aids the vigilant and not those who slumber on their rights. Vigilantis sed non dormientibus jura in re subveniunt. Applying the foregoing, this court is of the firm view that respondent COMELEC did not commit an abuse of discretion, much less be adjudged to have committed the same in some patent, whimsical and arbitrary manner, in issuing Resolution No. 3584 which, in respondent’s own terms, resolved “to deny the request to conduct a two-day additional registration of new voters on February 17 and 18, 2001.” On this particular matter, grave abuse of discretion implies a capricious and whimsical exercise of judgment as is

equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of laws.[19]

registration of voters. For the determination of whether or not the conduct of a special registration of voters is feasible, possible or practical within the remaining period before the actual date of election, involves the exercise of discretion and thus, cannot be controlled by mandamus.

Under these circumstances, we rule that the COMELEC, in denying the request of petitioners to hold a special registration, acted within the bounds and confines of the applicable law on the matter --Section 8 of RA 8189. In issuing the assailed Resolution, respondent COMELEC simply performed its constitutional task to enforce and administer all laws and regulations relative to the conduct of an election,[20] inter alia, questions relating to the registration of voters; evidently, respondent COMELEC merely exercised a prerogative that chiefly pertains to it and one which squarely falls within the proper sphere of its constitutionally-mandated powers. Hence, whatever action respondent takes in the exercise of its wide latitude of discretion, specifically on matters involving voters’ registration, pertains to the wisdom rather than the legality of the act. Accordingly, in the absence of clear showing of grave abuse of power of discretion on the part of respondent COMELEC, this Court may not validly conduct an incursion and meddle with affairs exclusively within the province of respondent COMELEC– a body accorded by no less than the fundamental law with independence.

In Bayan vs. Executive Secretary Zamora and related cases,[22] we enunciated that the Court’s function, as sanctioned by Article VIII, Section 1, is “merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing...(of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power... It has no power to look into what it thinks is apparent error.”[23]

As to petitioners’ prayer for the issuance of the writ of mandamus, we hold that this Court cannot, in view of the very nature of such extraordinary writ, issue the same without transgressing the time-honored principles in this jurisdiction. As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary one; mandamus will not issue to control the exercise of discretion of a public officer where the law imposes upon him the duty to exercise his judgment in reference to any manner in which he is required to act, because it is his judgment that is to be exercised and not that of the court.[21] Considering the circumstances where the writ of mandamus lies and the peculiarities of the present case, we are of the firm belief that petitioners failed to establish, to the satisfaction of this Court, that they are entitled to the issuance of this extraordinary writ so as to effectively compel respondent COMELEC to conduct a special

Finally, the Court likewise takes judicial notice of the fact that the President has issued Proclamation No. 15 calling Congress to a Special Session on March 19, 2001, to allow the conduct of Special Registration of new voters. House Bill No. 12930 has been filed before the Lower House, which bill seeks to amend R.A. 8189 as to the 120day prohibitive period provided for under said law. Similarly, Senate Bill No. 2276[24] was filed before the Senate, with the same intention to amend the aforesaid law and, in effect, allow the conduct of special registration before the May 14, 2001 General Elections. This Court views the foregoing factual circumstances as a clear intimation on the part of both the executive and legislative departments that a legal obstacle indeed stands in the way of the conduct by the Commission on Elections of a special registration before the May 14, 2001 General Elections. WHEREFORE, premises considered, the instant petitions for certiorari and mandamus are hereby DENIED. SO ORDERED. Ynares-Santiago, De Leon, and Sandoval-Gutierrez, JJ., concur. Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, and Gonzaga-Reyes, JJ., joined Mr. Justice Pardo in his dissenting opinion. Bellosillo, Melo, and Mendoza, JJ., concur in the majority opinion as well as in the Separate Opinion of J. Kapunan. Puno, J., on official business abroad. Kapunan, J., see concurring opinion. Pardo, J., see dissenting opinion.

[1] G.R. No. 147066 and G.R. No. 147179. [2] AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS, ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING PROCEDURE THEREOF AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR. [3] Letter of Senator Raul Roco. [4] G.R. No. 147066 Rollo, p. 24. [5] See Resolution No. 3584. [6] Resolution dated March 13, 2001. [7] AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER PURPOSES. [8] AN ACT AUTHORIZING THE COMELEC TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES. [9] Agpalo, Statutory Construction, pp. 265-266, Fourth Edition, 1998; Tan Kim Kee vs. Court of Appeals, 7 SCRA 670 (1963); Collector of Internal Revenue, 7 SCRA 872 (1963). [10] Agpalo, Ibid., p. 271; City of Naga vs. Agna, 71 SCRA 176 (1976). [11] Ibid., p. 271; Gordon vs. Veridaino II, 167 SCRA 51 (1988). [12] Comment of respondent COMELEC, p. 14. [13] Ibid., p. 9. [14] G.R. No. 147179 Rollo, pp. 98-102. [15] Reyes vs. Republic, 104 Phil. 889 (1958). [16] Province of Cebu vs. Intermediate Appellate Court, 147 SCRA 447 (1987).

[17] Agpalo, Statutory Construction, pp. 157-158, Fourth Edition, 1998. [18] Paragraphs 4 and 5 in G.R. No. 147066 and Paragraph 9 in G.R. No. 147179. [19] Cuison vs. Court of Appeals, 289 SCRA 159 (1998); Jardine vs. NLRC, G.R. No. 119268, February 23, 2000 citing Arroyo vs. de Venecia, 277 SCRA 268 (1997).

This is a petition for review on certiorari under Rule 45 of the Decision of the Regional Trial Court of Antipolo, Rizal, Branch 71 dated August 26, 1997.[1] The antecedent facts are as follows: Petitioners Fidel M. Bañares II, Lilia C. Valeriano, Edgar M. Bañares, Emilia Gatchialian and Fidel Besarino were the accused in sixteen criminal cases for estafa[2] filed by the private respondents. The cases were assigned to the Municipal Trial Court of Antipolo, Rizal, Branch II. Ncm

[20] Article IX-C, Section 2. [21] Sy Ha vs. Gulang 7 SCRA 797 [1963]; Aprueba vs. Ganzon, 18 SCRA 8 [1966]. [22] G.R. No. 138570, promulgated on October 10, 2000. [23] Co vs. Electoral Tribunal of the House of Representative, 199 SCRA 692 (1991); Llamas vs. Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42 SCRA 480-481 (1971). [24] An Act Providing for the Conduct of Special Registration of Voters before the May 14, 2001, National and Local Elections.

After the petitioners were arraigned and entered their plea of not guilty,[3] they filed a Motion to Dismiss the aforementioned cases on the ground that the filing of the same was premature, in view of the failure of the parties to undergo conciliation proceedings before the Lupong Tagapamayapa of Barangay Dalig, Antipolo, Rizal.[4] Petitioners averred that since they lived in the same barangay as private respondents, and the amount involved in each of the cases did not exceed Two Hundred Pesos (P200.00), the said cases were required under Section 412 in relation to Section 408 of the Local Government Code of 1991[5] and Section 18 of the 1991 Revised Rule on Summary Procedure.[6] to be referred to the Lupong Tagapamayapa or Pangkat ng Tagapagkasundo of the barangay concerned for conciliation proceedings before being filed in court.[7]

FIRST DIVISION [G.R. No. 132624. March 13, 2000] FIDEL M. BAÑARES II, LILIA C. VALERIANO, EDGAR M. BAÑARES, EMILIA GATCHALIAN and FIDEL BESARINO, petitioners, vs. ELIZABETH BALISING, ROGER ALGER, MERLINDA CAPARIC, EUSTAQUIO R. TEJONES, ANDREA SAYAM, JENNY ISLA, WILMA ROGATERO, PABLITO ALEGRIA, ROLANDO CANON, EDITHA ESTORES, EDMUNDO DOROYA, TERESITA GUION, DANNY ANDARAYAN, LOURDES CADAY, ROGELIO MANO, EVANGELINE CABILTES AND PUBLIC PROSECUTOR OF RIZAL, Antipolo, Rizal, respondents.

The municipal trial court issued an Order, dated July 17, 1995[8] denying petitioners’ Motion to Dismiss on the ground that they failed to seasonably invoke the nonreferral of the cases to the Lupong Tagapamayapa or Pangkat ng Tagapagkasundo. It added that such failure to invoke non-referral of the case to the Lupon amounted to a waiver by petitioners of the right to use the said ground as basis for dismissing the cases.[9] Petitioners filed a motion for reconsideration of the aforementioned Order, claiming that nowhere in the Revised Rules of Court is it stated that the ground of prematurity shall be deemed waived if not raised seasonably in a motion to dismiss.[10]

DECISION KAPUNAN, J.:

On November 13, 1995, the municipal trial court issued an Order dismissing the sixteen criminal cases against petitioners without prejudice, pursuant to Section 18 of the 1991 Revised Rule on Summary Procedure.[11] Scncm

More than two months later, on February 26, 1996, private respondents through counsel, filed a Motion to Revive the abovementioned criminal cases against petitioners, stating that the requirement of referral to the Lupon for conciliation had already been complied with.[12] Attached to the motion was a Certification dated February 13, 1996 from the Lupong Tagapamayapa of Barangay Dalig, Antipolo, Rizal[13] stating that the parties appeared before said body regarding the charges of estafa filed by private respondents against petitioners but they failed to reach an amicable settlement with respect thereto. Petitioners filed a Comment and Opposition to Motion to Revive claiming that the Order of the municipal trial court, dated November 13, 1995 dismissing the cases had long become final and executory; hence, private respondents should have re-filed the cases instead of filing a motion to revive.[14] On March 18, 1996, the municipal trial court issued an Order[15] granting private respondents’ Motion to Revive. Petitioners filed a Motion for Reconsideration[16] of the aforementioned Order which was denied by the municipal trial court.[17] Petitioners thereafter filed with the Regional Trial Court of Antipolo, Rizal, a petition for certiorari, injunction and prohibition assailing the Order dated March 18, 1996 of the municipal trial court. They claimed that the said Order dated November 13, 1995 dismissing the criminal cases against them had long become final and executory considering that the prosecution did not file any motion for reconsideration of said Order.[18] In response thereto, private respondents filed their Comment,[19] arguing that the motion to revive the said cases was in accordance with law, particularly Section 18 of the Revised Rule on Summary Procedure.[20] After the parties submitted additional pleadings to support their respective contentions,[21] the Regional Trial Court rendered the assailed Decision denying the petition for certiorari, injunction and prohibition, stating as follows: Evaluating the allegations contained in the petition and respondents’ comment thereto, the Court regrets that it cannot agree with the petitioner(sic). As shown by the records the 16 criminal cases were dismissed without prejudice at the instance of the petitioners for failure of the private respondent to comply with the mandatory requirement of PD 1508. Since the dismissal of said cases

was without prejudice, the Court honestly believes that the questioned order has not attained finality at all. WHEREFORE, premises considered, the petition is hereby DENIED for lack of merit. Sdaamiso SO ORDERED.[22] The Regional Trial Court, likewise, denied petitioners’ Motion for Reconsideration[23] of the aforementioned Decision for lack of merit.[24] Hence, this Petition. Petitioners raise the following questions of law: 1. Whether or not an order dismissing a case or action without prejudice may attain finality if not appealed within the reglementary period, as in the present case; 2. Whether or not the action or case that had been dismissed without prejudice may be revived by motion after the order of dismissal had become final and executory; and 3. Whether or not the court that had originally acquired jurisdiction of the case that was dismissed without prejudice still has jurisdiction to act on the motion to revive after the order of dismissal has become final and executory.[25] Petitioners contend that an order dismissing a case or action without prejudice may attain finality if not appealed within the reglementary period. Hence, if no motion to revive the case is filed within the reglementary fifteen-day period within which to appeal or to file a motion for reconsideration of the court’s order, the order of dismissal becomes final and the case may only be revived by the filing of a new complaint or information.[26] Petitioners further argue that after the order of dismissal of a case attains finality, the court which issued the same loses jurisdiction thereon and, thus, does not have the authority to act on any motion of the parties with respect to said case.[27] On the other hand, private respondents submit that cases covered by the 1991 Revised Rule on Summary Procedure such as the criminal cases against petitioners are not covered by the rule regarding finality of decisions and

orders under the Revised Rules of Court. They insist that cases dismissed without prejudice for non-compliance with the requirement of conciliation before the Lupong Tagapamayapa or Pangkat ng Tagapagkasundo of the barangay concerned may be revived summarily by the filing of a motion to revive regardless of the number of days which has lapsed after the dismissal of the case.[28] Petitioners’ contentions are meritorious. Sdaad A "final order" issued by a court has been defined as one which disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court.[29] As distinguished therefrom, an "interlocutory order" is one which does not dispose of a case completely, but leaves something more to be adjudicated upon.[30] This Court has previously held that an order dismissing a case without prejudice is a final order[31] if no motion for reconsideration or appeal therefrom is timely filed. In Olympia International vs. Court of Appeals,[32] we stated thus: The dismissal without prejudice of a complaint does not however mean that said dismissal order was any less final. Such order of dismissal is complete in all details, and though without prejudice, nonetheless finally disposed of the matter. It was not merely an interlocutory order but a final disposition of the complaint. The law grants an aggrieved party a period of fifteen (15) days from his receipt of the court’s decision or order disposing of the action or proceeding to appeal or move to reconsider the same.[33] After the lapse of the fifteen-day period, an order becomes final and executory and is beyond the power or jurisdiction of the court which rendered it to further amend or revoke.[34] A final judgment or order cannot be modified in any respect, even if the modification sought is for the purpose of correcting an erroneous conclusion by the court which rendered the same.[35] After the order of dismissal of a case without prejudice has become final, and therefore becomes outside the court’s

power to amend and modify, a party wishes to reinstate the case has no other remedy but to file a new complaint. This was explained in Ortigas & Company Limited Partnership vs. Velasco,[36] where we ruled thus: Scsdaad The dismissal of the case, and the lapse of the reglementary period to reconsider or set aside the dismissal, effectively operated to remove the case from the Court’s docket. Even assuming the dismissal to be without prejudice, the case could no longer be reinstated or "revived" by mere motion in the original docketed action, but only by the filing of another complaint accompanied, of course, by the payment of the corresponding filing fees prescribed by law. xxx [S]ince theoretically every final disposition of an action does not attain finality until after fifteen (15) days therefrom, and consequently within that time the action still remains within the control of the Court, the plaintiff may move and set aside his notice of dismissal and revive his action before that period lapses. But after dismissal has become final after the lapse of the fifteen-day reglementary period, the only way by which the action may be resuscitated or "revived" is by the institution of a subsequent action through the filing of another complaint and the payment of fees prescribed by law. This is so because upon attainment of finality of the dismissal through the lapse of said reglementary period, the Court loses jurisdiction and control over it and can no longer make a disposition in respect thereof inconsistent with such dismissal.[37] (Emphasis supplied.) Contrary to private respondents’ claim, the foregoing rule applies not only to civil cases but to criminal cases as well. In Jaca vs. Blanco,[38] the Court defined a provisional dismissal of a criminal case as a dismissal without prejudice to the reinstatement thereof before the order of dismissal becomes final or to the subsequent filing of a new information for the offense."[39] Supremax Thus, the Regional Trial Court erred when it denied the petition for certiorari, injunction and prohibition and ruled that the order of the municipal trial court, dated November 13, 1995 dismissing without prejudice the criminal cases against petitioners had not attained finality and hence, could be reinstated by the mere filing of a motion to revive.

Equally erroneous is private respondents’ contention that the rules regarding finality of judgments under the Revised Rules of Court[40] do not apply to cases covered by the 1991 Revised Rule on Summary Procedure. Private respondents claim that Section 18 of the 1991 Revised Rule on Summary Procedure allows the revival of cases which were dismissed for failure to submit the same to conciliation at the barangay level, as required under Section 412 in relation to Section 408 of the Local Government Code. The said provision states: Referral to Lupon. – Cases requiring referral to the Lupon for conciliation under the provisions of Presidential Decree No. 1508[41] where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after such requirement shall have been complied with. This provision shall not apply to criminal cases where the accused was arrested without a warrant.[42] There is nothing in the aforecited provision which supports private respondents’ view. Section 18 merely states that when a case covered by the 1991 Revised Rule on Summary Procedure is dismissed without prejudice for non-referral of the issues to the Lupon, the same may be revived only after the dispute subject of the dismissed case is submitted to barangay conciliation as required under the Local Government Code. There is no declaration to the effect that said case may be revived by mere motion even after the fifteen-day period within which to appeal or to file a motion for reconsideration has lapsed. Moreover, the 1991 Revised Rule on Summary Procedure expressly provides that the Rules of Court applies suppletorily to cases covered by the former: Sec. 22. Applicability of the regular rules. – The regular procedure prescribed in the Rules of Court shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not inconsistent therewith.[43] A careful examination of Section 18 in relation to Section 22 of the 1991 Revised Rule of Summary Procedure and Rule 40, Section 2 in relation to Rule 13, Sections 9 and 10,[44] and Rule 36, Section 2[45] of the 1997 Rules of Civil Procedure, as amended, leads to no other conclusion than that the rules regarding finality of judgments also apply to cases covered by the rules on summary

procedure. Nothing in Section 18 of the 1991 Revised Rule on Summary Procedure conflicts with the prevailing rule that a judgment or order which is not appealed or made subject of a motion for reconsideration within the prescribed fifteen-day period attains finality.[46] Hence, the principle expressed in the maxim interpretare et concordare legibus est optimus interpretandi, or that every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence [47] applies in interpreting both sets of Rules. The rationale behind the doctrine of finality of judgments and orders, likewise, supports our conclusion that said doctrine applies to cases covered by the 1991 Revised Rule on Summary Procedure: The doctrine of finality of judgments is grounded on fundamental considerations of public policy and sound practice that at the risk of occasional error, the judgments of the courts must become final at some definite date set by law.[48] Misjuris It is but logical to infer that the foregoing principle also applies to cases subject to summary procedure especially since the objective of the Rule governing the same is precisely to settle these cases expeditiously.[49] To construe Section 18 thereof as allowing the revival of dismissed cases by mere motion even after the lapse of the period for appealing the same would prevent the courts from settling justiciable controversies with finality,[50] thereby undermining the stability of our judicial system. The Court also finds it necessary to correct the mistaken impression of petitioners and the municipal trial court that the non-referral of a case for barangay conciliation as required under the Local Government Code of 1991[51] may be raised in a motion to dismiss even after the accused has been arraigned. It is well-settled that the non-referral of a case for barangay conciliation when so required under the law[52] is not jurisdictional in nature[53] and may therefore be deemed waived if not raised seasonably in a motion to dismiss.[54] The Court notes that although petitioners could have invoked the ground of prematurity of the causes of action against them due to the failure to submit the dispute to Lupon prior to the filing of the cases as soon as they received the complaints against them, petitioners raised the said ground only after their arraignment.

However, while the trial court committed an error in dismissing the criminal cases against petitioners on the ground that the same were not referred to the Lupon prior to the filing thereof in court although said ground was raised by them belatedly, the said order may no longer be revoked at present considering that the same had long become final and executory, and as earlier stated, may no longer be annulled[55] by the Municipal Trial Court, nor by the Regional Trial Court or this Court.[56] Scjuris WHEREFORE, the petition is hereby GRANTED. The Decision of the Regional Trial Court of Antipolo, Rizal, Branch II dated August 26, 1997 and its Order dated January 29, 1998 in SCA Case No. 96-4092 are hereby SET ASIDE and Criminal Cases Nos. 94-0829, 94-0830, 94-0831, 94-0832, 94-0833, 94-0836, 94-0838, 94-0839, 94-0841, 94-0843, 94-0847, 94-0848, 94-0850, 94-0854 and 94-0058 of the Municipal Trial Court of Antipolo are ordered DISMISSED, without prejudice, pursuant to Sec. 18 of the 1991 Revised Rule on Summary Procedure. SO ORDERED. KAPUNAN Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur. Pardo, J., on official business abroad.

[1] SCA Case No. 96-4092. [2] Docketed as Criminal Case Nos. 94-0829, 94-0830, 940831, 94-0832, 94-0833, 94-0836, 94-0838, 94-0839, 940841, 94-0843, 94-0847, 94-0848, 94-0850, 94-0854 and 94-0058 in the Municipal Trial Court of Antipolo Rizal, Branch II. [3] Rollo, p. 91. [4] Motion to Dismiss, Id., at. 22-24. [5] Sections 412 and 408 of the Local Government Code of 1991 state thus: Section 412.......Conciliation.-- (a) Pre-condition to Filing of Complaint in Court. -- No complaint, petition, action or proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon

secretary or pangkat secretary as attested to by the lupon or pangkat chairman or unless the settlement has been repudiated by the parties thereto. FIRST DIVISION [G.R. No. 137904. October 19, 2001] PURIFICACION M. VDA. DE URBANO, PEDRO DE CASTRO, AURELIO I. ARRIENDA, ARNEL U. ARRIENDA, ALBERT U. ARRIENDA, ALICE A. PEDRON and MARILYN C. BILOG, petitioners, vs. GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), FELICIANO BELMONTE, JR., ZACARIAS BELTRAN, JR., MARCIAL SECOQUIAN and CRISPINA DELA CRUZ, respondents. DECISION PUNO, J.: The petitioners in the case at bar have been fighting tooth and nail for a roof above their heads. They have fought long and hard but still not enough, for while as a succor institution the respondent GSIS can bend back to accommodate the needs of a member, it can only bend as far as it can also assure the solvency of its funds for the common good of its members. This is a petition for review on certiorari to annul and set aside the Court of Appeals' October 30, 1998 decision[1] and March 4, 1999 resolution affirming the decision of the Regional Trial Court of Quezon City, Branch 102, dismissing petitioner's complaint for annulment of contract, reconveyance and damages. The facts, gathered mainly from the stipulation and admissions of the parties,[2] are as follows: In 1971, petitioners mortgaged their 200-square meter property in Quezon City to the respondent GSIS to secure a housing loan of P47,000.00. As petitioners failed to pay their loan when it fell due, GSIS foreclosed the mortgage on October 28, 1983. With a bid of P154,896.00, GSIS emerged as the highest bidder in the public auction of the property. In a bid to redeem their property, petitioner Arnel Arrienda wrote on September 26, 1984 to the Acquired Assets Department (AAD) of the GSIS signifying the petitioners' intention to redeem their property. Two days after or on September 28, petitioner vda. de Urbano wrote the GSIS Board of Trustees (the "Board") to inform them of her

desire to redeem the subject property and for advice on the procedure for redemption.[3] GSIS responded on October 16, 1984 advising her to pay the total redemption price of P154,896.00 on or before the expiry date of redemption on November 18, 1984 in full and in cash, failing which the property would be offered for sale through public bidding. On October 29, 1984, petitioner vda. de Urbano requested for more time to redeem the subject property. In a letter dated January 10, 1985, AAD Manager Marcial Secoquian informed petitioners that the Board adopted Resolution No. 929 on November 16, 1984 approving the "sale of the subject property to petitioner Purificacion Urbano for the sum of P174,572.62, provided that the aforesaid price shall be paid in CASH, within sixty (60) days from notice of this resolution, failing which, the property shall be sold thru public bidding with the fair market value of the property as the minimum bid price." Unable to find financing to repurchase the subject property, petitioners again wrote to the Board through AAD Manager Secoquian on January 18, 1985 requesting for re-mortgage through repurchase of the subject property.[4] On February 27, 1985, AAD Manager Secoquian wrote to petitioners that "the granting of real estate/housing loan to the GSIS members is not within the province and competence of this department, hence your request for a re-mortgage of said property cannot be acted upon."[5] On June 19, 1985, petitioner vda. de Urbano wrote to the Board requesting approval to file a loan of P240,000.00 with the GSIS Real Estate Department to repurchase their foreclosed property. On June 20, 1985, then Deputy Minister and Vice Governor Ismael A. Mathay, Jr. interceded for the petitioners and wrote to the Board requesting for a more liberal arrangement to enable petitioners to repurchase their property. In response to the letter, the Board adopted Resolution No. 593 on July 6, 1985 granting petitioner Aurelio Arrienda "60 days from notice within which to purchase the subject property for P174,572.62 payable in CASH. Should Mr. Arrienda fail to pay the same within the time frame mentioned, the property shall be sold at public auction without need of any further action by the Board." Petitioners were notified of this Resolution in a letter dated August 2, 1985.[6]

On August 21, 1985, months after the expiration of the redemption period on November 18, 1984, GSIS consolidated its title over the property, leading to the cancellation of TCT No. 167532 covering the property and the issuance of TCT No. 33418 in favor of GSIS.[7] On September 5, 1985, respondent Crispina dela Cruz commenced negotiations with respondent GSIS for her purchase of the petitioners' foreclosed property for P250,000.00 spot cash. Unable to raise the entire amount of the property but still persistent to reacquire it, petitioner Arnel Arrienda wrote to the Board on October 4, 1985, offering a downpayment of P50,000.00 to purchase their property, the balance of P124,572.62 to be paid within five years in equal monthly installments. He enclosed a cashier's check in the amount of P10,000.00 as earnest money. On October 30, 1985, AAD Manager Secoquian informed petitioners that the Board adopted Resolution No. 881 on October 10, 1985 declining their offer to purchase the subject property under their proposed terms and conditions.[8] On November 11, 1985, petitioner Arnel Arrienda again wrote to the Board requesting reconsideration of Resolution No. 881 and abeyance of the public sale or negotiation of the subject property.[9] Secoquian wrote petitioner Arnel Arrienda on December 26, 1985 informing him that the Board adopted Resolution No. 1022 dated December 12, 1985 denying his request for reconsideration of Resolution No. 881 and returning petitioners' cashier's check of P10,000.00.[10] The Board also directed the "Operating Unit Concerned to inform Ms. Cristina Cruz (sic) that her offer to purchase the abovementioned property shall only be entertained by the GSIS Board if accompanied by a Cashier's or Manager's check in the amount equivalent to 10% of her offer, forfeitable in favor of the System in case she fails to comply with the terms and conditions proposed by the System."[11] With no let up on their efforts to repurchase their property, petitioner Aurelio Arrienda wrote to the Board on January 6, 1986 requesting a restructuring or a liberal arrangement to purchase back the subject property. This was denied by the Board in Resolution No. 36 dated January 16, 1986. Meantime, GSIS continued negotiating with private respondent dela Cruz. On January 28, 1986, Secoquian

recommended to the Board the approval of the sale to dela Cruz. Not having lost their resolve and pinning their hopes on the new Board of Trustees under the new administration of then President Corazon Aquino, petitioner vda. de Urbano wrote on January 20, 1987 to Atty. Regalado Resurreccion, Head of the Operation Pabahay of the Government Investments and Loan Department of the GSIS, requesting reconsideration of GSIS' position with regard to the subject property.[12] As indicated in a GSIS internal commmunication, Officer-in-Charge Rosales of the Residential Loans Department initially handled the request, then endorsed it to Atty. Resurreccion on January 19, 1987 and enclosed in his endorsement petitioner vda. de Urbano's June 19, 1985 letter applying for a loan of P240,000.00 to repurchase the subject property. The matter was, in turn, endorsed by Atty. Resurreccion to AAD Manager Secoquian on January 20, 1987 as "the Operation Pabahay Task Force cannot undertake the processing of this kind of loan unless a certificate of award or sale is issued in favor of the applicant." Atty. Resurreccion likewise noted in his endorsement that the applicant for the loan was already 81 years old and no longer a member of the GSIS. AAD Manager Secoquian returned said application to the head of the Operation Pabahay on March 3, 1987, enumerating the Board resolutions relative to the subject property and stating that "pending action by the Board on the offer of CRISPINA VDA. DELA CRUZ to purchase the subject property for the amount of P250,000.00, the request of Mrs. URBANO cannot as yet be given due consideration."[13] On August 11, 1987, GSIS approved under Resolution No. 342 the "sale of the subject property to respondent dela Cruz for a consideration of P267,000.00 CASH." The following day, respondent AAD & GRADE Acting VicePresident Zacarias C. Beltran, Jr. wrote to petitioners Zenaida/Aurelio Arrienda calling their attention to the absence of a formal lease contract over the subject property where petitioners continued to stay. He also demanded payment of rental arrears on the property for 45 months as of July 31, 1987 amounting to P58,500.00[14] and invited petitioners Zenaida and Aurelio Arrienda to the GSIS Office to make arrangements for the payment of the rental arrears and to execute the corresponding lease contract. The letter did not mention the negotiation with private respondent dela Cruz.

On September 1, 1987, GSIS wrote to private respondent dela Cruz that the Board, through Board Resolution No. 342, approved the sale of the subject property payable in full and in cash for P267,000.00, representing its current market value, within thirty days from notice of the resolution. On January 20, 1988, a Deed of Absolute Sale over the subject property was executed between GSIS and private respondent de la Cruz. The following day, TCT No. 374292 covering the subject property was issued to dela Cruz. Meantime, having learned about the sale of the subject property to dela Cruz, petitioner Aurelio Arrienda wrote to the GSIS on September 27, 1987 protesting the said sale and requesting its reconsideration and recall. Respondent Beltran, then already the Vice President of the AAMG & GRADE Department of the GSIS, responded on October 27, 1987 informing him of Resolution No. 430, dated October 13, 1987, which reiterated the approval of the sale of the subject property to respondent dela Cruz as previously approved under Board Resolution No. 342. On November 4, 1987, petitioner Aurelio Arrienda again wrote to the GSIS protesting the sale of the property to respondent dela Cruz and requesting for a formal investigation of the circumstances leading to the sale. The GSIS' Department of Investigation manager wrote to petitioner Aurelio Arrienda on January 11, 1988 requesting petitioner Aurelio Arrienda to "come for conference" with Atty. Gatpatan of the said department regarding his complaint on the subject property. Not satisfied with the investigation of GSIS, petitioners filed the instant case before the Regional Trial Court of Quezon City, Branch 102. The lower court dismissed the complaint. This was affirmed by the Court of Appeals. Hence, this petition for review with the following assignment of errors: "The Honorable Court of Appeals (Former Eleventh Division) erred as follows: 1. In not finding that the alleged negotiated sale of petitioners' foreclosed property was consummated by respondent GSIS in favor of respondent Crispina Dela Cruz, a non-GSIS member, in violation of its own Board Resolution Nos. 929 and 593, existing laws and applicable jurisprudence.

2. In not finding that respondent GSIS had consummated the alleged negotiated sale in favor of respondent Dela Cruz notwithstanding the failure of the latter to comply with the terms and conditions of the alleged sale. 3. In not finding that respondent GSIS had committed dishonesty and/or perjury by falsely alleging in their Answer to the Complaint that it acted on the request of petitioner Purificacion Vda. De Urbano to re-acquire her former property through the GSIS Operation Pabahay by transmitting said request to the Acquired Assets Department. 4. In not finding that the case of Valmonte vs. Belmonte, Jr., 170 SCRA 256 (1989), is applicable to the case at bench. 5. In not finding that Section 35 of P.D. 1146, does not provide any prerogative to the GSIS Board of Trustees to authorize and/or approve the alleged negotiated sale in favor of a non-GSIS member or an outsider without complying with pertinent existing laws and established jurisprudence. 6. In not finding that the appealed Decision of the lower court did not faithfully comply with Sec. 1, Rule 36 of the Rules of Court. 7. In not finding that the case of Maharlika Publishing Corporation vs. Tagle, 142 SCRA 553 (1986), is a precedent to the case at bench. 8. In not giving due consideration to the newly discovered evidence of the petitioners (Annexes "A" and "B", Brief for the Appellants) which showed that respondent Crispina Dela Cruz had already withdrawn her offer to buy subject property and the same was accepted by respondent GSIS." The petition is devoid of merit. The smorgasbord of issues raised by the petitioner can be reduced to three jugular issues, viz: I. Do petitioners have a right to repurchase the subject property? II. Does the GSIS have a duty to dispose of the subject property through public bidding?

III. Was GSIS in bad faith in dealing with petitioners?

of the Fund administered by the GSIS during these times of grave economic crisis affecting the country; xxx

I. We first deal with the issue of repurchase. At the time petitioners offered to repurchase the subject property from GSIS, the charter of the GSIS then in force was P.D. 1146 or the Revised Government Insurance Act of 1977 (the "Act"). Sections 35 and 36 of the Act provide in relevant part as follows: "Sec. 35. Powers and Functions of the System. The System shall have the following powers and functions specified in this Act and the usual general corporate powers: xxx (d) To acquire, utilize or dispose of, in any manner recognized by law, real or personal properties in the Philippines or elsewhere necessary to carry out the purposes of this Act." (emphasis supplied) "Sec. 36. The Board of Trustees; Its Composition; Tenure and Compensation.- The Corporate powers and functions of the System shall be vested in, and exercised by the Board of Trustees. . ." P.D. 1146 was amended by P.D. 1981 dated July 19, 1985 as follows: "WHEREAS, the GSIS Board of Trustees should be vested with powers and authority necessary or proper to ensure a fair and profitable return of the investments of the funds administered by the GSIS, and, for this purpose, the GSIS Board of Trustees should be given full and sole responsibility of controlling and monitoring insurance investments operations and fixing and determining the terms and conditions of financial accomodations to its members, including the power to compromise or release any claim or settled liability to the GSIS; WHEREAS, it has thus become necessary to amend Presidential Decree No. 1146 to clarify some of its provisions to make it more responsive to the needs of the members of the GSIS and to assure the actuarial solvency

Sec. 7. There is hereby incorporated a new paragraph after the third paragraph of Section 36, which shall read as follows: "The Board of Trustees has the following powers and functions, among others: (a) To formulate the policies, guidelines and programs to effectively carry out the purposes and objectives of this Act; xxx (f) The provisions of any law to the contrary notwithstanding, to compromise or release, in whole or in part, any claim or settled liability to the System, regardless of the amount involved, under such terms and conditions as it may impose for the best interest of the System; . . ." (emphasis supplied) The above laws grant the GSIS Board of Trustees (the "Board") the power, nay, the responsibility, to exercise discretion in "determining the terms and conditions of financial accomodations to its members" with the dual purpose of making the GSIS "more responsive to the needs of the members of the GSIS" and assuring "the actuarial solvency of the Fund administered by the GSIS." As mandated by P.D. 1146, this discretion may be exercised in acquiring, utilizing or disposing of, in any manner recognized by law, "real or personal properties in the Philippines or elsewhere necessary to carry out the purposes of this Act." Contrary to petitioners' position, there is no restriction or qualification that the GSIS should dispose of its real properties in favor only of GSIS members. Based on these laws, the Board could exercise its discretion on whether to accept or reject petitioners' offer to repurchase the subject property taking into account the dual purpose enunciated in the "whereas clause" of P.D. 1981, i.e., making the GSIS "more responsive to the needs of the members of the GSIS" and assuring "the actuarial solvency of the Fund administered by the GSIS." Jurisprudence also supports the Board's exercise of discretion in case of repurchase, viz:

"The right to redeem becomes functus officio on the date of its expiry, and its exercise after the period is not really one of redemption but a repurchase. Distinction must be made because redemption is by force of law; the purchaser at public auction is bound to accept redemption. Repurchase however of foreclosed property, after redemption period, imposes no such obligation. After expiry, the purchaser may or may not re-sell the property but no law will compel him to do so. And, he is not bound by the bid price; it is entirely within his discretion to set a higher price, for after all, the property already belongs to him as owner."[15] (emphasis supplied) In response to petitioners' plea to repurchase the subject property after the redemption period had expired, the Board approved its sale to petitioners by virtue of Resolution No. 929 dated November 16, 1984, provided that the payment of its purchase price of P174,572.62 shall be made in cash within sixty days from notice of the resolution, otherwise the property would be sold through public bidding. After petitioners' failure to purchase the property within the prescribed period, the Board, through Resolution No. 593 dated July 6, 1985, granted petitioners another sixty days within which to purchase the property for the same amount and under the same terms stated in Resolution No. 929. Counting from the expiry date of redemption on November 18, 1984, the petitioners were given about ten months within which to repurchase the subject property for the same price of P174,572.62. In view of petitioners' repeated failure to repurchase coupled with their failure to pay rent on the subject property, the Board denied through Resolution No. 1022 dated December 12, 1985 petitioners' subsequent request to repurchase the subject property. The minutes of the Board Meeting on December 12, 1985 show the comment of the AAD Manager, viz: "From the aforementioned background of the Case where the family of Mr. Arrienda has repeatedly made different and/or conflicting offers/requests, it seems that their family apparently lack(sic) the capacity to reacquire their former property, and are obviously delaying our final disposition of the property. Moreover, since the expiry date of the redemption period, Mr. Arrienda has not made any rental payments on the property."[16] The Board's denial of petitioners' request to purchase the subject property was based not on whim or caprice, but on

a factual assessment of the financial capacity of the petitioners to make good their repeated offers to purchase the subject property. Respondent GSIS struck a balance between being "responsive to the needs of the members of the GSIS" and assuring "the actuarial solvency of the Fund administered by the GSIS", and tilted the scale in favor of the latter. Under the then GSIS charter or P.D. 1146, this was well within the powers of the Board. Petitioners, in addition, fault their failure to meet the GSIS' terms for repurchase on the GSIS' inaction on their January 20, 1987 request to re-acquire the subject property through the GSIS Operation Pabahay. They allege that instead of acting upon this letter, what was acted upon was their letter of June 19, 1985. The evidence on record, however, shows that Officer-in-Charge Rosales of the Residential Loans Department endorsed the matter raised by petitioners in their January 20, 1987 letter to Atty. Resurreccion, Head of the Operation Pabahay. While the endorsement shows that enclosed therewith was petitioner vda. de Urbano's June 19, 1985 letter applying for a loan of P240,000.00 to repurchase the subject property, the endorsement itself stated that the loan for reacquisition of the subject property was being made under the "current Operations Pabahay." Thereafter, the matter was endorsed by Atty. Resurreccion to the Manager of the AAD on January 20, 1987 as "the Operation Pabahay Task Force cannot undertake the processing of this kind of loan unless a certificate of award or sale is issued in favor of the applicant." AAD Manager Secoquian returned said application to the head of the Operation Pabahay on March 3, 1987, enumerating the Board resolutions relative to the subject property and stating that "pending action by the Board on the offer of CRISPINA VDA. DELA CRUZ to purchase the subject property for the amount of P250,000.00, the request of Mrs. URBANO cannot as yet be given due consideration."[17] In sum, insofar as the petitioners' request for repurchase is concerned, they are not entitled to repurchase as a matter of right. The Board exercised its discretion in accordance with law in denying their requests and the GSIS cannot be faulted for petitioners' failure to repurchase as it acted upon petitioners' application under the Operation Pabahay. The sale of the subject property to respondent dela Cruz cannot therefore be annulled on the basis of petitioners' alleged right to repurchase.

Neither can petitioners invoke Maharlika Publishing Corporation v. Tagle,[18] as a precedent insofar as the Board's exercise of its discretion to grant loan restructuring is concerned.[19] Petitioners point out that in that case, the Supreme Court found that the GSIS "created an agreement of binding nature" with the owner of the foreclosed property when the owners proposed to repurchase the property and the then GSIS General Manager Roman Cruz, Jr. ordered that the public bidding of the property be stopped and the repurchase be discussed with him a day before the scheduled date of the bidding. The case is not in point. In the Maharlika case, this Court ruled that GSIS was deemed to have accepted the offer to repurchase when it ordered the bidding to be stopped pending discussion of the repurchase with the owner of the property. In the case at bar, however, the GSIS granted petitioners two opportunities under Resolutions No. 929 dated November 16, 1984 and Resolution No. 593 dated July 6, 1985 to repurchase the subject property, but petitioners failed to comply with the GSIS' terms of repurchase. Subsequently, when petitioners offered to repurchase the subject property under their own terms of payment, the GSIS under Resolution No. 881 dated October 10, 1985 denied the same. Unlike in the Maharlika case therefore, it cannot be said that the GSIS "created an agreement (to repurchase) of binding nature" with the herein petitioners. II. We come now to the second issue of whether the GSIS should dispose of the subject property through public bidding. Petitioners aver that Section 79 of P.D. 1445[20] and Commission on Audit (COA) Circular No. 86-264 mandate the GSIS to dispose of its assets, such as the subject property, primarily through public bidding and only upon its failure, through a negotiated sale. On the other hand, GSIS contends that Section 79 of P.D. 1445 does not apply to the case at bar as this provision covers unserviceable government property and not acquired assets like the subject property. Nor does the sale of the subject property come within the purview of COA Circular No. 86-264 as it is a "sale of merchandise/inventory held for sale in the regular course of business" which is carved out as an exception under the circular. GSIS posits that this interpretation of COA

Circular No. 86-264 was made clear by the subsequent COA Circular No. 89-296. We uphold the position of the GSIS. Section 79 of P.D. 1445 does not apply to the case at bar as this provision applies only to unserviceable property, viz: "SECTION 79. Destruction or sale of unserviceable property. - When government property has become unserviceable for any cause, or is no longer needed, it shall, upon application of the officer accountable therefor, be inspected by the head of the agency or his duly authorized representative in the presence of the auditor concerned and, if found to be valueless or unsalable, it may be destroyed in their presence. If found to be valuable, it may be sold at public auction to the highest bidder under the supervision of the proper committee on award or similar body in the presence of the auditor concerned or other duly authorized representative of the Commission, after advertising by printed notice in the Official Gazette, or for not less than three consecutive days in any newspaper of general circulation, or where the value of the property does not warrant the expense of publication, by notices posted for a like period in at least three public places in the locality where the property is to be sold. In the event that the public auction fails, the property may be sold at a private sale at such price as may be fixed by the same committee or body concerned and approved by the Commission." That the subject property is not "unserviceable" or useless is rather obvious. Petitioners are precisely fighting tooth and nail to claim the subject property as they are still using it as their family home. It still serves its purpose well. Neither is it "no longer needed" by the GSIS. As a financial institution extending housing loans, the disposition of foreclosed properties - such as the subject property - at a price beneficial to the GSIS helps maintain the actuarial solvency of the GSIS fund. It cannot therefore be said that the subject property is "no longer needed" by the GSIS. We turn now to the COA circulars cited by the parties. COA Circular No. 86-264 dated October 16, 1986, the "General guidelines on the divestment or disposal of assets of government-owned and/or controlled

corporations, and their subsidiaries" provides in relevant part, viz: "1.0 Rationale and Scope These guidelines shall govern the general procedures on the divestment or disposal of assets of government-owned and/or controlled corporations and their subsidiaries, which shall be supplemented by specific procedures as may be adopted by the corporation concerned, provided they do not contravene existing laws and the provisions of this circular. xxx 3.0

Modes of Disposal

3.1. Public Auction As a rule, public auction or bidding shall be the primary mode of disposal of assets.

national, local or corporate, including the subsidiaries thereof but shall not apply to the disposal of merchandise or inventory held for sale in the regular course of business nor to the disposal by government financial institutions of foreclosed assets or collaterals acquired in the regular course of business and not transferred to the National Government under Proclamation No. 50. . . xxx V.

MODES OF DISPOSAL/DIVESTMENT:

This Commission recognizes the following modes of disposal/divestment of assets and property of national government agencies, local government units and government-owned and controlled corporations and their subsidiaries, aside from such modes as may be provided by law. 1.

Public Auction

3.2. Sale thru Negotiation

Conformably to existing state policy, the divestment or disposal of government property as contemplated herein shall be undertaken primarily thru public auction. . .

Disposal thru this mode, which is a sale without public bidding, shall be resorted to only in case of failure of public auction.

2.

xxx 5.0 Exceptions and Effectivity This Circular shall not apply to sales of merchandise/inventory held for sale in the regular course of business." (emphasis supplied) On January 27, 1989, COA Circular No. 89-296 was issued providing also for "Audit Guidelines on the Divestment or Disposal of Property and Other Assets of National Government Agencies and Instrumentalities, Local Government Units and Government-Owned or Controlled Corporations and their Subsidiaries." It provides for the disposition of government assets, viz: "III.

DEFINITION AND SCOPE:

These audit guidelines shall be observed and adhered to in the divestment or disposal of property and other assets of all government entities/instrumentalities, whether

Sale Thru Negotiation

For justifiable reasons and as demanded by the exigencies of the service, disposal thru negotiated sale may be resorted to and undertaken by the proper committee or body in the agency or entity concerned taking into consideration the following factors: . . ." (emphasis supplied) When the Board approved the sale of the subject property to private respondent dela Cruz through Resolution No. 342 in August 1987 and Resolution No. 430 in October of the same year, and when the Deed of Sale was executed between GSIS and private respondent dela Cruz in January 1988, Circular No. 86-264 was then in force. The pivotal question is whether the subject property is covered by COA Circular 86-264 or falls under the exception in its paragraph 5 above. In construing this exception, we derive insight from the exceptions provided under the subsequent COA Circular 89-296, viz: "III.

These audit guidelines shall be observed and adhered to in the divestment or disposal of property and other assets of all government entities/instrumentalities, whether national, local or corporate, including the subsidiaries thereof but shall not apply to the disposal of merchandise or inventory held for sale in the regular course of business nor to the disposal by government financial institutions of foreclosed assets or collaterals acquired in the regular course of business and not transferred to the National Government under Proclamation No. 50. . ."

DEFINITION AND SCOPE:

We refer to Circular No. 89-296 in interpreting Circular No. 86-264 in adherence to the rule in statutory construction, viz: "The correct rule of interpretation is, that if divers (sic) statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law. (Doug., 30; 2 Term Rep., 387, 586; 4 Maule & Selw., 210). If a thing contained in a subsequent statute, be within the reason of a former statute, it shall be taken to be within the meaning of that statute. (Lord Raym., 1028); and if it can be gathered from a subsequent statute in pari materia, what meaning the Legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. (Morris v. Mellin, 6 Barn. & Cress., 454; 7 Barn. & Cress. 99)"[21] In Riggs et al. v. Palmer et al.,[22] it was also ruled: "It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers. The writers of the laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is called 'rational interpretation;' and Rutherford, in his Institutes, (page 420,) says: 'Where we make use of rational interpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes we extend or enlarge his meaning so as to take in more, than his words express.' Such a construction ought to be put upon a statute as will best answer the intention which the makers had in view, for qui haret in

litera, haret in cortice. In Bac. Abr. 'Statutes,' 1.5; Puff. Law Nat. bk. 5, c. 12; Ruth. Inst. 422, 427, and in Smith's Commentaries, 814, many cases are mentioned where it was held that matters embraced in the general words of statutes nevertheless were not within the statutes, because it could not have been the intention of the lawmakers that they should be included. They were taken out of the statutes by an equitable construction; and it is said in Bacon: 'By an equitable construction a case not within the letter of a statute is sometimes holden to be within the meaning, because it is within the mischief for which the remedy is provided. The reason for such construction is that the law-makers could not set down every case in express terms.'"[23] In C&C Commercial Corporation v. National Waterworks and Sewerage Authority,[24] we ruled that statutes in pari materia should be construed together to attain the purpose of an expressed national policy, viz: "On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes relating to the same subject matter, it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together. Provisions in an act which are omitted in another act relating to the same subject matter will be applied in a proceeding under the other act, when not inconsistent with its purpose. Prior statutes relating to the same subject matter are to be compared with the new provisions; and if possible by reasonable construction, both are to be construed that effect is given to every provision of each. Statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other."[25] Agpalo writes in his book, Statutory Construction, viz: "Statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary (sic) to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislations on the subject and to have enacted its new act with reference thereto."[26]

When both COA Circular No. 86-264 and COA Circular No. 89-296 were issued, affording flexibility to governmentowned and controlled corporations (GOCC's) to allow them to generate more revenue for national development was a declared government policy. This policy is unmistakable in laws executed before the issuance of Circular No. 86-264 in October 1986. P.D. 2029, "Defining GovernmentOwned and Controlled Corporations and Indentifying Their Role in National Development," dated February 4, 1986, provides: "WHEREAS, there is a need to assure the flexibility of such government corporations consistent with the need for public accountability by providing for differential treatment for government corporations; xxx SECTION 1. General Policy. - It is the policy of the State that the corporate form of organization, utilized judiciously, is one of the valid forms through which the government may participate in economic and social development. xxx SEC. 7. Provision of adequate operational flexiblity. Government corporations shall be provided with adequate operational flexibility in order to function properly and efficiently, especially under conditions of market competition. Such flexibility shall nevertheless be consistent with the requirements of public acountability.

"WHEREAS, it is necessary that the limited resources of government be utilized as efficiently, as effectively, and as economically as possible to further national development and to support the economic recovery program, for which the judicious use of the corporate form of organization is critical; xxx" P.D. 2030, Providing for the Orderly Disposition of Certain Assets of Government Institutions, also issued on February 4, 1986, made explicit the policy of the government to divest government corporations of assets as an aid to national development, viz: "WHEREAS, the National Government, through the agency of various financial and other government institutions, has acquired or is otherwise the owner of a large number of assets in the industrial, manufacturing and commercial sectors of the economy which, as part of the economic recovery program adopted by the National Government, it has been deemed necessary and appropriate for the National Government to divest in a planned and orderly manner; WHEREAS, as an integral part of this economic recovery program and in order to facilitate the reorganization of certain government financial institutions, it is necessary to relieve those institutions of assets which adversely affect their financial viability and liquidity, and for the National Government to take over such assets and to assume the realted liabilities of those institutions;

xxx SEC. 8. Differential treatment.- To implement the concept of greater flexibility, government corporations in general shall be accorded differential treatment which is more consistent with coporate organizational requirements as distinguished from regular government agencies, with respect to the exercise by the various service-wide agencies, such as the Civil Service Commission, the Commission on Audit, and the Office of Budget and Management, of their respective jurisdiction." Letter of Instructions No. 1520, issued on the same day as P.D. 2029 on February 4, 1986, also provides for the role of government corporations in national development, viz:

WHEREAS, it is the desire of the National Government to realize on such assets within the shortest possible time and, to such end, to dispose of such assets generally on terms that would permit immediate substantial cash returns to the National Government; xxx" Proclamation No. 50, "Proclaiming and Launching a Program for the Expeditious Disposition and Privatization of Certain Government Corporations and/or the Assets Thereof, and Creating the Committee on Privatization and the Asset Privatization Trust," issued on December 8, 1986 after the issuance of COA Circular No. 86-264, but prior to COA Circular No. 89-296, reiterates the continuing

policy of the government to encourage divestment of assets as an aid to national development, viz:

as clarified by COA Circular 89-296, and thus does not offend the requirements of the said COA circulars.

"CONSIDERING that the government has decided to adopt, as the twin cornerstones of the program, the following parallel imperatives for the attainment of national policy:

Instead, the policies and procedures of the GSIS on the disposition of acquired assets govern the case at bar. Mr. Romeo Tejedor, manager of the Acquired Assets Department of GSIS, testified that at the time the disputed transaction took place, the GSIS still did not have clear cut policies on the sale of acquired assets. At that time, the GSIS Board of Trustees had the prerogative to authorize the sale of acquired assets. Petitioners aver that the GSIS "Policy and Procedural Guidelines Acquisition, Administration, and Disposition of Acquired Assets (PPG)", a newspaper copy of which they annexed to their reply to the GSIS' brief, provides that a negotiated sale may only be entered into after two failed public biddings on the acquired property. Petitioners, however, omitted to state that the said newspaper copy was published and the PPG took effect only on January 17, 1991, long after the sale of the subject property.[27] In the absence of evidence of policies and procedures contrary to the testimony of Mr. Tejedor, we give credence to Mr. Tejedor's testimony that at the time of the disputed sale to private respondent dela Cruz, GSIS did not have clear cut policies on disposition of assets that required it to first sell the subject property through public bidding before a negotiated sale. The GSIS precisely came out with a PPG in 1991 to set the policies and procedures to govern the disposition of acquired assets because these were not clear cut prior to 1991. We therefore hold that the sale of the subject property to private respondent dela Cruz was not contrary to law.

xxx (b) reducing the number of government corporations which has proliferated to unmanageable proportions; circumscribing the areas of economic activities within which the government corporations may operate; and aiming to achieve these goals through the privatization of a good number of government corporations, and the disposition and liquidation of the non-relevant and nonperforming assets of retained corporations as the logical first step to their rehabilitation." The above-quoted laws on GOCC's and disposition of their assets unmistakeably show the policy of the government to allow flexibility to GOCC's and to promote disposition of non-performing assets. This policy undergirds both COA Circular No. 86-264 and 89-296. Thus, the exception provided in COA Circular No. 86-264 should be, to the widest extent possible, construed to accommodate this policy and allow GOCC's wide latitude in the disposition of their assets, including foreclosed assets or collaterals acquired in the regular course of business. COA Circular No. 89-296 provides for two exceptions to the requirement of disposition primarily through public bidding, i.e., (1) disposal of merchandise or inventory held for sale in the regular course of business; and (2) disposal by government financial institutions of foreclosed assets or collaterals acquired in the regular course of business." In light of the declared policy of the government on GOCC's and their assets, COA Circular No. 89-296 should be understood to have clarified the coverage of the exception under COA Circular No. 86-264, i.e., sales of merchandise/inventory held for sale in the regular course of business. The GSIS being a financial institution extending loans to its members, the foreclosure of the subject property as collateral to a loan was done in the regular course of business. Its sale to private respondent dela Cruz falls within the exception provided by COA Circular No. 86-264

Neither can petitioners invoke the Maharlika case to lend support to its contention that the Board is bound to fulfill its representations in its letters to the petitioners that upon the latter's failure to repurchase the property under Resolution Nos. 929 and 593, the GSIS will dispose of the subject property through public bidding. Petitioners claim that these representations constituted a contract between them and GSIS. The Court of Appeals correctly ruled that there was no contract between GSIS and the petitioners that obligates the GSIS to sell the subject property through public bidding, viz: ". . . the mortgage contract between the parties was not novated as to the extension of the redemption period of appellants since this is not sanctioned by law. What GSIS did per Resolution 929 was to make a counter proposal to appellants for the sale of the property at the price of

P174,572.62 payable in cash within 60 days from notice of resolution with a warning that non-compliance thereof (sic) will result to the sale of the property at public auction. At this point in time, there was still no meeting of the minds between the parties since the request of appellants thru Purificacion Urbano is to extend the redemption period to enable them to redeem the property while Resolution No. 929 is for outright sale for the price of P174,572.62. These are two (2) separate and distinct legal transactions. Under Article 1319 of the Civil Code, the offer must be certain. The offer of Ms. Urbano is certain and explicit as to the extension of time to redeem their property. The acceptance of GSIS to this proposal must also be absolute and clear in granting said extension. However, GSIS did not agree to the extension due to legal constraints and instead a qualified acceptance was given in the sense that GSIS made a counter-offer for appellants to buy the property under certain terms. Was there an acceptance of the counter-offer of GSIS on the part of appellants? Definitely none. On January 10, 1985, when appellants thru Purificacion Urbano was notified by GSIS Manager M.M. Secoquian of the Acquired Assets Department of the approval of the sale under Board Resolution No. 929, appellant Urbano replied on January 18, 1985 that they cannot pay the price of P174,572.62 as it may be difficult for a financial institution to accommodate said obligation within the grace period of 60 days. (Exhibit "E", Records). In turn, Ms. Urbano made another counterproposal "to have the said property be RE-MORTGAGE (sic) through the process of repurchase with the GSIS". (Exhibit "F", Records). . . A similar request was sent by appellant Aurelio Arrienda on May 20, 1985 but the same was denied in a Board Resolution No. 516 dated June 6, 1985. (Exhibit "H", Records). From the foregoing, this Court rules that there was no meeting of the minds between the parties as the counteroffer of GSIS for the appellants to buy the property based on terms and conditions laid down under Board Resolution No. 929 was NOT accepted by appellants. Under Article 1319 of the Civil Code, there was no valid and perfected contract. Hence, appellants cannot claim any right under Board Resolution No. 929, more particularly on the sale at public auction since they did not agree to the counter-offer of GSIS as contained in Board Resolution 929. . . . In response to the request of the First Lady Imelda Marcos, the GSIS Board of Trustees approved Board

Resolution No. 593 which granted to "Mr. Aurelio Arrienda sixty (60) days from notice within which to purchase the property for P174,572.62 payable in cash. Should Mr. Arrienda fail to pay the same within the time frame mentioned, the property shall be sold at public auction, without need of any further action from the Board." (Exhibit "3", p. 232 Records). Mr. Arrienda was notified of the Board Resolution 593 by Manager M.M. Secoquian on August 2, 1985, asking him to remit the amount within 60 days from receipt of said letter (Exhibit "K", Records). However, on October 4, 1985, appellants thru Atty. Ariel Arrienda sent a letter to GSIS making a counter-offer to purchase said property. . . On October 10, 1985, the GSIS Board passed Board Resolution 818 declining the offer of Mr. Arnel Arrienda to purchase the property for P147,572,62 under the terms and conditions he proposed. .. From the foregoing, We likewise conclude that there was no perfected contract between the parties. The proposal of appellants thru Mr. Aurelio Arrienda is for the extension of the redemption period or to restructure their loan with GSIS. (Exhibit "J", Records). The approval of GSIS is for appellants to purchase the property at the price of P174,572.62 within 60 days from receipt of notice. (Exhibit "3", Res. No. 592, Records). This was NOT approved by appellants and instead they made another counterproposal to pay said amount with a down payment of P50,000.00 and the balance to be paid in 60 monthly installments. (Exhibit "1", Records). This counter offer was denied in Resolution 1022. . . It is clear from the above-described events that the offer of appellants to redeem the property or restructure the loan was met with a qualified acceptance from GSIS which is for them to pay the prescribed price within 60 days. Said qualified acceptance constitutes a counter-offer under Article 1319 of the Civil Code and the appellants did not accept the same by making another counter-offer to pay on staggered basis. This counter offer was denied twice by GSIS and therefore there was clearly no meeting of the minds and no perfected contract. If there is completely no acceptance or if the offer is expressly rejected, there is no meeting of the minds. (Leoquingco vs. Postal Savings Bank, 47 Phil. 772 and in Gamboa vs. Gonzales, 17 Phil. 381)

If the acceptance be qualified or not absolute, there is no concurrence of minds. There merely is counter-offer. (Batangan vs. Cojuangco, 78 Phil. 481) A counter-offer as a matter of fact extinguishes the offer. It may or may not be accepted by the original offerer. (Trillana vs. Quezon Colleges, L-5003, June 27, 1953)" (emphasis supplied)[28] III. Finally, on the issue of whether or not GSIS was in bad faith in dealing with the petitioners, we rule in the negative. As earlier discussed, respondent GSIS' denial of petitioners' further requests for repurchase of the subject property was based on a factual determination of petitioners' financial incapacity and the then GSIS charter, P.D. 1146. It is also worth noting that GSIS sold the subject property to respondent dela Cruz only after giving petitioners an almost one year opportunity to repurchase the property and only after ascertaining that the purchase price proposed by private respondent dela Cruz in payment of the subject property would benefit the GSIS. Nor can petitioners, on the strength of Valmonte v. Belmonte, Jr.,[29] impute bad faith on the part of GSIS when the latter did not disclose to petitioners that it was negotiating with private respondent dela Cruz for the sale of the subject property as soon as it started the negotiations. The Court ruled in the Valmonte case that the constitutional right to information is limited to "matters of public concern," to "transactions involving public interest." The negotiation and subsequent sale of the subject property by the GSIS to private respondent dela Cruz was by no stretch of the imagination imbued with public interest as it was a purely private transaction. Petitioners cannot therefore demand that it be informed of such negotiation and sale moreso since they no longer had any interest on the subject property upon failure to comply with GSIS' terms for repurchase and upon GSIS' denial of petitioners' offer to repurchase under their proposed terms and conditions. In the absence of proof of bad faith on the part of the respondents, we deny petitioners' prayer for moral damages and attorney's fees. WHEREFORE, the petition is DENIED and the impugned decision and resolution of the Court of Appeals are AFFIRMED. No costs. SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Pardo, JJ., concur. Ynares-Santiago, J., no part.

SECOND DIVISION [G.R. No. 154616. July 12, 2004] GOV. ANTONIO CALINGIN, petitioner, vs. COURT OF APPEALS, Special 17th Division, EXECUTIVE SECRETARY RENATO S. DE VILLA, DEPT. OF INTERIOR & LOCAL GOVERNMENT SECRETARY JOEY LINA,* UNDERSECRETARY EDUARDO R. SOLIMAN, JR., DEPARTMENT OF THE INTERIOR & LOCAL GOVERNMENT, REGIONAL OFFICE NO. 10, DIRECTOR RODOLFO Z. RAZUL, respondents. RESOLUTION QUISUMBING, J.: Before us is a petition for review seeking to annul the Resolution[1] dated May 11, 2001 of the Court of Appeals in CA-G.R. SP No. 64583, which denied petitioner Governor Antonio Calingin’s petition for prohibition with prayer for temporary restraining order and/or the issuance of an order of status quo ante, as well as its Resolution[2] dated July 1, 2002, denying the motion for reconsideration. The antecedent facts, as summarized by the Court of Appeals and borne by the records, are as follows: The Office of the President issued a Resolution[3] dated March 22, 2001 in OP Case No. 00-1-9220 (DILG ADM. Case No. P-16-99) entitled Vice Governor Danilo P. Lagbas, et al. versus Governor Antonio P. Calingin (Misamis Oriental) suspending Gov. Calingin for 90 days. On April 30, 2001, Undersecretary Eduardo R. Soliman of the Department of the Interior and Local Government (DILG), by authority of Secretary Jose D. Lina, Jr., issued a Memorandum[4] implementing the said Resolution of the Office of the President. On May 3, 2001, Gov. Calingin filed before the Office of the President a Motion for Reconsideration.[5] The DILG Memorandum bore the authority of the Commission on Elections (COMELEC) which granted an exemption to the election ban in the movement of any public officer in its Resolution No. 3992[6] promulgated on

April 24, 2001. This was in pursuance to COMELEC Resolution No. 3401 which provides in part that Section 1. Prohibited Acts – (a) During the election period from January 2, 2001 until July 13, 2001, no public official shall make or cause any transfer/detail whatsoever of any officer or employee in the civil service, including public school teachers, or suspend elective provincial, city, municipal or barangay official, except upon prior written approval of the Commission. On May 7, 2001, Gov. Calingin filed a petition for prohibition before the Court of Appeals to prevent the DILG from executing the assailed suspension order. However, on May 11, 2001, the Court of Appeals dismissed the said petition and by resolution issued on July 1, 2002, denied petitioner’s motion for reconsideration. Hence, this appeal by certiorari where petitioner asserts that the Court of Appeals erred in … FINDING THAT THE EXECUTION OF THE SUSPENSION ORDER OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT DURING THE ELECTION PERIOD IS WITH AUTHORITY FROM THE COMMISSION ON ELECTIONS. … FINDING THAT THE DECISION OF THE OFFICE OF THE PRESIDENT IS FINAL AND EXECUTORY AS PROVIDED IN SECTION 67, CHAPTER 4, OF REPUBLIC ACT 7160, THE LOCAL GOVERNMENT CODE OF 1991.[7] In dispute is the validity of the DILG Memorandum implementing the suspension order issued by the Office of the President. We are asked to resolve in this connection two issues: (1) Was the decision of the Office of the President already final and executory? and (2) Was the exemption from the election ban in the movement of any public officer granted by COMELEC valid? Petitioner contends that decisions of the Office of the President on cases where it has original jurisdiction become final and executory only after the lapse of 15 days from the receipt thereof and that the filing of a Motion for Reconsideration shall suspend the running of the said period[8] in accordance with Section 15,[9] Chapter 3, Book VII of the Administrative Code of 1987.

Petitioner further contends that Section 67,[10] Chapter 4 of the Local Government Code (Rep. Act 7160), which provides that decisions of the Office of the President shall be final and executory, applies only to decisions of the Office of the President on administrative cases appealed from the sangguniang panlalawigan, sangguniang panlungsod of highly-urbanized cities and independent component cities, and sangguniang bayan of municipalities within the Metro Manila Area. It does not cover decisions on cases where the Office of the President has original jurisdiction such as those involving a Provincial Governor.[11] In Lapid v. Court of Appeals,[12] we held that it is a principle of statutory construction that where there are two statutes that apply to a particular case, that which was specially intended for the said case must prevail. The case on hand involves a disciplinary action against an elective local official. Thus, the Local Government Code is the applicable law and must prevail over the Administrative Code which is of general application.[13] Further, the Local Government Code of 1991 was enacted much later than the Administrative Code of 1987. In statutory construction, all laws or parts thereof which are inconsistent with the later law are repealed or modified accordingly.[14] Besides, even though appeal to the Court of Appeals is granted under Sec. 1,[15] Rule 43 of the Revised Rules of Court, Sec. 12,[16] Rule 43 of the Revised Rules of Court in relation to Sec. 68[17] of the Local Government Code provides for the immediate execution pending appeal. Under the same case of Lapid v. Court of Appeals,[18] we enunciated that the decisions of the Office of the President under the Local Government Code are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandated them to be so. In sum, the decisions of the Office of the President are final and executory. No motion for reconsideration is allowed by law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay the execution of the decision. Thus, the DILG Secretary may validly move for its immediate execution. As to the validity of the exemption granted by COMELEC in its Resolution No. 3992, petitioner claims that the exemption was invalid for being based on a mere draft

resolution. According to him, a draft resolution does not operate as a final resolution of a case until the proper resolution is duly signed and promulgated. Petitioner maintains that a draft cannot produce any legal effect. A perusal of the records, however, reveals that the Resolution in O.P. Case No. 00-1-9220 was approved and signed on March 22, 2001 by Executive Secretary Renato de Villa by the authority of the President. Hence, the approval was before the promulgation of COMELEC Resolution No. 3992 on April 24, 2001. The record also shows that the request to implement the said suspension order was filed on March 22, 2001 by the Senior Deputy Executive Secretary of the Office of the President pursuant to the requirements stated in the Resolution. Moreover, COMELEC Resolution No. 3529[19] – which may be applied by analogy and in relation to Sec. 2[20] of COMELEC Resolution No. 3401 – merely requires the request to be in writing indicating the office and place from which the officer is removed, and the reason for said movement, and submitted together with the formal complaint executed under oath and containing the specific charges and the answer to said complaint. The request for the exemption was accompanied with the Affidavit of Complaint, Affidavit of Controversion, Reply and Draft Resolution. The pertinent documents required by the COMELEC to substantiate the request were submitted. There being a proper basis for its grant of exemption, COMELEC Resolution No. 3992 is valid. WHEREFORE, the instant petition for review on certiorari is DENIED. The assailed Court of Appeals’ resolutions dated May 11, 2002 and July 1, 2002 in CA-G.R. SP No. 64583 are hereby AFFIRMED. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur. EN BANC [G.R. No. 123037. March 21, 1997] TEODORO Q. PEÑA, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND ALFREDO E. ABUEG, JR., respondents. DECISION TORRES, JR., J.:

Assailed herein is the October 12, 1995 Resolution[1] of the House of Representatives Electoral Tribunal (HRET) dismissing the Petition Ad Cautelam of the Petitioner Teodoro Q. Peña in HRET Case No. 95-014. Petitioner questioned the election of the private respondent Alfredo E. Abueg, Jr. as Member of the House of Representatives representing the Second District of the province of Palawan. Petitioner and the private respondent were contenders for the said Congressional Office in the May 8, 1995 elections. On May 12, 195, upon canvassing the votes cast, the Provincial Board of Canvassers of Palawan proclaimed the private respondent as the winner. On May 22, 1995, the instant petition was filed with the HRET, wherein the petitioner, as protestant, averred that: “7. The elections in the precincts of the Second District of Palawan were tainted with massive fraud, widespread vote-buying, intimidation and terrorism and other serious irregularities committed before, during and after the voting, and during the counting of votes and the preparation of election returns and certificates of canvass which affected the results of the election. Among the fraudulent acts committed were the massive vote-buying and intimidation of voters, disenfranchisement of petitioner’s known supporters through systematic deletion of names from the lists of voters, allowing persons to vote in excess of the number of registered voters, misappreciation, misreading and non-reading of protestant’s ballots and other irregularities. 8. According to the Statement of Votes by Precinct/Municipality/City, the protestee allegedly obtained 52,967 votes, while the protestant allegedly obtained 46,023 votes, or a difference of 6,944 votes. A copy of said document is attached hereto as Annex ‘B’. 9. Had the massive fraud, widespread intimidation and terrorism and other serious irregularities not been committed, the result of the elections for Member of the House of Representatives would have been different and the protestant would have garnered the highest number of votes for the Office Member of the House of Representatives in the Second District of Palawan, which was the true expression of the will of the voters of the Province of Palawan.

10. The proclamation by the members of the Provincial Board of Canvassers of Palawan that the protestee was allegedly the duly elected Member of the House of Representatives for the Second District of Palawan is contrary to law and to the true expression of the will of the voters of the Province of Palawan.”[2] Private respondent-Protestee Abueg filed an Answer With Affirmative Defense, Counterclaim and Counter-Protest[3] on June 5, 1995, to which Peña filed a Reply on June 23, 1995. Subsequent to the filing of his Answer, Abueg filed a Motion to Dismiss[4] the Petition on June 22, 1995, averring that the HRET has not acquired jurisdiction over the petition, the same being insufficient in form and substance. In essence, the motion to dismiss anchors its challenge on the fact that the petition failed to allege the precincts where the massive fraud and disenfranchisement of voters occurred, nor did it point out how many votes would be gained by the protestant as a result of the same. Petitioner filed an Opposition to the Motion to Dismiss[5] on July 10, 1995, attaching thereto a Summary of Contested Precincts, naming 700 precincts where election irregularities allegedly occurred. In its Resolution of October 12, 1995, the respondent HRET ruled that although it had jurisdiction over the petition, as the sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives, the said petition, however, fails to state a cause of action, and is therefore, insufficient in form and substance, meriting its dismissal. The HRET states pertinently: “There are 743 precincts in the second congressional district of Palawan which is comprised of Puerto Princesa City and the municipalities of Aborlan, Balabac, Bataraza, Brooke’s Point, Narra, Quezon, and Marcos (Ordinance appended to the 1973 Constitution). The Protestant failed to specify which are the 700 precincts, out of the said 743 precincts, that are included in his protest; he even failed to allege the municipalities where the protested precincts are located. Worse, the body of the Petition does not even mention the 700 precincts. Reference to them is made only in the Prayer. These omissions prevent Protestee from being apprised of the issues which he has to meet

and make it virtually impossible for the Tribunal to determine which ballot boxes have to be collected. The Supreme Court, in Fernando vs. Pastor M. Endencia, Judge of First Instance of Bulacan, et. al. (No. 46099, 66 Phil 148, 150, August 30, 1938) observed that, ‘[w]hile the election law does not say so directly, it is clearly inferred from its relevant provisions that where the grounds of contest are that legal votes were rejected and illegal votes received, the motion of protest should state in what precincts such irregularities occurred. xxx The specification in the motion of protest of the election precinct or precincts where the alleged irregularities occurred, is required in order to apprise the contestee of the issues which he has to meet. xxx’ In its more recent resolution in Grand Alliance for Democracy (GAD) vs. COMELEC (G.R. No. 78302, May 26, 1987, 150 SCRA 665), the Supreme Court held that the petition therein ‘could have been dismissed outright as deficient in form and substance, being couched in general terms only, without precise indication of the time, place and manner of the commission of the alleged irregularities.’ xxx Similarly, this Tribunal, in dismissing an election protest, observed that the protest, in general language, “impugns, contests and protests the illegal, improper and fraudulent electoral practices, acts and deeds” of the protestee and “impugns and contests all the election returns in the lone district of Catanduanes.” The tribunal held that this scattershot allegation is not allowed in election contests and that “it is necessary to make a precise indication of the precincts protested and a specification of the claimed offenses to have been committed by the parties.” (Alberto vs. Tapia, HRET Case No. 37, January 23, 1989) While Protestant has attached as Annex “A” to his Opposition to the Motion to Dismiss, filed on 10 July 1995, a Summary of contested Precincts, the defects in his Protest were not cured thereby as the Summary was submitted only after the Motion to Dismiss had been filed. The Opposition and the attached Summary do not amend the original Petition. There is not even a prayer in the Opposition suggesting such amendment. Moreover, in a Resolution promulgated on 17 June 1995, the Commission on Elections en banc (COMELEC) dismissed herein Petitioner’s Petition (SPA Case No. 95-

258) to declare a failure of elections in the second district of Palawan. Copy of said Resolution was sent to Petitioner Peña’s Petition Ad Cautelam was thus converted into a regular protest (not Ad Cautelam) effective upon the finality of the official COMELEC resolution, thereby providing him an opportunity to amend it to cure the defects cited above, Protestant took no positive and affirmative steps for that purpose. Protestant alleges in his Opposition that Protestee has likewise failed to specify the 47 precincts he contests in his Counter-Protest. This omission merely renders Protestee’s Counter-Protest defective for insufficiency in form and substance and for failure to state a cause of action. It does not cure the fatal defects in Protestant’s Petition. WHEREFORE, for failure of the petition (Protest) to state a cause of action because it is fatally insufficient in form and substance, the Tribunal Resolved to GRANT Protestee’s Motion to Dismiss and to DISMISS, as it hereby DISMISSES, the instant Petition of Protest. As a logical consequence thereof and also for the same reason, Protestee’s Counter-Protest is DISMISSED. No pronouncement as to costs. SO ORDERED.”[6] Petitioner’s motion for reconsideration of the said resolution was denied by the respondent tribunal on November 14, 1995. In this Petition for Certiorari, filed on December 29, 1995, petitioner argues that the respondent HRET acted with grave abuse of discretion amounting to having acted without or in excess of jurisdiction in dismissing the election protest of petitioner considering that: I “THE PETITION AD CAUTELAM DATED 22 MAY 1995 STATED A CAUSE OF ACTION AND IS SUFFICIENT IN FORM AND SUBSTANCE. II ASSUMING ARGUENDO THAT THE PETITION WAS INITIALLY DEFECTIVE BECAUSE IT FAILED TO

SPECIFY THE CONTESTED PRECINCTS, SAID DEFECT WAS CURED WHEN PETITIONER SUBMITTED A SUMMARY OF THE CONTESTED PRECINCTS WHICH FORMS PART OF THE RECORD OF THE RESPONDENT HRET.” It is the Petitioner’s view that the instant election protest is sufficient in form and substance even while failing to specify the precincts where irregularities allegedly occurred. Nowhere is it provided that the specification of the precincts is a jurisdictional requirement that must be complied with in order that an election protest can be entertained by the HRET. To support his submission, petitioner cites the cases of Yalung vs. Atienza, 52 Phil 781, Arao vs. COMELEC, 210 SCRA 790 and Gallares vs. Casenas, 48 Phil 362, the latter stating that:

Revised Rules of Procedure of the HRET, it is provided that: “RULE 22. Summons. - Upon the filing of the petition, the Clerk of the Tribunal shall forthwith issue the corresponding summons to the protestee or respondent together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer.” As to the adequacy of the protest, we agree with respondent HRET in ruling for the insufficiency of the same.

“From a reading of the allegations of the protest, it may be seen that frauds, irregularities and violations of the law are alleged therein, which, if true, would undoubtedly change the result of the elections.

A perusal of the petition Ad Cautelam, reveals that Petitioner makes no specific mention of the precincts where widespread election, fraud and irregularities occured. This is a fatal omission, as it goes into the very substance of the protest. Under Section 21 of the Revised Rules of Procedure of HRET, insufficiency in form and substance of the petition constitutes a ground for the immediate dismissal of the Petition.

The fact that in the protest the number of votes which would result in favor of the protestant after the judicial counting is not specified, does not affect the right of the protestant, for it being known that said omission is a defect of the protest, the same may be cured by a specification of the votes mentioned in paragraphs 1, 2 and 3 of the protest, without thereby adding new grounds for those already alleged by the protestant.”

The prescription that the petition must be sufficient in form and substance means that the petition must be more than merely rhetorical. If the allegations contained therein are unsupported by even the faintest whisper of authority in fact and law, then there is no other course than to dismiss the petition, otherwise, the assumptions of an elected public official may, and will always be held up by petitions of this sort by the losing candidate.

Applying the same principle to the specification of precincts in the instant case, the defect in the petition should have been cured by the opposition to the private respondent’s Motion to Dismiss.

Notably, the instant petition ad cautelam poses a more serious inadequacy than a mere failure to specify the number of votes which would inure to the protestant, as was the case in Gallares vs. Casenas, or the failure to impugn the validity of some of the ballots cast, as in Yalung vs. Atienza, supra, both of which cases were decided in the 1920s. The defect in the instant case arises from the failure to allege the contested precincts. Only a bare allegation of “massive fraud, widespread intimidation and terrorism and other serious irregularities”, without specification, and substantiation, of where and how these occurences took place, appears in the petition. We cannot allow an election protest based on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an endless stream of crabs pulling at each other, racing to disembank from the water.

Moreover, the fact that the HRET did not summarily dismiss the Petition Ad Cautelam, and instead, required the private respondent Abueg to file an Answer, the HRET has thus made a prior determination that the petition is sufficient in form and substance. We do not agree. In the first place, in requiring the private respondent to answer the petition, the HRET was not ruling on the formal and substantive sufficiency of the petition. The order to require an answer is but a matter of course, as under the

On his second point of argument, Petitioner likewise fails to impress. The Court has already ruled in Joker P. Arroyo vs. HRET,[7] that substantial amendments to the protest may be allowed only within the same period for filing the election protest, which, under Rule 16 of the HRET Rules of Procedure is ten (10) days after proclamation of the winner.

Bellosillo, J., took no part due to relation to one party.

While it is conceded that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical questions, the rule likewise stands, that in an election protest, the protestant must stand or fall upon the issues he had raised in his original or amended pleading filed prior to the lapse of the statutory period for filing of the protest.[8]

COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. B.F. GOODRICH PHILS., INC. (now SIME DARBY INTERNATIONAL TIRE CO., INC.) and THE COURT OF APPEALS, respondents. DECISION PANGANIBAN, J.:

Admittedly, the rule is well-established that the power to annul an election should be exercised with the greatest care as it involves the free and fair expression of the popular will. It is only in extreme cases of fraud and under circumstances which demonstrate to the fullest degree a fundamental and wanton disregard of the law that elections are annulled, and then only when it becomes impossible to take any other step.[9] xxx This is as it should be, for the democratic system is good for the many although abhorred by a few. In sum, this Court’s jurisdiction to review decisions and orders of electoral tribunals operates only upon a showing of grave abuse of discretion on the part of the tribunal. Only where such a grave abuse of discretion is clearly shown shall the Court interfere with the electoral tribunal’s judgment. There is such showing in the present petition. IN VIEW OF THE FOREGOING, the Court hereby resolves to DISMISS the present petition for lack of merit. The resolution of the respondent House of Representatives Electoral Tribunal dated October 12, 1995 is hereby AFFIRMED. SO ORDERED. Narvasa, C.J., Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur. Padilla, and Regalado, JJ., took no part (Chairman of HRET). Davide, Jr., Romero, and Melo, JJ., took no part (Members of HRET).

SYLLABI/SYNOPSIS THIRD DIVISION [G.R. No. 104171. February 24, 1999]

Notwithstanding the expiration of the five-year prescriptive period, may the Bureau of Internal Revenue (BIR) still assess a taxpayer even after the latter has already paid the tax due, on the ground that the previous assessment was insufficient or based on a “false” return? The Case This is the main question raised before us in this Petition for Review on Certiorari assailing the Decision[1] dated February 14, 1992, promulgated by the Court of Appeals[2] in CA-GR SP No. 25100. The assailed Decision reversed the Court of Tax Appeals (CTA)[3] which upheld the BIR commissioner’s assessments made beyond the five-year statute of limitations. The Facts The facts are undisputed.[4] Private Respondent BF Goodrich Phils., Inc. (now Sime Darby International Tire Co. Inc.), was an American-owned and controlled corporation previous to July 3, 1974. As a condition for approving the manufacture by private respondent of tires and other rubber products, the Central Bank of the Philippines required that it should develop a rubber plantation. In compliance with this requirement, private respondent purchased from the Philippine government in 1961, under the Public Land Act and the Parity Amendment to the 1935 Constitution, certain parcels of land located in Tumajubong, Basilan, and there developed a rubber plantation. More than a decade later, on August 2, 1973, the justice secretary rendered an opinion stating that, upon the

expiration of the Parity Amendment on July 3, 1974, the ownership rights of Americans over public agricultural lands, including the right to dispose or sell their real estate, would be lost. On the basis of this Opinion, private respondent sold to Siltown Realty Philippines, Inc. on January 21, 1974, its Basilan landholding for P500,000 payable in installments. In accord with the terms of the sale, Siltown Realty Philippines, Inc. leased the said parcels of land to private respondent for a period of 25 years, with an extension of another 25 years at the latter’s option. Based on the BIR’s Letter of Authority No. 10115 dated April 14, 1975, the books and accounts of private respondent were examined for the purpose of determining its tax liability for taxable year 1974. The examination resulted in the April 23, 1975 assessment of private respondent for deficiency income tax in the amount of P6,005.35, which it duly paid. Subsequently the BIR also issued Letters of Authority Nos. 074420 RR and 074421 RR and Memorandum Authority Reference No. 749157 for the purpose of examining Siltown’s business, income and tax liabilities. On the basis of this examination, the BIR commissioner issued against private respondent on October 10, 1980, an assessment for deficiency in donor’s tax in the amount of P1,020,850, in relation to the previously mentioned sale of its Basilan landholdings to Siltown. Apparently, the BIR deemed the consideration for the sale insufficient, and the difference between the fair market value and the actual purchase price a taxable donation. In a letter dated November 24, 1980, private respondent contested this assessment. On April 9, 1981, it received another assessment dated March 16, 1981, which increased to P1,092,949 the amount demanded for the alleged deficiency donor’s tax, surcharge, interest and compromise penalty. Private respondent appealed the correctness and the legality of these last two assessments to the CTA. After trial in due course, the CTA rendered its Decision dated March 29, 1991, the dispositive portion of which reads as follows: “WHEREFORE, the decision of the Commissioner of Internal Revenue assessing petitioner deficiency gift tax is MODIFIED and petitioner is ordered to pay the amount of

P1,311,179.01 plus 10% surcharge and 20% annual interest from March 16, 1981 until fully paid provided that the maximum amount that may be collected as interest on delinquency shall in no case exceed an amount corresponding to a period of three years pursuant to Section 130(b) (1) and (c) of the 1977 Tax Code, as amended by P.D. No. 1705, which took effect on August 1, 1980. “SO ORDERED.”[5] Undaunted, private respondent elevated the matter to the Court of Appeals, which reversed the CTA, as follows: “What is involved here is not a first assessment; nor is it one within the 5-year period stated in Section 331 above. Since what is involved in this case is a multiple assessment beyond the five-year period, the assessment must be based on the grounds provided in Section 337, and not on Section 15 of the 1974 Tax Code. Section 337 utilizes the very specific terms ‘fraud, irregularity, and mistake’. ‘Falsity does not appear to be included in this enumeration. Falsity suffices for an assessment, which is a first assessment made within the five-year period. When it is a subsequent assessment made beyond the five-year period, then, it may be validly justified only by ‘fraud, irregularity and mistake’ on the part of the taxpayer.”[6] Hence, this Petition for Review under Rule 45 of the Rules of Court.[7] The Issues Before us, petitioner raises the following issues: “I Whether or not petitioner’s right to assess herein deficiency donor’s tax has indeed prescribed as ruled by public respondent Court of Appeals II Whether or not the herein deficiency donor’s tax assessment for 1974 is valid and in accordance with law” Prescription is the crucial issue in the resolution of this case.

The Court’s Ruling The petition has no merit. Main Issue: Prescription The petitioner contends that the Court of Appeals erred in reversing the CTA on the issue of prescription, because its ruling was based on factual findings that should have been left undisturbed on appeal, in the absence of any showing that it had been tainted with gross error or grave abuse of discretion.[8] The Court is not persuaded. True, the factual findings of the CTA are generally not disturbed on appeal when supported by substantial evidence and in the absence of gross error or grave abuse of discretion. However, the CTA’s application of the law to the facts of this controversy is an altogether different matter, for it involves a legal question. There is a question of law when the issue is the application of the law to a given set of facts. On the other hand, a question of fact involves the truth or falsehood of alleged facts.[9] In the present case, the Court of Appeals ruled not on the truth or falsity of the facts found by the CTA, but on the latter’s application of the law on prescription. Section 331 of the National Internal Revenue Code provides: “SEC. 331. Period of limitation upon assessment and collection. – Except as provided in the succeeding section, internal-revenue taxes shall be assessed within five years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after expiration of such period. For the purposes of this section, a return filed before the last day prescribed by law for the filing thereof shall be considered as filed on such last day: Provided, That this limitation shall not apply to cases already investigated prior to the approval of this Code.” Applying this provision of law to the facts at hand, it is clear that the October 16, 1980 and the March 1981 assessments were issued by the BIR beyond the five-year statute of limitations. The Court has thoroughly studied the records of this case and found no basis to disregard the five-year period of prescription. As succinctly pronounced by the Court of Appeals:

“The subsequent assessment made by the respondent Commissioner on October 10, 1980, modified by that of March 16, 1981, violates the law. Involved in this petition is the income of the petitioner for the year 1974, the returns for which were required to be filed on or before April 15 of the succeeding year. The returns for the year 1974 were duly filed by the petitioner, and assessment of taxes due for such year -- including that on the transfer of properties on June 21, 1974 -- was made on April 13, 1975 and acknowledged by Letter of Confirmation No. 101155 terminating the examination on this subject. The subsequent assessment of October 10, 1980 modified, by that of March 16, 1981, was made beyond the period expressly set in Section 331 of the National Intenal Revenue Code xxx.”[10] Petitioner relies on the CTA ruling, the salient portion of which reads: “Falsity is what we have here, and for that matter, we hasten to add that the second assessment (March 16, 1981) of the Commissioner was well-advised having been made in contemplation of his power under Section 15 of the 1974 Code (now Section 16, of NIRC) to assess the proper tax on the best evidence obtainable “when there is reason to believe that a report of a taxpayer is false, incomplete or erroneous.” More, when there is falsity with intent to evade tax as in this case, the ordinary period of limitation upon assessment and collection does not apply so that contrary to the averment of petitioner, the right to assess respondent has not prescribed. “What is the considered falsity? The transfer through sales of the parcels of land in Tumajubong, Lamitan, Basilan in favor of Siltown Realty for the sum of P500,000.00 only whereas said lands had been sworn to under Presidential Decree No. 76 (Dec. 6, 1972) as having a value of P2,683,467 (P2,475, 467 + P207,700) (see Declaration of Real Property form, p. 28, and p. 15, no. 5, BIR Record).”[11] For the purpose of safeguarding taxpayers from any unreasonable examination, investigation or assessment, our tax law provides a statute of limitations in the collection of taxes. Thus, the law on prescription, being a remedial measure, should be liberally construed in order to afford such protection.[12] As a corollary, the exceptions to the law on prescription should perforce be strictly construed.

Section 15 of the NIRC, on the other hand, provides that “[w]hen a report required by law as a basis for the assessment of any national internal revenue tax shall not be forthcoming within the time fixed by law or regulation, or when there is reason to believe that any such report is false, incomplete, or erroneous, the Commissioner of Internal Revenue shall assess the proper tax on the best evidence obtainable.” Clearly, Section 15 does not provide an exception to the statute of limitations on the issuance of an assessment, by allowing the initial assessment to be made on the basis of the best evidence available. Having made its initial assessment in the manner prescribed, the commissioner could not have been authorized to issue, beyond the five-year prescriptive period, the second and the third assessments under consideration before us. Nor is petitioner’s claim of falsity sufficient to take the questioned assessments out of the ambit of the statute of limitations. The relevant part of then Section 332 of the NIRC, which enumerates the exceptions to the period of prescription, provides: “SEC. 332. Exceptions as to period of limitation of assessment and collection of taxes. -- (a) In the case of a false or fraudulent return with intent to evade a tax or of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time within ten years after the discovery of the falsity, fraud, or omission: xxx.” Petitioner insists that private respondent committed “falsity” when it sold the property for a price lesser than its declared fair market value. This fact alone did not constitute a false return which contains wrong information due to mistake, carelessness or ignorance.[13] It is possible that real property may be sold for less than adequate consideration for a bona fide business purpose; in such event, the sale remains an “arm’s length” transaction. In the present case, the private respondent was compelled to sell the property even at a price less than its market value, because it would have lost all ownership rights over it upon the expiration of the parity amendment. In other words, private respondent was attempting to minimize its losses. At the same time, it was able to lease the property for 25 years, renewable for another 25. This can be regarded as another consideration on the price.

Furthermore, the fact that private respondent sold its real property for a price less than its declared fair market value did not by itself justify a finding of false return. Indeed, private respondent declared the sale in its 1974 return submitted to the BIR.[14] Within the five-year prescriptive period, the BIR could have issued the questioned assessment, because the declared fair market value of said property was of public record. This it did not do, however, during all those five years. Moreover, the BIR failed to prove that respondent's 1974 return had been filed fraudulently. Equally. significant was its failure to prove respondent's intent to evade the payment of the correct amount of tax. Ineludibly, the BIR failed to show that private respondent's 1974 return was filed fraudulently with intent to evade the payment of the correct amount of tax.[15] Moreover, even though a donor's tax, which is defined as "a tax on the privilege of transmitting one's property or property rights to another or others without adequate and full valuable consideration,"[16] is different from capital gains tax, a tax on the gain from the sale of the taxpayer's property forming part of capital assets,[17] the tax return filed by private respondent to report its income for the year 1974 was sufficient compliance with the legal requirement to file a return. In other words, the fact that the sale transaction may have partly resulted in a donation does not change the fact that private respondent already reported its income for 1974 by filing an income tax return. Since the BIR failed to demonstrate clearly that private respondent had filed a fraudulent return with the intent to evade tax, or that it had failed to file a return at all, the period for assessments has obviously prescribed. Such instances of negligence or oversight on the part of the BIR cannot prejudice taxpayers, considering that the prescriptive period was precisely intended to give them peace of mind. Based on the foregoing, a discussion of the validity and legality of the assailed assessments has become moot and unnecessary. WHEREFORE, the Petition for Review is DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. No costs. SO ORDERED.

Romero (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur. Vitug, J., on official leave.

THIRD DIVISION

PHILEX MINING CORPORATION, Petitioner,

G.R. No. 148187 Present: Ynares-Santiago, J.

(Chairperson), - versus Nachura, and, Reyes, JJ. COMMISSIONER OF INTERNAL REVENUE, Respondent.

Carpio Morales, * Chico-Nazario,

Promulgated:

April 16, 2008 x --------------------------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.:

This is a petition for review on certiorari of the June 30, 2000 Decision[1] of the Court of Appeals in CA-G.R. SP No. 49385, which affirmed the Decision[2] of the Court of Tax Appeals in C.T.A. Case No. 5200. Also assailed is the April 3, 2001 Resolution[3] denying the motion for reconsideration. The facts of the case are as follows: On April 16, 1971, petitioner Philex Mining Corporation (Philex Mining), entered into an agreement[4] with Baguio Gold Mining Company (”Baguio Gold”) for the former to manage and operate the latter’s mining claim, known as the Sto. Nino mine, located in Atok and Tublay, Benguet Province. The parties’ agreement was denominated as “Power of Attorney” and provided for the following terms:

4. Within three (3) years from date thereof, the PRINCIPAL (Baguio Gold) shall make available to the MANAGERS (Philex Mining) up to ELEVEN MILLION PESOS (P11,000,000.00), in such amounts as from time to time may be required by the MANAGERS within the said 3-year period, for use in the MANAGEMENT of the STO. NINO MINE. The said ELEVEN MILLION PESOS (P11,000,000.00) shall be deemed, for internal audit purposes, as the owner’s account in the Sto. Nino PROJECT. Any part of any income of the PRINCIPAL from the STO. NINO MINE, which is left with the Sto. Nino PROJECT, shall be added to such owner’s account. 5. Whenever the MANAGERS shall deem it necessary and convenient in connection with the MANAGEMENT of the STO. NINO MINE, they may transfer their own funds or property to the Sto. Nino PROJECT, in accordance with the following arrangements: (a) The properties shall be appraised and, together with the cash, shall be carried by the Sto. Nino PROJECT as a special fund to be known as the MANAGERS’ account. (b) The total of the MANAGERS’ account shall not exceed P11,000,000.00, except with prior approval of the PRINCIPAL; provided, however, that if the compensation of the MANAGERS as herein provided cannot be paid in cash from the Sto. Nino PROJECT, the amount not so paid in cash shall be added to the MANAGERS’ account. (c) The cash and property shall not thereafter be withdrawn from the Sto. Nino PROJECT until termination of this Agency. (d) The MANAGERS’ account shall not accrue interest. Since it is the desire of the PRINCIPAL to extend to the MANAGERS the benefit of subsequent appreciation of property, upon a projected termination of this Agency, the ratio which the MANAGERS’ account has to the owner’s account will be determined, and the corresponding proportion of the entire assets of the STO. NINO MINE, excluding the claims, shall be transferred to the MANAGERS, except that such transferred assets shall not include mine development, roads, buildings, and similar property which will be valueless, or of slight value, to the MANAGERS. The MANAGERS can, on the other hand,

require at their option that property originally transferred by them to the Sto. Nino PROJECT be re-transferred to them. Until such assets are transferred to the MANAGERS, this Agency shall remain subsisting. xxxx 12. The compensation of the MANAGER shall be fifty per cent (50%) of the net profit of the Sto. Nino PROJECT before income tax. It is understood that the MANAGERS shall pay income tax on their compensation, while the PRINCIPAL shall pay income tax on the net profit of the Sto. Nino PROJECT after deduction therefrom of the MANAGERS’ compensation. xxxx 16. The PRINCIPAL has current pecuniary obligation in favor of the MANAGERS and, in the future, may incur other obligations in favor of the MANAGERS. This Power of Attorney has been executed as security for the payment and satisfaction of all such obligations of the PRINCIPAL in favor of the MANAGERS and as a means to fulfill the same. Therefore, this Agency shall be irrevocable while any obligation of the PRINCIPAL in favor of the MANAGERS is outstanding, inclusive of the MANAGERS’ account. After all obligations of the PRINCIPAL in favor of the MANAGERS have been paid and satisfied in full, this Agency shall be revocable by the PRINCIPAL upon 36month notice to the MANAGERS. 17. Notwithstanding any agreement or understanding between the PRINCIPAL and the MANAGERS to the contrary, the MANAGERS may withdraw from this Agency by giving 6-month notice to the PRINCIPAL. The MANAGERS shall not in any manner be held liable to the PRINCIPAL by reason alone of such withdrawal. Paragraph 5(d) hereof shall be operative in case of the MANAGERS’ withdrawal. x x x x[5] In the course of managing and operating the project, Philex Mining made advances of cash and property in accordance with paragraph 5 of the agreement. However, the mine suffered continuing losses over the years which resulted to petitioner’s withdrawal as manager of the mine on January 28, 1982 and in the eventual cessation of mine operations on February 20, 1982.[6]

Thereafter, on September 27, 1982, the parties executed a “Compromise with Dation in Payment”[7] wherein Baguio Gold admitted an indebtedness to petitioner in the amount of P179,394,000.00 and agreed to pay the same in three segments by first assigning Baguio Gold’s tangible assets to petitioner, transferring to the latter Baguio Gold’s equitable title in its Philodrill assets and finally settling the remaining liability through properties that Baguio Gold may acquire in the future. On December 31, 1982, the parties executed an “Amendment to Compromise with Dation in Payment”[8] where the parties determined that Baguio Gold’s indebtedness to petitioner actually amounted to P259,137,245.00, which sum included liabilities of Baguio Gold to other creditors that petitioner had assumed as guarantor. These liabilities pertained to long-term loans amounting to US$11,000,000.00 contracted by Baguio Gold from the Bank of America NT & SA and Citibank N.A. This time, Baguio Gold undertook to pay petitioner in two segments by first assigning its tangible assets for P127,838,051.00 and then transferring its equitable title in its Philodrill assets for P16,302,426.00. The parties then ascertained that Baguio Gold had a remaining outstanding indebtedness to petitioner in the amount of P114,996,768.00. Subsequently, petitioner wrote off in its 1982 books of account the remaining outstanding indebtedness of Baguio Gold by charging P112,136,000.00 to allowances and reserves that were set up in 1981 and P2,860,768.00 to the 1982 operations. In its 1982 annual income tax return, petitioner deducted from its gross income the amount of P112,136,000.00 as “loss on settlement of receivables from Baguio Gold against reserves and allowances.”[9] However, the Bureau of Internal Revenue (BIR) disallowed the amount as deduction for bad debt and assessed petitioner a deficiency income tax of P62,811,161.39. Petitioner protested before the BIR arguing that the deduction must be allowed since all requisites for a bad debt deduction were satisfied, to wit: (a) there was a valid and existing debt; (b) the debt was ascertained to be worthless; and (c) it was charged off within the taxable year when it was determined to be worthless.

Petitioner emphasized that the debt arose out of a valid management contract it entered into with Baguio Gold. The bad debt deduction represented advances made by petitioner which, pursuant to the management contract, formed part of Baguio Gold’s “pecuniary obligations” to petitioner. It also included payments made by petitioner as guarantor of Baguio Gold’s long-term loans which legally entitled petitioner to be subrogated to the rights of the original creditor. Petitioner also asserted that due to Baguio Gold’s irreversible losses, it became evident that it would not be able to recover the advances and payments it had made in behalf of Baguio Gold. For a debt to be considered worthless, petitioner claimed that it was neither required to institute a judicial action for collection against the debtor nor to sell or dispose of collateral assets in satisfaction of the debt. It is enough that a taxpayer exerted diligent efforts to enforce collection and exhausted all reasonable means to collect. On October 28, 1994, the BIR denied petitioner’s protest for lack of legal and factual basis. It held that the alleged debt was not ascertained to be worthless since Baguio Gold remained existing and had not filed a petition for bankruptcy; and that the deduction did not consist of a valid and subsisting debt considering that, under the management contract, petitioner was to be paid fifty percent (50%) of the project’s net profit.[10] Petitioner appealed before the Court of Tax Appeals (CTA) which rendered judgment, as follows: WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby DENIED for lack of merit. The assessment in question, viz: FAS-1-82-88-003067 for deficiency income tax in the amount of P62,811,161.39 is hereby AFFIRMED. ACCORDINGLY, petitioner Philex Mining Corporation is hereby ORDERED to PAY respondent Commissioner of Internal Revenue the amount of P62,811,161.39, plus, 20% delinquency interest due computed from February 10, 1995, which is the date after the 20-day grace period given by the respondent within which petitioner has to pay the deficiency amount x x x up to actual date of payment. SO ORDERED.[11]

The CTA rejected petitioner’s assertion that the advances it made for the Sto. Nino mine were in the nature of a loan. It instead characterized the advances as petitioner’s investment in a partnership with Baguio Gold for the development and exploitation of the Sto. Nino mine. The CTA held that the “Power of Attorney” executed by petitioner and Baguio Gold was actually a partnership agreement. Since the advanced amount partook of the nature of an investment, it could not be deducted as a bad debt from petitioner’s gross income. The CTA likewise held that the amount paid by petitioner for the long-term loan obligations of Baguio Gold could not be allowed as a bad debt deduction. At the time the payments were made, Baguio Gold was not in default since its loans were not yet due and demandable. What petitioner did was to pre-pay the loans as evidenced by the notice sent by Bank of America showing that it was merely demanding payment of the installment and interests due. Moreover, Citibank imposed and collected a “pretermination penalty” for the pre-payment. The Court of Appeals affirmed the decision of the CTA.[12] Hence, upon denial of its motion for reconsideration,[13] petitioner took this recourse under Rule 45 of the Rules of Court, alleging that: I. The Court of Appeals erred in construing that the advances made by Philex in the management of the Sto. Nino Mine pursuant to the Power of Attorney partook of the nature of an investment rather than a loan. II. The Court of Appeals erred in ruling that the 50%-50% sharing in the net profits of the Sto. Nino Mine indicates that Philex is a partner of Baguio Gold in the development of the Sto. Nino Mine notwithstanding the clear absence of any intent on the part of Philex and Baguio Gold to form a partnership. III. The Court of Appeals erred in relying only on the Power of Attorney and in completely disregarding the Compromise Agreement and the Amended Compromise Agreement when it construed the nature of the advances made by Philex.

IV. The Court of Appeals erred in refusing to delve upon the issue of the propriety of the bad debts write-off.[14] Petitioner insists that in determining the nature of its business relationship with Baguio Gold, we should not only rely on the “Power of Attorney”, but also on the subsequent “Compromise with Dation in Payment” and “Amended Compromise with Dation in Payment” that the parties executed in 1982. These documents, allegedly evinced the parties’ intent to treat the advances and payments as a loan and establish a creditor-debtor relationship between them. The petition lacks merit. The lower courts correctly held that the “Power of Attorney” is the instrument that is material in determining the true nature of the business relationship between petitioner and Baguio Gold. Before resort may be had to the two compromise agreements, the parties’ contractual intent must first be discovered from the expressed language of the primary contract under which the parties’ business relations were founded. It should be noted that the compromise agreements were mere collateral documents executed by the parties pursuant to the termination of their business relationship created under the “Power of Attorney”. On the other hand, it is the latter which established the juridical relation of the parties and defined the parameters of their dealings with one another. The execution of the two compromise agreements can hardly be considered as a subsequent or contemporaneous act that is reflective of the parties’ true intent. The compromise agreements were executed eleven years after the “Power of Attorney” and merely laid out a plan or procedure by which petitioner could recover the advances and payments it made under the “Power of Attorney”. The parties entered into the compromise agreements as a consequence of the dissolution of their business relationship. It did not define that relationship or indicate its real character. An examination of the “Power of Attorney” reveals that a partnership or joint venture was indeed intended by the parties. Under a contract of partnership, two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves.[15] While a corporation,

like petitioner, cannot generally enter into a contract of partnership unless authorized by law or its charter, it has been held that it may enter into a joint venture which is akin to a particular partnership:

operation of mines, as well as the manager’s account which is comprised of P11M in funds and property and petitioner’s “compensation” as manager that cannot be paid in cash.

The legal concept of a joint venture is of common law origin. It has no precise legal definition, but it has been generally understood to mean an organization formed for some temporary purpose. x x x It is in fact hardly distinguishable from the partnership, since their elements are similar – community of interest in the business, sharing of profits and losses, and a mutual right of control. x x x The main distinction cited by most opinions in common law jurisdictions is that the partnership contemplates a general business with some degree of continuity, while the joint venture is formed for the execution of a single transaction, and is thus of a temporary nature. x x x This observation is not entirely accurate in this jurisdiction, since under the Civil Code, a partnership may be particular or universal, and a particular partnership may have for its object a specific undertaking. x x x It would seem therefore that under Philippine law, a joint venture is a form of partnership and should be governed by the law of partnerships. The Supreme Court has however recognized a distinction between these two business forms, and has held that although a corporation cannot enter into a partnership contract, it may however engage in a joint venture with others. x x x (Citations omitted) [16]

However, petitioner asserts that it could not have entered into a partnership agreement with Baguio Gold because it did not “bind” itself to contribute money or property to the project; that under paragraph 5 of the agreement, it was only optional for petitioner to transfer funds or property to the Sto. Niño project “(w)henever the MANAGERS shall deem it necessary and convenient in connection with the MANAGEMENT of the STO. NIÑO MINE.”[18]

Perusal of the agreement denominated as the “Power of Attorney” indicates that the parties had intended to create a partnership and establish a common fund for the purpose. They also had a joint interest in the profits of the business as shown by a 50-50 sharing in the income of the mine. Under the “Power of Attorney”, petitioner and Baguio Gold undertook to contribute money, property and industry to the common fund known as the Sto. Niño mine.[17] In this regard, we note that there is a substantive equivalence in the respective contributions of the parties to the development and operation of the mine. Pursuant to paragraphs 4 and 5 of the agreement, petitioner and Baguio Gold were to contribute equally to the joint venture assets under their respective accounts. Baguio Gold would contribute P11M under its owner’s account plus any of its income that is left in the project, in addition to its actual mining claim. Meanwhile, petitioner’s contribution would consist of its expertise in the management and

The wording of the parties’ agreement as to petitioner’s contribution to the common fund does not detract from the fact that petitioner transferred its funds and property to the project as specified in paragraph 5, thus rendering effective the other stipulations of the contract, particularly paragraph 5(c) which prohibits petitioner from withdrawing the advances until termination of the parties’ business relations. As can be seen, petitioner became bound by its contributions once the transfers were made. The contributions acquired an obligatory nature as soon as petitioner had chosen to exercise its option under paragraph 5. There is no merit to petitioner’s claim that the prohibition in paragraph 5(c) against withdrawal of advances should not be taken as an indication that it had entered into a partnership with Baguio Gold; that the stipulation only showed that what the parties entered into was actually a contract of agency coupled with an interest which is not revocable at will and not a partnership. In an agency coupled with interest, it is the agency that cannot be revoked or withdrawn by the principal due to an interest of a third party that depends upon it, or the mutual interest of both principal and agent.[19] In this case, the non-revocation or non-withdrawal under paragraph 5(c) applies to the advances made by petitioner who is supposedly the agent and not the principal under the contract. Thus, it cannot be inferred from the stipulation that the parties’ relation under the agreement is one of agency coupled with an interest and not a partnership. Neither can paragraph 16 of the agreement be taken as an indication that the relationship of the parties was one of agency and not a partnership. Although the said provision

states that “this Agency shall be irrevocable while any obligation of the PRINCIPAL in favor of the MANAGERS is outstanding, inclusive of the MANAGERS’ account,” it does not necessarily follow that the parties entered into an agency contract coupled with an interest that cannot be withdrawn by Baguio Gold. It should be stressed that the main object of the “Power of Attorney” was not to confer a power in favor of petitioner to contract with third persons on behalf of Baguio Gold but to create a business relationship between petitioner and Baguio Gold, in which the former was to manage and operate the latter’s mine through the parties’ mutual contribution of material resources and industry. The essence of an agency, even one that is coupled with interest, is the agent’s ability to represent his principal and bring about business relations between the latter and third persons.[20] Where representation for and in behalf of the principal is merely incidental or necessary for the proper discharge of one’s paramount undertaking under a contract, the latter may not necessarily be a contract of agency, but some other agreement depending on the ultimate undertaking of the parties.[21] In this case, the totality of the circumstances and the stipulations in the parties’ agreement indubitably lead to the conclusion that a partnership was formed between petitioner and Baguio Gold. First, it does not appear that Baguio Gold was unconditionally obligated to return the advances made by petitioner under the agreement. Paragraph 5 (d) thereof provides that upon termination of the parties’ business relations, “the ratio which the MANAGER’S account has to the owner’s account will be determined, and the corresponding proportion of the entire assets of the STO. NINO MINE, excluding the claims” shall be transferred to petitioner.[22] As pointed out by the Court of Tax Appeals, petitioner was merely entitled to a proportionate return of the mine’s assets upon dissolution of the parties’ business relations. There was nothing in the agreement that would require Baguio Gold to make payments of the advances to petitioner as would be recognized as an item of obligation or “accounts payable” for Baguio Gold. Thus, the tax court correctly concluded that the agreement provided for a distribution of assets of the Sto. Niño mine upon termination, a provision that is more consistent with a partnership than a creditor-debtor relationship. It should

be pointed out that in a contract of loan, a person who receives a loan or money or any fungible thing acquires ownership thereof and is bound to pay the creditor an equal amount of the same kind and quality.[23] In this case, however, there was no stipulation for Baguio Gold to actually repay petitioner the cash and property that it had advanced, but only the return of an amount pegged at a ratio which the manager’s account had to the owner’s account. In this connection, we find no contractual basis for the execution of the two compromise agreements in which Baguio Gold recognized a debt in favor of petitioner, which supposedly arose from the termination of their business relations over the Sto. Nino mine. The “Power of Attorney” clearly provides that petitioner would only be entitled to the return of a proportionate share of the mine assets to be computed at a ratio that the manager’s account had to the owner’s account. Except to provide a basis for claiming the advances as a bad debt deduction, there is no reason for Baguio Gold to hold itself liable to petitioner under the compromise agreements, for any amount over and above the proportion agreed upon in the “Power of Attorney”. Next, the tax court correctly observed that it was unlikely for a business corporation to lend hundreds of millions of pesos to another corporation with neither security, or collateral, nor a specific deed evidencing the terms and conditions of such loans. The parties also did not provide a specific maturity date for the advances to become due and demandable, and the manner of payment was unclear. All these point to the inevitable conclusion that the advances were not loans but capital contributions to a partnership. The strongest indication that petitioner was a partner in the Sto Niño mine is the fact that it would receive 50% of the net profits as “compensation” under paragraph 12 of the agreement. The entirety of the parties’ contractual stipulations simply leads to no other conclusion than that petitioner’s “compensation” is actually its share in the income of the joint venture. Article 1769 (4) of the Civil Code explicitly provides that the “receipt by a person of a share in the profits of a business is prima facie evidence that he is a partner in the business.” Petitioner asserts, however, that no such inference can be drawn against it since its share in the profits of the Sto Niño project was in the nature of

compensation or “wages of an employee”, under the exception provided in Article 1769 (4) (b).[24] On this score, the tax court correctly noted that petitioner was not an employee of Baguio Gold who will be paid “wages” pursuant to an employer-employee relationship. To begin with, petitioner was the manager of the project and had put substantial sums into the venture in order to ensure its viability and profitability. By pegging its compensation to profits, petitioner also stood not to be remunerated in case the mine had no income. It is hard to believe that petitioner would take the risk of not being paid at all for its services, if it were truly just an ordinary employee. Consequently, we find that petitioner’s “compensation” under paragraph 12 of the agreement actually constitutes its share in the net profits of the partnership. Indeed, petitioner would not be entitled to an equal share in the income of the mine if it were just an employee of Baguio Gold.[25] It is not surprising that petitioner was to receive a 50% share in the net profits, considering that the “Power of Attorney” also provided for an almost equal contribution of the parties to the St. Nino mine. The “compensation” agreed upon only serves to reinforce the notion that the parties’ relations were indeed of partners and not employer-employee. All told, the lower courts did not err in treating petitioner’s advances as investments in a partnership known as the Sto. Nino mine. The advances were not “debts” of Baguio Gold to petitioner inasmuch as the latter was under no unconditional obligation to return the same to the former under the “Power of Attorney”. As for the amounts that petitioner paid as guarantor to Baguio Gold’s creditors, we find no reason to depart from the tax court’s factual finding that Baguio Gold’s debts were not yet due and demandable at the time that petitioner paid the same. Verily, petitioner pre-paid Baguio Gold’s outstanding loans to its bank creditors and this conclusion is supported by the evidence on record.[26] In sum, petitioner cannot claim the advances as a bad debt deduction from its gross income. Deductions for income tax purposes partake of the nature of tax exemptions and are strictly construed against the taxpayer, who must prove by convincing evidence that he is entitled to the deduction claimed.[27] In this case, petitioner failed to substantiate its assertion that the advances were

subsisting debts of Baguio Gold that could be deducted from its gross income. Consequently, it could not claim the advances as a valid bad debt deduction. WHEREFORE, the petition is DENIED. The decision of the Court of Appeals in CA-G.R. SP No. 49385 dated June 30, 2000, which affirmed the decision of the Court of Tax Appeals in C.T.A. Case No. 5200 is AFFIRMED. Petitioner Philex Mining Corporation is ORDERED to PAY the deficiency tax on its 1982 income in the amount of P62,811,161.31, with 20% delinquency interest computed from February 10, 1995, which is the due date given for the payment of the deficiency income tax, up to the actual date of payment. SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES Associate Justice

MINITA V. CHICO-NAZARIO B. NACHURA Associate Justice Associate Justice

ANTONIO EDUARDO

RUBEN T. REYES

THIRD DIVISION [G.R. No. 114087. October 26, 1999] PLANTERS ASSOCIATION OF SOUTHERN NEGROS INC., petitioner, vs. HON. BERNARDO T. PONFERRADA,

PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL, BRANCH 42; HONORABLE SECRETARY OF LABOR & EMPLOYMENT; BINALBAGAN – ISABELA SUGAR COMPANY, INC., and NATIONAL CONGRESS OF UNIONS IN THE SUGAR INDUSTRY OF THE PHILIPPINES (NACUSIP), respondents. DECISION PURISIMA, J.:

produced, to be pooled into a fund for subsequent distribution as bonuses to sugar workers.[8]

“Nowhere is the economic disparity between labor and capital so evident than in the sugar industry. While it is the lowly farm worker who must toil in the field under the harshness of conditions, it is the planter who gets to enjoy more the fruits of production. While the planter lives in the comfort of his palatial home, the living condition of the sugar farm worker more often than not defies the basic tenets of human dignity.”[1] At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court seeking to review and set aside the August 8, 1993 Decision[2] and January 21, 1994 Resolution[3] of the Regional Trial Court of Negros Occidental, Branch 42,[4] Bacolod City, in Civil Case No. 6894 for Declaratory Relief.

Thus, before R.A. No.6982, there were two sets of beneficiaries under the social amelioration program in the sugar industry:

Private respondent Binalbagan-Isabela Sugar Company (BISCOM) is engaged in the business of, among others, milling raw sugar cane of various sugar plantations in their milling district. For the crop year 1991–1992, the sugar farm workers’ share in BISCOM, under R.A. No. 809 amounted to P30, 590,086.92.[10]

1) Beneficiaries under R.A. No. 809 and P.D. No. 621; and

Under P.D. No.621, the workers’ benefit for the same crop year amounted to P2,233,285.26, computed as follows:

2) Beneficiaries under P.D. No. 621 only. (In milling districts where the annual gross production is less than 150,000 piculs)

Gross production of BISCOM

On May 24, 1991, Republic Act No. 6982 took effect. It imposed a lien of P5.00 per picul on the gross production of sugar beginning sugar crop year 1991-1992, with an automatic additional lien of P1.00 for every two (2) years for the succeeding ten (10) years from the effectivity of the Act subject to the discretion of the Secretary of Labor and Employment and upon recommendation of the Sugar Tripartite Council.[9]

Less: 30% BISCOM Share

Directly addressing the effect of the new P5.00 per picul lien vis-à-vis the two previously existing laws, Section 12 of R.A. No. 6982, provides:

1,595,184.46

(In Piculs) 478,555.33

70% Planter Share Multiplied by P2.00 lien TOTAL

2,116,626.13 x

P2.00

P2,233,258.26[11]

But considering that the P2.00 lien under P.D. No.621 is obviously lesser than the P5.00 lien under R.A. No.6982, the same was no longer imposed by BISCOM pursuant to R.A. No.6982.

The antecedent facts that matter can be culled as follows: Prior to the passage of Republic Act No. 6982, entitled An Act Strengthening the Sugar Amelioration Program in the Sugar Industry, Providing the Mechanics for its Implementation, and for other Purposes, there were two principal laws providing additional financial benefits to sugar farm workers, namely: Republic Act No. 809 and Presidential Decree No. 621. Republic Act No. 809[5] (implementable in milling districts with an annual gross production of 150,000 piculs or more), institutionalized production sharing scheme, in the absence of any private agreement between the planters and farm workers, depending on the mill’s total production for each immediately preceding crop year; and specifically providing that any increase in the planters’ share shall be divided in the following manner: 40% of the increase shall accrue to the planter and 60% to the farm workers.[6] On the other hand, Presidential Decree No. 621,[7] as amended, charged a lien of P2.00 per picul on all sugar

“Section. 12. Benefits under Republic Act No. 809 and P.D. 621, as Amended. - All liens and other forms of production sharing in favor of the workers in the sugar industry under Republic Act No. 809 and Presidential Decree No. 621, as amended, are hereby substituted by the benefits under this Act: Provided, That cases arising from such laws pending in the courts or administrative bodies at the time of the effectivity of this Act shall not be affected thereby.

Hence, before R.A. No.6982 took effect, the total farm workers’ benefit was:

In connection therewith, Section 14 of the same Act further states:

Upon the effectivity of R.A. No.6982, the total workers’ benefit in BISCOM’s milling district was computed as follows:

“Section 14. Non-Diminution of Benefits.-The provisions of Section 12 hereof notwithstanding, nothing in this Act shall be construed to reduce any benefit, interest, right or participation enjoyed by the workers at the time of the enactment of this Act, and no amount received by any beneficiary under this Act shall be subject to any form of taxation.”

Under R.A. No. 809

P30,590,086.92

Under P.D. No. 621

2,233,258.16

P32,823,345.18

Gross Production of BISCOM

1,595,184.46

(In Piculs) Less: 30% BISCOM share 70% Planter Share

478,555.34 1,116,629.12

Multiplied by P5.00 lien

x

P5.00

TOTAL FARMWORKERS’ BENEFIT P5,583,145.61[12] Meanwhile, pending a definite ruling on the effect of R.A. No. 6982 to R.A. No. 809 and P.D. No. 621, respondent Secretary of Labor issued Department Order No.2 (1992),[13] directing, inter alia, the three milling districts in Negros Occidental, namely: SONDECO, San Carlos and herein private respondent BISCOM, to continue implementing R.A. No.809 per recommendation of the Sugar Tripartite Council. Consequently, the petitioner, Planters Association of Southern Negros Inc. (PASON), an organization of sugar farm plantation owners milling with private respondent BISCOM, filed with the respondent court a Petition for Declaratory Relief against the implementation of the said D.O. No. 2. It theorized that in view of the substitution of benefits under Section 12 of R.A. No. 6982, whatever monetary rewards previously granted to the sugar farm workers under R.A. No. 809 and P.D. No. 621 were deemed totally abrogated and/or superseded.[14] On August 18, 1993, the respondent Court came out with the assailed Decision; the dispositive portion of which held: “WHEREFORE, premises considered, the Court hereby declares: 1. That the benefits under RA 6982 do not and cannot supersede or substitute the benefits under RA 809 in milling districts where the latter law was already in implementation at the time of the effectivity of RA 6982; and 2. That the sugarcane workers in the BISCOM milling district shall continue to enjoy the benefits under RA 809 in addition to the benefits that will henceforth be provided for by RA 6982 now being implemented by private respondent. SO ORDERED.”[15] With the denial of its motion to reconsider the aforesaid Decision, petitioner found its way to this Court via the present petition. The petition is not visited by merit.

From a cursory reading of Section 12[16] of R.A. No. 6892, the inevitable conclusion would be that the benefits under R.A. No.809 and P.D. No. 621 have been superseded by those granted under the new law. This substitution, however, appears to be qualified by Section 14[17] which disallows substitution if its effect would be to diminish or reduce whatever financial benefits the sugar farm workers are receiving under existing laws at the time of the effectivity of R.A. No. 6289. How then should Section 12 of R.A. No. 6982 be interpreted in light of the qualification under Section 14 of the same Act? Petitioner insists that the word “substitution” in Section 12 should be taken in its literal sense considering that the intention of Congress to effect a substitution of benefits is clear and unequivocal. Under this interpretation of “unqualified substitution”, the sugar farm workers in the subject milling district will receive only P5,583,145.61 under R.A. No.6289, as against the P32,823,345.18 to which the workers were entitled under P.D. 621 and R.A. No. 809. So also, invoking the Opinion[18] “It is believed that the benefits conferred upon labor by RA 809 have been superseded by those granted to it under RA 6982. This conclusion is inescapable from a reading of Section 12 of the latter law, as well as its repealing clause (Sec. 16). Indeed, the production-sharing scheme decreed in RA 809 cannot remain in force upon the effectivity of the new production-sharing procedure prescribed in RA 6982; otherwise, sugar workers would be receiving two kinds of financial benefits simultaneously. The substitution, however, of sugar workers benefits under RA 809 by RA 6982 is qualified by Section 14 of the latter. This section provides that if the effect of such substitution will be to diminish or reduce whatever monetary rewards sugar industry laborers are receiving under RA 809, then such workers shall continue to be entitled to the benefits provided in such law. Expressed otherwise the productionsharing scheme in RA 6982 does not apply to sugar industry workers in milling districts where its application would be financially disadvantageous to them, in which case the existing production-sharing agreement based on RA 809 shall still govern.” (Opinion No. 115, S. 1992 dated September 2, 1992, signed by Justice Secretary Franklin

Drilon.)18 of the Secretary of Justice, petitioner contends, in the alternative, that the application of R.A. No. 809 can be maintained but in no case should the benefits thereunder be implemented in addition to R.A. No. 6982. Applying this interpretation, the share of the sugar farm workers would amount to P30,590,086.92. On the other hand, under the interpretation espoused by the public respondent (that the benefits conferred by R.A. No.6982 should complement those granted by R.A. No. 809 which cannot be superseded by the former Act since Section 14 thereof prohibits diminution of benefits), the total worker’s benefit would be as follows: R.A. No. 809

P30,590,086.92

R.A. No. 6982

__,583,145.61 P36,173,232.53

It is a well-settled rule of legal hermeneutics that each provision of law should be construed in connection with every other part so as to produce a harmonious whole and every meaning to be given to each word or phrase is ascertained from the context of the body of the statute.[19] Ut magis valeat quam pereat.[20] Consequently, laws are given a reasonable construction such that apparently conflicting provisions are allowed to stand and given effect by reconciling them, reference being had to the moving spirit behind the enactment of the statute.[21] Applying the abovestated doctrine, Section 12 therefore, which apparently mandates a total substitution by R. A. No. 6982 of all the benefits under R.A. No. 809 and P.D. No. 621 existing at the time of the effectivity of R.A. No. 6982, can not be construed apart from Section 14 which prohibits such substitution if the effect thereof would be to reduce any benefit, interest, right or participation enjoyed by the worker at the time R.A. No. 6982 took effect. The Court finds as untenable the interpretation of the petitioner based an unqualified substitution of the benefits under R.A. No. 809 and P.D. No. 621 by the monertary rewards conferred by R.A. No. 6982 in the amount of P5,583,145.61 as against the P36,173,232.53 previously enjoyed by the sugar farm workers under the former laws. It bears stressing that the primordial objective behind the enactment of R.A. No. 6982 was to augment the income of sugar workers by establishing a social amelioration

program in cases where sugar farm workers had none, and at the same time, to improve whatever amelioration schemes already existing in the sugar districts concerned.[22] In recognition of the avowed guarantee under Section 3, Article 13 of the Constitution to uphold the right of workers to a just share in the fruits of production, the policy of R.A. No. 6982 states: “Section 1. Policy. – It is the policy of the State to further strengthen the rights of workers in the sugar industry to their just share in the fruits of production by augmenting their income and, among other schemes, institutionalizing the mechanism among the partners in the sugar industry to enable the workers and their families to enjoy a decent living.” (Emphasis supplied) The foregoing studiedly considered, there can be no other construction that would best promote the welfare of the sugar farm workers, than the interpretation of the public respondent, implementing R.A. No. 6982 as a complement to R.A. No. 809.

thereto had always provided for an increase in wages and benefits. The reason is obvious. Amidst the rapidly changing, if not worsening, economic conditions prevalent in the industry, the sugar worker can hardly cope with his meager income to lean on. Equally wanting of merit is the alleged double recovery under the interpretation subscribed by the public respondent. Note that had not R.A. No. 6982 been enacted, sugar farmworkers would be entitled to a total a share of P32,823,345.18 under R.A. No. 809 and P.D. No. 621; whereas under the alternative view of the petitioner, maintaining the benefits (P30, 509,086.92) granted by R.A. No. 809 to the exclusion of the benefits provided by R.A. No. 6982, sugar farm workers stand to lose the difference of P2,233,258.56, from a total of P32,823,345.18 which they were entitled before RA 6982 took effect. Certainly, such a disadvantageous construction cannot be countenanced, being violative of the non-diminution principle under Section 14 of R.A. No. 6982.

Citing the floor deliberations of Congress,[23] petitioner insists that the non-diminution of benefits referred to in Section 14 pertains only to pending claims of the workers at the time of the effectivity of the Act. Stated differently, it is contended that the benefits to which the workers are entitled under R.A. No. 809 and P.D. No. 601 can be validly diminished by virtue of the application of R.A. No. 6982, because the non-diminution provision in Section 14 thereof refers to pending claims accruing under P.D. 621 and R.A. No. 809, and not to the very benefits previously enjoyed by the workers under the said laws. With this construction, from a total benefit of P32,823,345.18 conferred by R.A. No. 809 and P.D. No. 621, the sugar workers would only be entitled to a meager amount of P5,583,145.61.

In view of the foregoing, the addition of the monetary rewards under R.A. No. 6982 to the benefits granted by R.A. No. 809, is what is called for in the case under consideration. While it is true that “addition” is different from “substitution”, the circumstances involving subject milling districts (where the sugar farm workers are enjoying benefits both from R.A. No. 809 and P.D. No. 621 prior to the effectivity of R.A. No. 6982), necessitate the grant of pecuniary advantage under R.A. No. 809 as a complement to R.A. No. 6982. Otherwise, the workers would suffer a diminution of benefits. Therefore, the increase of monetary advantage in favor of the sugar farm workers, as a consequence of such interpretation, is merely incidental to the application of the non-diminution policy of R.A. No. 6982, a labor provision which should be liberally construed to further its purpose.[25]

The contention is barren of sustainable merit. To limit the application of the non-diminution principle only to pending claims would be repulsive not only to the policy of the Act but also to the salutory provisions of the Constitution. Verily, the glaring disparity of P27,240,199.57 between P32,823,345.18 and P5,583,145.61 would not warrant such an interpretation. As aptly ratiocinated[24] by the respondent Court, the evolution of legislation in the sugar industry had always had for its foremost concern the advancement of the lot of the sugar farm worker. Hence, through the years every law or decree enacted pursuant

Neither does the Court find convincing the interpretation proposed by private respondent BISCOM. While maintaining the application of R.A. No. 809 and P.D. No. 621 (where the total share of the workers is P32,823,345.18), and disregarding R.A. No. 6892, would be beneficial to the sugar farm workers, to the mind of the Court, the assailed construction of the public respondent (where the total share of the workers is P36,173,232.53), would be more in keeping with the spirit of R.A. No. 6982 which is: to improve the living condition of workers in the sugar industry. Between two statutory interpretations, that

which better serves the purpose of the law should prevail.[26] Premises studiedly considered, the Court is of the ineluctable conclusion, and so holds, that the respondent Court ventured not in any judicial legislation but merely gave life to the avowed policy of the State under Section 18, Article 2 of the 1987 Constitution, which states: “Sec. 18. The state affirms labor as a primary social economic force. It shall guarantee the rights of workers and promote their welfare.” WHEREFORE, the Petition is DENIED; and the assailed Decision in Civil Case No. 6894, dated August 18, 1993, of the Regional Trial Court of Negros Occidental, Branch 42, Bacolod City, AFFIRMED. No pronouncement as to costs. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and GonzagaReyes, JJ., concur.

SECOND DIVISION [G.R. No. 125297. June 6, 2003] ELVIRA YU OH, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review on certiorari of the decision[1] of the Court of Appeals in CA-G.R. No. CR No. 16390, promulgated on January 30, 1996, affirming the conviction of petitioner Elvira Yu Oh by the Regional Trial Court (RTC), Branch 99, Quezon City and the resolution dated May 30, 1996 which denied her motion for reconsideration. The facts as borne by the records are as follows: Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc., a company engaged in jewelry trading. Due to her failure to pay the purchase price, Solid Gold filed civil cases[2] against her for specific performance before the Regional Trial Court of Pasig. On September 17, 1990, petitioner and Solid Gold, through its

general manager Joaquin Novales III, entered into a compromise agreement to settle said civil cases.[3] The compromise agreement, as approved by the trial court, provided that petitioner shall issue a total of ninety-nine post-dated checks in the amount of P50,000.00 each, dated every 15th and 30th of the month starting October 1, 1990 and the balance of over P1 million to be paid in lump sum on November 16, 1994 which is also the due date of the 99th and last postdated check. Petitioner issued ten checks at P50,000.00 each, for a total of P500,000.00, drawn against her account at the Equitable Banking Corporation (EBC), Grace Park, Caloocan City Branch. Novales then deposited each of the ten checks on their respective due dates with the Far East Bank and Trust Company (FEBTC). However, said checks were dishonored by EBC for the reason “Account Closed.” Dishonor slips were issued for each check that was returned to Novales.[4] On October 5, 1992, Novales filed ten separate Informations, docketed as Criminal Cases Nos. 92-26243 to 92-36252 before the RTC of Quezon City charging petitioner with violation of Batas Pambansa Bilang 22, otherwise known as the Bouncing Checks Law.[5] Except for the dates and the check numbers, the Informations uniformly allege: That on or about the … in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to JOAQUIN P. LOVALES III to apply on account or for value Equitable Banking Corp. Grace Park Caloocan Branch Check No. … dated … payable to SOLID GOLD INTERNATIONAL TRADERS, INC. in the amount of P50,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said SOLID GOLD INTERNATIONAL TRADERS, INC. the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.[6]

The cases were consolidated and subsequently raffled to Branch 99 of the said RTC. Upon arraignment, accused pleaded not guilty.[7] Trial then ensued. On December 22, 1993, the RTC rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused GUILTY of ten counts of violation of BP 22 and hereby sentences her to a penalty of one year imprisonment for each count, or a total of ten years, to be served in accordance with the limitation prescribed in par. 4, Article 70 of the Revised Penal Code and to indemnify complainant the amount of the checks in their totality, or in the amount of P500,000.00.

NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT OR IN EXCESS OF JURISDICTION. II THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING IN FAVOR OF ACCUSED-APPELLANT THE FACT THAT NO NOTICE OF DISHONOR HAD BEEN GIVEN HER AS DRAWER OF THE DISHONORED “CHECKS” PURSUANT TO THE REQUIREMENT EXPRESSLY PROVIDED UNDER BATAS PAMBANSA BILANG 22. III

SO ORDERED.[8] Petitioner appealed to the Court of Appeals alleging that: the RTC has no jurisdiction over the offense charged in the ten informations; it overlooked the fact that no notice of dishonor had been given to the appellant as drawer of the dishonored checks; it failed to consider that the reason of “closed account” for the dishonor of the ten checks in these cases is not the statutory cause to warrant prosecution, much more a conviction, under B.P. Blg. 22; it failed to consider that there is only one act which caused the offense, if any, and not ten separate cases; and it disregarded the definition of what a ‘check’ is under Sec. 185 of the Negotiable Instruments Law.[9] Finding the appeal to be without merit, the Court of Appeals affirmed the decision of the trial court with costs against appellant. Hence, herein petition raising the following errors: I THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING THE JURISDICTIONAL ISSUE IN FAVOR OF THE ACCUSED-APPELLANT BY UNJUSTLY DEPRIVING HER OF THE LEGAL BENEFITS OF GIVING RETROACTIVE EFFECT TO THE PROVISIONS OF R.A. NO. 7691 EXPANDING THE JURISDICTION OF THE INFERIOR COURTS TO COVER THE OFFENSES INVOLVED IN THESE CASES PURSUANT TO ART. 22 OF THE REVISED PENAL CODE, THUS IN EFFECT RENDERING THE JUDGMENT OF CONVICTION PROMULGATED BY THE TRIAL COURT BELOW AND AFFIRMED BY THE COURT OF APPEALS PATENTLY

THAT THE COURT OF APPEALS ERRED IN CONSTRUING THE PROVISIONS OF BATAS PAMBANSA BILANG 22 CONTRARY TO THE WELLESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT “PENAL STATUTES, SUBSTANTIVE AND REMEDIAL OR PROCEDURAL, ARE, BY THE CONSECRATED RULE, CONSTRUED STRICTLY AGAINST THE STATE, OR LIBERALLY IN FAVOR OF THE ACCUSED” AND THAT “IT IS ALWAYS THE DUTY OF THE COURT TO RESOLVE THE CIRCUMSTANCES OF EVIDENCE UPON A THEORY OF INNOCENCE RATHER THAN UPON A THEORY OF GUILT WHERE IT IS POSSIBLE TO DO SO”, AND IN SO DOING THE DECISION APPEALED FROM INDULGED ITSELF IN “JUDICIAL LEGISLATION” TO FAVOR THE PROSECUTION AND TO WORK GRAVE INJUSTICE TO THE ACCUSED. Simply worded, the issues of this case may be stated as follows: (1) whether or not the appellate court erred in not granting retroactive effect to Republic Act No. 7691[10] in view of Art. 22 of the Revised Penal Code (RPC); (2) whether or not notice of dishonor is dispensable in this case; and (3) whether or not the appellate court erred in construing B.P. Blg. 22. We will resolve the first and third issues before considering the second issue. First issue – Whether or not the Court of Appeals erred in not giving retroactive effect to R.A. 7690 in view of Article 22 of the RPC.

Petitioner argues that: the failure of the appellate court to give retroactive application to R.A. 7691 is a violation of Art. 22 of the Revised Penal Code which provides that penal laws shall have retroactive effect insofar as they favor the person guilty of the felony; R.A. 7691 is a penal law in the sense that it affects the jurisdiction of the court to take cognizance of criminal cases; taken separately, the offense covered by each of the ten Informations in this case falls within the exclusive original jurisdiction of the Municipal Trial Court under Sec. 2 of R.A. 7691; and the Court of Appeals is guilty of judicial legislation in stating that after the arraignment of petitioner, said cases could no longer be transferred to the MTC without violating the rules on double jeopardy, because that is not so provided in R.A. 7691.[11] The Solicitor General, in its Comment, counters that the arguments of petitioner are baseless contending that: penal laws are those which define crimes and provides for their punishment; laws defining the jurisdiction of courts are substantive in nature and not procedural for they do not refer to the manner of trying cases but to the authority of the courts to hear and decide certain and definite cases in the various instances of which they are susceptible; R.A. No. 7691 is a substantive law and not a penal law as nowhere in its provisions does it define a crime neither does it provide a penalty of any kind; the purpose of enacting R.A. No. 7691 is laid down in the opening sentence thereof as “An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court” whereby it reapportions the jurisdiction of said courts to cover certain civil and criminal case, erstwhile tried exclusively by the Regional Trial Courts; consequently, Art. 22 of the RPC finds no application to the case at bar; jurisdiction is determined by the law in force at the time of the filing of the complaint, and once acquired, jurisdiction is not affected by subsequent legislative enactments placing jurisdiction in another tribunal; in this case, the RTC was vested with jurisdiction to try petitioner’s cases when the same were filed in October 1992; at that time, R.A. No. 7691 was not yet effective;[12] in so far as the retroactive effect of R.A. No. 7691 is concerned, that same is limited only to pending civil cases that have not reached pre-trial stage as provided for in Section 7 thereof and as clarified by this Court in People vs. Yolanda Velasco[13], where it was held: “[a] perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an

express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the RTC prior to its effectivity.”[14] On this point, the Court fully agrees with the Solicitor General and holds that Article 22 of the Revised Penal Code finds no application to the case at bar. Said provision reads: ART. 22. Retroactive effect of penal laws. – Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving sentence. A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and establishes penalties for its violations. It also defines crime, treats of its nature and provides for its punishment.[15] R.A. No. 7691 does not prohibit certain acts or provides penalties for its violation; neither does it treat of the nature of crimes and its punishment. Consequently, R.A. No. 7691 is not a penal law, and therefore, Art. 22 of the RPC does not apply in the present case. B. P. Blg. 22, which took effect on April 24, 1979, provides the penalty of imprisonment of not less than thirty days but not more than one year or by a fine of not less than but not more then double the amount of the check which fine shall in no case exceed P200,000.00, or both such fine and imprisonment at the discretion of the court. R.A. No. 7691 which took effect on June 15, 1994, amended B.P. Blg. 129, and vested on the Metropolitan, Municipal and Municipal Circuit Trial Courts jurisdiction to try cases punishable by imprisonment of not more than six (6) years.[16] Since R.A. No. 7691 vests jurisdiction on courts, it is apparent that said law is substantive.[17] In the case of Cang vs. Court of Appeals,[18] this Court held that “jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court.”[19] R.A. No. 7691 was not yet in force at the time of the commencement of the cases in the trial court. It took effect only during the pendency of the

appeal before the Court of Appeals.[20] There is therefore no merit in the claim of petitioner that R.A. No. 7691 should be retroactively applied to this case and the same be remanded to the MTC. The Court has held that a “law vesting additional jurisdiction in the court cannot be given retroactive effect.”[21] Third issue – Whether or not the Court of Appeals erroneously construed B.P. Blg. 22. Petitioner insists that: penal statutes must be strictly construed and where there is any reasonable doubt, it must always be resolved in favor of the accused;[22] the Court of Appeals, in construing that B.P. Blg. 22 embraces cases of “no funds” or “closed accounts” when the express language of B.P. Blg. 22 penalizes only the issuance of checks that are subsequently dishonored by the drawee bank for “insufficiency” of funds or credit, has enlarged by implication the meaning of the statute which amounts to judicial legislation;[23] a postdated check, not being drawn payable on demand, is technically not a special kind of a bill of exchange, called check, but an ordinary bill of exchange payable at a fixed date, which is the date indicated on the face of the postdated check, hence, the instrument is still valid and the obligation covered thereby, but only civilly and not criminally;[24] the trial court also erroneously cited a portion in the case of Lozano vs. Martinez[25] that the “language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value,” since the same is mere obiter dictum;[26] in the interpretation of the meaning of a “check”, where the law is clear and unambiguous, the law must be taken as it is, devoid of judicial addition or subtraction.[27] The Solicitor General counters that a postdated check is still a check and its being a postdated instrument does not necessarily make it a bill of exchange “payable at a fixed or determinable future time” since it is still paid on demand on the date indicated therein or thereafter just like an ordinary check.[28] It also points out that the doctrine laid down in Lozano vs. Martinez was reiterated in People vs. Nitafan,[29] hence, it can no longer be argued that the statement in the case of Lozano regarding the scope of “checks” is mere obiter dictum.

Again, we agree with the Solicitor General and find petitioner’s claim to be without merit. The rationale behind B.P. Blg. 22 was initially explained by the Court in the landmark case of Lozano vs. Martinez[30] where we held that: The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment … The thrust of the law is to prohibit, under pain of penal sanctions, the making or worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punished the act not as an offense against property, but an offense against public order.[31] ... The effects of the issuance of a worthless check transcend the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest.[32] The same is reiterated in Cueme vs. People[33] where we pronounced that: . . . B.P. Blg. 22 was purposely enacted to prevent the proliferation of worthless checks in the mainstream of daily business and to avert not only the undermining of the banking system of the country but also the infliction of damage and injury upon trade and commerce occasioned by the indiscriminate issuances of such checks. By its very nature, the offenses defined under B.P. Blg. 22 are against public interest.[34] In Recuerdo vs. People, this Court also held that the terms and conditions surrounding the issuance of the checks are irrelevant since its primordial intention is to ensure the stability and commercial value of checks as being virtual substitutes for currency.[35]

Petitioner’s claim that cases of “closed accounts” are not included in the coverage of B.P. Blg. 22 has no merit considering the clear intent of the law, which is to discourage the issuance of worthless checks due to its harmful effect to the public. This Court, in Lozano vs. Martinez, was explicit in ruling that the language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value.[36]

1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and

In People vs. Nitafan,[37] the Supreme Court reiterated this point and held that:

3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.[40]

B.P. Blg. 22 … does not distinguish but merely provides that “[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank … which check is subsequently dishonored … shall be punished by imprisonment … Ubi lex non distinguit nec nos distinguere debemus.

For liability to attach under B.P. Blg. 22, it is not enough that the prosecution establishes that checks were issued and that the same were subsequently dishonored. The prosecution must also prove that the issuer, at the time of the check’s issuance, had knowledge that he did not have enough funds or credit in the bank of payment thereof upon its presentment.[41]

But even if We retrace the enactment of the “Bouncing Check Law” to determine the parameters of the concept of “check”, we can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks.[38]

Since the second element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg. 22 created a prima facie presumption of such knowledge, as follows:

In this light, it is easy to see that the claim of petitioner that B.P. Blg. 22 does not include ‘postdated checks’ and cases of ‘closed accounts’ has no leg to stand on. The term “closed accounts” is within the meaning of the phrase “does not have sufficient funds in or credit with the drawee bank”. Anent the second issue: whether or not notice of dishonor is dispensable in the case at bar. Petitioner failed to show any cogent reason for us to disturb the findings of the RTC and the Court of Appeals. B.P. Blg. 22 or the Bouncing Check’s Law seeks to prevent the act of making and issuing checks with the knowledge that at the time of issue, the drawer does not have sufficient funds in or credit with the bank for payment and the checks were subsequently dishonored upon presentment.[39] To be convicted thereunder, the following elements must be proved:

SEC. 2. Evidence of knowledge of insufficient funds. – The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Based on this section, the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment.[42] The presumption or prima facie evidence as provided in this section cannot arise, if such notice of non-payment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the

drawer, since there would simply be no way of reckoning the crucial 5-day period.[43] In this case, it is not disputed that checks were issued by petitioner and said checks were subsequently dishonored. The question however is, was petitioner furnished a notice of dishonor? If not, is it sufficient justification to exonerate petitioner from her criminal and civil liabilities for issuing the bouncing checks? The trial court ruled that the second element is present because: … the accused knew at the time of issuance of the checks that she did not have sufficient funds in or credit with her drawee bank for the payment of the checks in full upon their presentment [as] admitted by her in the CounterAffidavit she executed during the preliminary investigation of these criminal cases (itals. ours), to wit: 4. That the time of the issuance of the said checks, due notice and information had been so given to Solid Gold anent the actual status of the checks that the same might not be able to cover the amount of the said checks so stated therein … (Exhibit “N”, “1”, underscoring supplied). This fact became evident again during the crossexamination by the accused’s counsel of the prosecution’s witness, Joaquin Novales III: ATTY. TAGANAS: Q: And the reason you agreed to the terms and conditions for the issuance of post-dated checks because you are also aware the particular time the accused Mrs. Elvira Yu Oh did not also have enough funds or money in the bank within which to cover the amount of the checks? A:

I am not aware, sir.

Q: But inspite of the fact that she already told you about that, that you never suspected that she did not have enough money to cover the checks agreed upon and issued to you? A:

Yes, sir.

Q: And inspite of the fact she told you you never suspected that she did not have enough money to cover you . . . Q: You still believe that although she does not have enough money she still issued checks to you? A:

Yes, sir. (TSN, April 6, 1993, pp. 24-26)

At any rate, there is already prima facie evidence of knowledge of insufficiency of funds on the part of the accused from her failure to pay the amount due on the checks or to make arrangements for payment in full by the drawee bank within five banking days after she received notice of their dishonor, each of the checks having been presented within ninety days from their respective dated (B.P. Blg. 22, Sec. 2). The defense did not controvert this evidence. (itals. ours)[44] Although the trial court in its decision, mentioned that herein petitioner received notices of dishonor, nowhere in the records is there proof that the prosecution ever presented evidence that petitioner received or was furnished a notice of dishonor. The notices of dishonor that were presented in court and marked as Exhibits “D-2”, “E-2”, “F-2”, “G-2”, “H-2”, “I-2”, “J-2”, “K-2”, “L-2”, “C-2”[45] were all sent to the private complainant, Solid Gold, and not to petitioner. In convicting petitioner, the trial court, gave probative weight on the admission of petitioner in her Counter-Affidavit which she submitted during the preliminary investigation that at the time of issuance of the subject checks, she was aware and even told private complainant that the checks might not be able to cover the amount stated therein.

... The Court of Appeals sustained the RTC, to wit: Q: To your knowledge when the accused had already admitted to you that she had not enough money to pay you? A:

That is the terms and promise and agreed upon, sir.

. . . Neither can We agree that accused-appellant was still entitled to notice of dishonor of the bouncing checks as she had no more checking account with the drawee bank at the time of the dishonor of the ten checks in question. Accused-appellant must have realized that by closing her

checking account after issuing the ten postdated checks, all of said checks would bounce. Knowing that she had already closed her checking account with the drawee bank, certainly accused-appellant would not have expected, even in her wildest imagination, that her postdated checks would be honored by the drawee bank. Thus, accused-appellant need not be notified anymore of the obvious dishonor of her rubber checks. (itals. ours)[46] Based on the law and existing jurisprudence, we find that the appellate court erred in convicting petitioner. In cases for violation of B.P. Blg. 22, it is necessary that the prosecution prove that the issuer had received a notice of dishonor. Since service of notice is an issue, the person alleging that the notice was served must prove the fact of service. Basic also is the doctrine that in criminal cases, the quantum of proof required is proof beyond reasonable doubt. Hence, for cases of B.P. Blg. 22 there should be clear proof of notice.[47] Indeed, this requirement cannot be taken lightly because Section 2 provides for an opportunity for the drawer to effect full payment of the amount appearing on the check, within five banking days from notice of dishonor. The absence of said notice therefore deprives an accused of an opportunity to preclude criminal prosecution. In other words, procedural due process demands that a notice of dishonor be actually served on petitioner. In the case at bar, appellant has a right to demand – and the basic postulate of fairness requires – that the notice of dishonor be actually sent to and received by her to afford her to opportunity to aver prosecution under B.P. Blg. 22.[48] The Solicitor General contends that notice of dishonor is dispensable in this case considering that the cause of the dishonor of the checks was “Account Closed” and therefore, petitioner already knew that the checks will bounce anyway. This argument has no merit. The Court has decided numerous cases where checks were dishonored for the reason, “Account Closed”[49] and we have explicitly held in said cases that “it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law”[50] and omission or neglect on the part of the prosecution to prove that the accused received such notice of dishonor is fatal to its cause.[51]

A perusal of the testimony of the prosecution witness Joaquin Novales III, General Manager of complainant Solid Gold, discloses that no personal demands were made on appellant before the filing of the complaints against her.[52] Thus, absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal.[53]

G.R. No. L-63318 August 18, 1984 PHILIPPINE CONSUMERS FOUNDATION, INC., petitioner, vs. NATIONAL TELECOMMUNICATIONS COMMISSION and PHILIPPINE LONG DISTANCE TELEPHONE CO., respondents.

On January 12, 1984, PLDT filed its motion for reconsideration (pp. 237-268, rec.).

Tomas C. Llamas for petitioners.

On February 27, 1984, public respondent NTC, thru the Solicitor General, filed a manifestation and motion that it is joining core, respondent PLDT in its motion for reconsideration thereby adopting the same as its own (pp. 302-303, 305-306, rec.).

The Solicitor General for respondent NTC. Moreover, as understood by the trial court itself in the herein aforequoted portion of its decision, General Manager Novales knew of the non-availability of sufficient funds when appellant issued the subject checks to him. This Court has held that there is no violation of B.P. 22 if complainant was told by the drawer that he has no sufficient funds in the bank.[54] For these reasons, we reverse the ruling of the Court of Appeals affirming the trial court’s conviction of petitioner for violation of B.P. Blg. 22. This is without prejudice, however, to her civil liability towards private complainant Solid Gold in the amount of P500,000.00 plus interest thereon at the rate of 12% per annum from date of finality of herein judgment.[55] WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. Petitioner Elvira Yu Oh is ACQUITTED of the offense of violation of B.P. Blg. 22 on ten counts for insufficiency of evidence. However, she is ordered to pay complainant Solid Gold International Traders, Inc. the total amount of Five Hundred Thousand Pesos (P500,000.00) with 12% interest per annum from date of finality of herein judgment.

Eliseo Alampay, Jr., Graciano C. Regala and Augusto San Pedro for private respondents. RESOLUTION

MAKASIAR, J.: I On March 2, 1983, petitioner filed the instant petition praying, among others, that the decision of respondent NTC dated November 22, 1982 and the order dated January 14, 1983 be annulled and set aside on the grounds therein stated (pp. 2-19, rec.). After the petitioner, the private respondent, and the Solicitor General for public respondent NTC filed their respective comments and memoranda (pp. 47-53, 96-106, 109-116, 127-142, 147-164, 206-221, rec.), on November 25, 1983, the decision sought to be reconsidered was promulgated, annulling and setting aside the challenged decision and order, respectively dated November 22, 1982 and January 14, 1983 (pp. 225-232, rec.).

SO ORDERED. Bellosillo, (Chairman), Quisumbing, and Callejo, Sr., JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC

reglementary period within which to file a motion for reconsideration (pp. 233, 236, rec.).

Said decision is not unanimous as it bears the concurrence of only 9 members of this Court, while 3 members took no part and 1 member reserved his vote (p 232, rec.) In a resolution dated January 10, 1984 and released on January 17, 1984, the Court granted respondent PLDT's motion for 15-day extension from the expiration of the

On February 27, 1984, respondent PLDT filed a motion to admit attached supplemental motion for reconsideration (pp. 281-301, rec.).

In a resolution dated March 1, 1984 and issued on March 2, 1984, the Court admitted the supplemental motion for reconsideration of PLDT, noted the manifestation and motion of the Solicitor General for and in behalf of respondent NTC that it is joining the motion for reconsideration of PLDT and adopting it as its own, and required petitioner to convenient within 10 days from notice on the aforesaid supplemental motion for reconsideration of PLDT (p. 304-A, rec.). On March 28, 1984, petitioner filed its comment on respondent's motion for reconsideration (pp. 310-317, rec.). In a resolution dated April 3, 1984 and issued on April 11, 1984, the Court denied the motion for reconsideration (p. 318A, rec.). On April 6, 1984, respondent PLDT filed a motion to strike out "discussion (e)" in petitioner's "comment on respondents' motions" dated March 20, 1984 (pp. 319-321, rec.). In a resolution dated April 12, 1984 and issued on April 16, 1984, the Court required petitioner's counsel Atty. Tomas Llamas to comment within 10 days from notice on the aforesaid motion to strike out (p. 323, rec.). On April 17, 1984, respondent PLDT, thru counsel, filed a motion for leave to file within 15 days from date a second motion for reconsideration (pp. 324-326, rec.).

On April 27, 1984, petitioner filed an opposition to the aforesaid motion of PLDT for leave to file within 15 days to file a second motion for reconsideration (pp. 328-330, rec.).

A day before June 1, 1984, or on May 31, 1984, private respondent PLDT filed its reply to petitioner's "comment on motion of private respondent" dated May 4, 1984 [motion to strike] (pp. 366-369, rec.).

On May 2, 1984, private respondent PLDT filed a second motion for reconsideration with an annex (pp. 332-344, rec.).

On July 16, 1984, after its motions for extension were granted, public respondent NTC thru the Solicitor General, finally filed its reply (pp. 370-371, 372-A, 373, 375-381, rec.).

In a resolution dated May 8, 1984 but issued on May 11, 1984, the Court granted the motion of PLDT to file a second motion for reconsideration within 15 days from April 16, 1984, noted the opposition of petitioner to said motion, and required petitioner to comment within 15 days from notice on the aforesaid second motion for reconsideration of PLDT for the reconsideration of the decision of November 25, 1983 (p. 345, rec.). On May 4, 1984, petitioner filed its comment on the second motion for reconsideration of private respondent (pp. 346-350, rec.). In a resolution dated May 10, 1984 and issued on May 16, 1984, the Court required respondents to file a reply within 10 days from notice on the aforesaid comment of petitioner on private respondent PLDT's motion praying that the discussion (par. 3) in petitioner's comment on the first motion for reconsideration and the supplemental motion for reconsideration be deleted (p. 352, rec.). On May 21, 1984, public respondent NTC filed a manifestation joining private respondent PLDT and adopting the latter's second motion for reconsideration (pp. 353-354, rec.), which the Court granted in a resolution dated May 29, 1984 and issued on June 6, 1984 (p. 355A). On May 28,1984, respondent PLDT filed a motion for extension of 10 days or until June 7, 1984 within which to submit the required reply in the resolution of May 10, 1984 and issued on May 16, 1984 (pp. 356-357, rec.), which was granted in a resolution dated June 5, 1984 and issued on July 3, 1984 (p. 357-A, rec.). On June 1, 1984, petitioner filed its comment on PLDT's second motion for reconsideration, with a motion to declare final the decision with respect to public respondent NTC (pp. 358362, rec.).

It should be emphasized that the resolution of this Court dated April 3, 1984 but issued on April 11, 1984, denying the first motion for reconsideration did not state that the denial is final (see p. 318-A, rec.). And the motion of May 29, 1984 but filed on June 1, 1984 of petitioner to declare as final the decision of November 25, 1983 (which motion was included in plaintiff's comment on PLDT's second motion for reconsideration) with respect to public respondent NTC (pp. 361-362, rec.), was not acted upon by this Court, ostensibly because as early as May 21, 1984, public respondent NTC, thru the Solicitor General, filed a manifestation that it is joining private respondent PLDT in its second motion for reconsideration dated May 18, 1984 and adopting it as its own (pp. 353354, rec.). II It is not disputed — and should be emphasized that on August 31, 1982, this Court set aside the NTC order dated April 14, 1982 in the case of Samuel Bautista vs. NTC, et al. (16 SCRA 411) provisionally approving the revised schedule of rates for the Subscriber Investments Plan, on the ground that there was necessity of a hearing by the Commission before it could have acted on the PLDT application for said revised schedule, to give opportunity to the public, especially herein petitioner and the Solicitor General to substantiate their objections to the said schedule as excessive and unreasonable, especially for the low-income and middle-income groups, which cannot afford telephone connections and that there is no need to increase the rate because PLDT is financially sound. Thereafter, in NTC Case No. 82-87 entitled "Re Philippine Long Distance Telephone Co. respondent NTC conducted several hearings on PLDT's revised Subscriber Investments Plan schedule at which written oppositions were filed by herein petitioner PCFI, the Solicitor General,

Atty. Samuel Bautista, Flora Alabanza, the municipality of Marikina, and the Integrated Telecommunications Suppliers' Association of the Philippines (ITESAP). Other oppositors failed to file their written oppositions. The hearings on the merits actually started on August 4, 1982 and continued for four (4) subsequent dates. The oppositors, thru counsel, thoroughly cross-examined the witness for the applicant, Mr. Romeo Sisteban applicant's Vice-President for Budget and Financial Planning. None of the oppositors opted to present evidence but merely filed Memoranda and thereafter manifested that the case is submitted for decision Because PLDT made some concessions in favor of the oppositors, oppositors ITESAP, Eastern Telecommunications, Inc., Philippine Global Communications, Inc. (Philcom), Globe-Mackay Cable and Radio Corporation (GMCR) withdrew their opposition and manifested that they are no longer opposing the application after which respondent NTC issued the challenged decision of November 22, 1982. Respondent NTC rendered the challenged decision dated November 22, 1982, approving the revised schedule on the ground that the rates are within the 50% of cost limit provided in P.D. No. 217, that they are just and reasonable and in consonance with the public policies declared in said decree, and that such approval is in the public interest (see NTC decision of Nov. 22, 1982, pp. 2-19, rec.). It is undisputed therefore that petitioner and the other oppositors were accorded due process. From said decision dated November 22, 1982, petitioner filed the instant petition. III The decision promulgated on November 25, 1983 interprets the rule-making authority delegated in Section 2 of P.D. No. 217 to the then Department of Public Works, Transportation and Communications as mandatory, which construction is not supported by the actual phraseology of said Section 2, which reads thus: The Department of Public Works, Transportation and Communications, through its Board of Communications and/or appropriate agency shall see to it that the herein

declared policies for the telephone industry are immediately implemented and for this purpose, pertinent rules and regulations may be promulgated (emphasis supplied). The basic canon of statutory interpretation is that the word used in the law must be given its ordinary meaning, unless a contrary intent is manifest from the law itself. Hence, the phrase "may be promulgated" should not be construed to mean "shall" or "must". It shall be interpreted in its ordinary sense as permissive or discretionary on the part of the delegate — department or the Board 6f Communications then, now the National Telecommunications Commission — whether or not to promulgate pertinent rules and regulations. There is nothing in P.D. No. 217 which commands that the phrase "may be promulgated" should be construed as "shall be promulgated." The National Telecommunications Commission can function and has functioned without additional rules, aside from the existing Public Service Law, as amended, and the existing rules already issued by the Public Service Commission, as well as the 1978 rules issued by the Board of Communications, the immediate predecessor of respondent NTC. It should be recalled that the PLDT petition for approval of its revised SIP schedule was filed on March 20,1980. P.D. No. 217 does not make the rules and regulations to be promulgated by the respondent NTC as essential to the exercise of its jurisdiction over applications for SIP schedules. In Ang Tibay vs. CIR (69 Phil. 635), this Court, through Mr. Justice Jose P. Laurel, did not include the promulgation of rules and regulations as among the seven (7) requirements of due process in quasi-judicial proceedings before a quasi-judicial body such as the respondent NTC. What is patently mandatory on the ministry or National Telecommunications Commission is the immediate implementation of the policies declared in P.D. No. 217. To repeat, the ministry or the NTC "shall see to it that the herein declared policies for the telephone industry are immediately implemented ..." The formulation of rules and regulations is purely discretionary on the part of the delegate. Both words "shall and "may be" are employed in the lone sentence of Section 2 of P.D. No. 217. This graphically demonstrates that P.D. No. 217 preserves the distinction between their ordinary, usual or nominal senses.

This is emphasized by the fact that under Section 3 of P.D. No. 217, only "the pertinent provisions" of the Public Service Act, as amended, which are in conflict with the provisions of P.D. No. 217, had been repealed or modified by said P.D. No. 217. Section 3 of P.D. No. 217 states: The pertinent provisions of the Public Service Act, as amended, the franchise of the Philippine Long Distance Telephone Company under Act 3436, as amended, all existing legislative and/or municipal franchises and other laws, executive orders, proclamations, rules and regulations or parts thereof, as are in conflict with the provisions of this Decree are hereby repealed or modified accordingly. And under the Public Service Act, as amended (C.A. No. 146), the board of Communications then, now the NTC, can fix a provisional amount for the subscriber's investment to be effective immediately, without hearing (par. 3 of Sec. 16, C.A. 146, as amended). Section 16 (c) of C.A. No. 146, as amended, provides: (c) To fix and determine individual or joint rates, toll charges, classifications, or schedules thereof, as well as communication, mileage, kilometrage, and oilier special rates which shall be imposed, observed, and followed thereafter by any public service: Provided That the Commission may, in its discretion approve rates proposed by public services provisionally and without necessity of any hearing, but it shall call a hearing thereon within thirty days thereafter, upon publication and notice to the concerns operating in the territory affects Provided further, That in case the public service equipment of an operator is used principally or secondarily for the promotion of a private business, the net profits of said private business shall be considered in relation with the public service of such operator for the purpose of fixing the rates. The Rules of Practice and Procedures promulgated on January 25, 1978 by the Board of Communications, the immediate predecessor of respondent NTC, pursuant to Section 11 of the Public Service Act, otherwise known as Commonwealth Act No. 146, as amended, govern the rules of practice and procedure before the BOC then, now respondent NTC. Section 2 of said Rules defines their

scope, including exempting parties from the application of the rules in the interest of justice and to best serve the public interest, and the NTC may apply such suitable procedure to improve the service in the transaction of public service. Thus, Section 2 of Rule 1 of said Rules reads: Sec. 2. Scope. — These rules govern pleadings, practice and procedure before the Board of Communications in all matters of hearing, investigation and proceedings within the jurisdiction of the Board. However, in the broader interest of justice and in order to best serve the public interest, the Board may, in any particular matter, except it from these rules and apply such suitable procedure to improve the service in the transaction of the public business. Sections 4 and 5 of Rule 2 of said rules insure the appearance of the Solicitor General and other consumers or users. The notice of hearing is required to be published and to be served on the affected parties by Section 2 of Rule 8; while Section I of Rule 9 allows the filing of written oppositions to the application Under Section 3 of Rule 15, the BOC then, now the NTC, may grant, on motion of the applicant or on its own initiative, provisional relief based on the pleading, supporting affidavits and other documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be caged within thirty (30) days from the grant of the provisional relief. Finally, Section 1 of Rule 19 provides for the suppletory application of the Rules of Court governing proceedings before the Court of First Instance then, now the Regional Trial Courts, which are not inconsistent with the rules of practice and procedure promulgated by the BOC on January 25, 1978. There is nothing in P.D. No. 217 modifying, much less repeating Section 16 (c) of the Public Service Act, as amended. It is true that P.D. No. 1874 promulgated on July 21, 1983 amending Section 2 of P.D. No. 217 expressly authorizes the National Telecommunications Commission (now the successor of the Board of Communications) to approve "such amounts for subscriber investments as applied for provisionally and without the necessity of a hearing; but shall call a hearing thereon within thirty (30) days thereafter, upon publication and notice to all parties

affected." But such amendment merely reiterates or confirms paragraph (c) of Section 16 of C.A. No. 146, as amended, otherwise known as the Public Service Law, and serves merely to clarify the seeming ambiguity of the repealing clause in Section 3 of P.D. No. 217 to dissipate an doubts on such power of the National Telecommunications Commission. The construction of the majority decision of November 25, 1983 of the word "may" to mean "shall" is too strained, if not tortured. IV WE cannot subscribe to the view that the National Telecommunications Commission should or must promulgate "pertinent rules and regulations because the existing substantive and procedural laws as well as the rules promulgated by the Public Service Commission under and pursuant to the Public Service Law, otherwise known as CA No. 146, as amended, are more than adequate to determine the reasonability of the amounts of investment of telephone subscribers, the viability of the company and the other factors that go into determining such amounts and such viability. The existing laws and rules on rate-making are more than sufficient for a proper determination of such amounts of investments of individual subscribers and the profitability of the venture. The adequacy of the existing Public Service Law, otherwise known as C.A. No. 146, as amended, and rules had been demonstrated, because they have been applied in the following cases involving PLDT: 1. PLDT vs. PSC, G.R. No. L-26762, Aug. 31, 1970, 34 SCRA 609; 2. Republic vs. PLDT, G.R. No. L-18841, Jan. 27, 1969, 26 SCRA 620; 3. PLDT vs. PSC, G.R. Nos. L-24198 & L-24207-10, Dec. 18, 1968, 26 SCRA 427; 4. Republic Telephone Co. vs. PLDT, G.R. No. L-21070; PLDT vs. Republic Telephone Co., G.R. No. L-21075, both decided on Sept. 23, 1968, 25 SCRA 80; 5. PLDT vs. Medina, G.R. No. L-24658, April 3, 1968, 23 SCRA 1; and

6. PLDT vs. Medina, G.R. Nos. L-24340-44, July 18, 1967, 20 SCRA 669.

expressly provided for in Section 1 of P.D. 1874 amending Sec. 6 of P.D. 217. Section 1 of P.D. 1874 directs that:

As heretofore stated, as early as January 25, 1978, other pertinent rules of practice and procedure were promulgated by the then Board of Communications, now the respondent National Telecommunications Commission, implementing P.D. No, 217, in addition to the applicable provisions of the Public Service Law, as amended, and the rules previously issue by the Public Service Commission (Annex 2 to the Memo of respondent PLDT filed on August 15, 1983, pp. 147-165, rec.). Even before 1978, respondent applied the procedure prescribed by the Public Service Law, as amended, and the rules previously issued by the Public Service Commission, the NTC predecessor, in several cases involving similar applications for SIP schedules of Filipino Telephone Corporation (BOC Case No. 73-064; see BOC decision in said cases dated December 5, 1974, May 11, 1978, March 15, 1977, Feb. 19, 1976 and Aug. 31, 1978 — Annexes 3, 4, 4-A, 5, pp. 166-195, rec.). The majority opinion recognizes that for the last three years, the PLDT had earned a yearly average net profit of over P100 million and the existing subscribers have been receiving their corresponding quarterly dividends on their investments. It should be stressed that Section 5 of Article XIV of the 1973 Constitution, as amended, expressly directs that "the State shall encourage equity participation in public utilities by the general public." As above-stated, the existing individual subscribers of PLDT had been sharing in the net profits of the company every quarter after the promulgation of P.D. 217 on June 16, 1973. The amount that is provisionally approved under the subscriber's investment plan for PBX/PAEX trunks and for business telephones in Metro Manila and the provinces, whether new installations or transfers, appears to be reasonable, including those for the leased lines or outside local. To lighten the burden of subscribers, investments may be paid in installments or under some convenient arrangements which the NTC may authorize, which is now

Section 1, paragraph 6 of the Presidential Decree No. 217 is hereby amended to read as follows: 6. In any subscriber self-financing plan, the amount of subscriber self-financing wilt in no case, exceed fifty per centum (50%) of the amount which results from dividing the telephone utility's gross investment in telephone plant in service by its number of primary stations in service, both as reported in the utility's latest audited annual report rendered he National Telecommunications Commission; PROVIDED, however, that the amount payable by the telephone subscriber may be paid on installment or under such payment arrangement as the National Telecommunications Commission may authorize. V It should be likewise emphasized that pursuant to the mandate of Section 5, Article XIV of the 1973 Constitution, as amended, the law-making authority, in issuing both P.D. Nos. 217 and 1874, established the all-important policy of making available on regular and uninterrupted basis the telephone service because it is a crucial element in the conduct of business activity ... and is essential for the smooth and efficient function of industry, ... efficient telephone service contributes directly to national development by facilitating trade and commerce; ... the telephone industry is one of the most highly capital intensive industries; ... the telephone industry has fundamentally different financing characteristics from other utilities in that capital requirements per telephone unit installed increase as the number of customers serviced also increases instead of decreasing in cost per unit as in power and water utilities; ... continued reliance on the traditional sources of capital funds through foreign and domestic borrowing and through public ownership of common capital stock will result in a high cost of capital heavy cash requirements for

amortization and thus eventually in higher effective cost of telephone service to subscribers;

shares, after a reasonable period and under reasonable terms, at the option of the preferred stockholder; and

... the subscribers to telephone service tend to be among the residents of urban areas and among the relatively higher income segment of the population;

6. In any subscriber self-financing plan, the amount of subscriber self-financing wig, in no case, exceed fifty per centum (50%) of the cost of the installed telephone line, as may be determined from time to time by the regulatory bodies of the State.

... it is in the interest of the national economy to encourage savings and to place these savings in productive enterprises and ... it is the announced policies of the government to encourage the spreading out of ownership in public utilities (see Whereases of P.D. 217; emphasis supplied). P.D. No. 217 further states as the basic policies of the State concerning the telephone industry "in the interest of social, economic and general well-being of the people ... 1. The attainment of efficient telephone service for as wide an area as possible at the lowest reasonable cost to the subscriber; 2. The expansion of telephone service shall be financed through an optimal combination of domestic and foreign sources of financing and an optimal combination of debt and equity funds so as to minimize the aggregate cost of capital of telephone utilities; 3. Consistent with the declared policy of the State to attain widespread ownership of public utilities obtained from ownership funds shall be raised from a broad base of investors, involving as large a number of individual investors as may be possible; 4. In line with the objective of spreading ownership among a wide base of the people, the concept of telephone subscriber self-financing is hereby adopted whereby a telephone subscriber finances part of the capital investments in telephone installations through the purchase of stocks, whether common or preferred stock, of the telephone company; 5. As part of any subscriber self-financing plan, when the issuance of preferred stock is contemplated, it is required that the subscriber be assured, in all cases of a fixed annual income from his investment and that these preferred capital stocks be convertible into common

The same policies and objectives are substantially restated and capsulized in the three Whereases of P.D. No. 1874 amending P.D. No. 217 as pointed out in the basic policies aforestated in P.D. No. 217 that the cost per telephone unit increases in proportion to the increase in the number of customers served; and that foreign borrowing will impose heavy cash requirements for amortizations of such foreign loans which would result in the higher effective costs of telephone service to subscribers and ultimately would be a heavy drain on our dollar reserves, which will result in our inability to meet our other foreign commitments and mark the image of the Republic of the Philippines in international trade relations. Thus, P.D. No. 217 stresses that in the interest of the national economy it is essential to encourage savings and to place these savings (subscriber's investments) in productive enterprises. PLDT is profitable for the subscribers-investors as shown by its net profit and the dividends received quarterly by the existing subscribers. There is no showing — not even an allegation — that the net profits realized by PLDT all these years have been dissipated and not plowed back into the firm to improve its service.

Metro Manila Provincial

I. New Installations —

1. PBX/PABX Trunk P5,000 P3,000 2. Phone:

Single line 3,500 2,000 Party line

But the rising cost of materials and labor needed to improve the PLDT service, aggravated by the devaluation of our currency, all the more justify the revised SIP schedule approved by the respondent NTC. The approved revised SIP schedule, which appears reasonable and fair is herein reproduced:

2,000 1,500 3. Phone:

REVISED SIP SCHEDULE Revised SIP Rates Single line Service Category

1,800

800

1,300

(pp. 34-35, rec.). Single line

Party line 800 900 600 800 Party line 4. Leased line 600 2,500 500

With the dividends that will be received quarterly under the revised SIP schedule, the subscribers (whether of phone installations for business with or without trunk lines, as wen as transfers of the same; or of residential phones whether single or party line as well as transfers of the same), will recover their investments after some years and will thereafter remain stockholders and part-owners of PLDT. All the subscribers therefore, are assured not only of profits from but also preservation of, their investments, which are not donations to PLDT.

2,500 3. Residential Phone:

There are always two sides — sometimes more — to a case or proposition or issue. There are many cases decided by this Court where this Court had reconsidered Its decisions and even reversed Itself, conformably to the environmental facts and the applicable law.

Single line

After a re-study of the facts and the law, illuminated by mutual exchange of views the members of the Court may and do change their minds.

5. Tie trunk or tie line 2,500 2,500 6. Outside local 600 2,500 500 2,500 Party line

To repeat, the decision of November 25, 1983 was not a unanimous decision for it has the concurrence of only nine (9) members of the Court, because three (3) took no part and one (1) reserved his vote (p. 232, rec.).

500

4. Leased line

WHEREFORE, THE DECISION OF NOVEMBER 25, 1983 SHOULD BE AS IT IS HEREBY RECONSIDERED AND SET ASIDE AND THE PETTION IS HEREBY DISMISSED. NO COSTS.

800

SO ORDERED.

800

Concepcion, Jr., Guerrero, Escolin, De la Fuente and Cuevas, JJ., concur.

300 II. Transfers —

5. Tie trunk or tie line 1. PBX/PABX

Aquino and Plana, JJ., concur in the result. 800

1,500

Fernando, C.J., took no part. 800

1,200 6. Outside local 2. Phone: 800 Separate Opinions

TEEHANKEE, J., dissenting: I join the dissents of Justices Abad Santos and Relova. I only wish to add that there has been a departure here from the Court's usual practice and rules (cf. Rule 52, sec. 2; Rule 51, sec. 1; and Rule 56, Secs. 1 and 11) of setting the case for rehearing and hearing the parties in oral argument when a new majority (because of a change of votes or new members or for whatever reason) is inclined to reconsider and overturn the original majority; more so, on a second motion for reconsideration, the first motion for reconsideration having been denied without a dissenting vote and the parties not having been previously heard in oral argument.

Since the Philippine peso is now worth one American nickel the cost of services based on imported materials must increase. Loans contracted when the foreign exchange rate was not so disadvantageous now require double or treble amortizations in depreciated pesos. The Court cannot assume the role of King Canute. Only the financial experts in the political departments can return the peso to a respectable value. Moreover, it is indeed to the nation's advantage to look for local capital sources instead of resorting to more foreign borrowings. I must stress, however, that consumers would not mind paying reasonable increases if they get satisfactory services. The respondent telephone company has yet to solve this elementary and glaringly obvious problem. Pinpointing the cause and applying the solution should be the company's number one concern.

GUTIERREZ, JR., J., separate opinion:

ABAD SANTOS, J., dissenting:

My concurrence in Mr. Justice Makasiar's ponencia is not without certain misgivings. I agree with the Court's views on the powers of the National Telecommunications Commission, the applicability of existing rules and regulations, and the policy declarations in P.D. Nos. 217 and 1874. However, while now convinced that the increase in mandatory investments for subscribers is based on law and that there is no showing of arbitrariness in the law's implementation, I must confess that I see no justification for the continued inefficient services rendered by the respondent telephone company. When the Court was deliberating on the motion for reconsideration, my own residential telephone was out of order. And I believe that our experiences in our neighborhood do not represent isolated cases. I have yet to hear from or about satisfied PLDT customers.

I vote to deny the second Motion for Reconsideration. I am amazed that the decision which was promulgated as recently as November 25, 1983, with no dissenting opinion to dilute its acceptability should now be reconsidered. My amazement is heightened by the fact that when the case was discussed on July 26, 1984, I had the impression that the motion was doomed so that a request to defer action on it would have met the same fate had not the request been put on a pag-bigyan basis.

My point is —increased rates and increases in the "subscribers' self-financing plan" must be matched by equivalent and demonstrably improved telephone service. More than its duty to increase rates and subscribers' fees whenever warranted, the respondent Commission has the statutory and greater obligation to supervise "the attainment of efficient telephone service for as wide an area as possible at the lowest reasonable cost to the subscribers." I am aware that almost all major or components of our telephone system must be imported from foreign sources.

The case involves a simple problem of statutory construction — that of Section 2 of Presidential Decree No. 217. It reads as follows: The Department of Public Works, Transportation and Commissions, through its Board of Communications and/or appropriate agency shall see to it that the herein declared policies for the telephone industry are immediately implemented and for this purpose, pertinent rules and regulations may be promulgated. The issue is whether or not the National Telecommunications (NTC) must first promulgate the rules and regulations mentioned in the decree before it can approve the Subscriber Investment Plan (SIP) of private respondent Philippine Long Distance Telephone Co. (PLDT).

The decision, without any dissenting opinion, sustained the petitioner's contention that it is the duty of NTC to first Promulgate rules and regulations. The resolution, which is not unanimous, does not subscribe to the view that the NTC should or must promulgate rules and regulations because, it is said, the decree must be given its ordinary meaning; the word used is the permissive "may" and not the mandatory "shall The non-unanimous resolution thus relies on the canons index animi sermo est (speech is the indication of intent) and a verba legis non est recedendum (from the words of the statute there should be no departure). Any lawyer of modest sophistication knows that canons of statutory construction march in pairs of opposite. Thus with the canons above mentioned we have the following opposite: verba intention, non e contra, debent incservice (words ought to be more subservient to the intent and not the intent to the words). Sutherland explains the limits of literalism thus: The literal interpretation of the words of an act should not prevail if it creates a result contrary to the apparent intention of the legislature and if the words are sufficiently flexible to admit of a construction which will effectuate the legislative intention The intention prevails over the letter, and the letter must if possible be read so as to conform to the spirit of the act. 'While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and obvious purpose of the law should not be sacrificed to a literal interpretation of such words. Thus words or clauses may be enlarged or restricted to harmonize with other provisions of an act. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act. (Vol. 2A Statutory Construction, pp. 65-66 [1972].) It is an elementary rule in statutory construction that the word "may" in a statute is permissive while the word "shall" is mandatory. The rule, however, is not absolute. Thus Professor Luis J. Gonzaga states: According to Black, 'Where the statute provides for the doing of some act which is required by justice or public duty, or where it invests a public body, municipality or officer with power and authority to take some action which

concerns the public interest or rights of individuals, the permissive language win be construed as mandatory and the execution of the power may be insisted upon as a duty. Thus, where the statute provided that 'the commissioners may take into consideration the enhanced value to the remaining land of an owner whose land was taken for highway purposes it was held that the word may should be given a mandatory meaning and is the same as the word 'shall', since it directs the doing of a thing for the sake of justice or the public good. Similarly, a statute by which municipal corporations are 'authorized and empowered to provide for the support of indigent persons within their limits or to make public improvements as to open and repair streets, remove obstructions from highways, construct sewers and the like, are to be construed as mandatory although they only purport to grant permission or authority since the public has an interest in such matters and the grant of authority is therefore equivalent to the imposition of duty." (Statutes and their Construction, pp. 98-99 [1969].) In the case at bar compelling reasons dictate that the provision of the decree should be construed as mandatory mother than merely directory. They are stated in the unanimous decision as follows: 1. P.D. 217 deals with matters so alien innovative and untested such that existing substantive and procedural laws would not be applicable. Thus, the Subscriber Investment Plan (SIP) was so set up precisely to ensure the financial viability of public telecommunications companies which in turn assures the enjoyment of the population at minimum cost the benefits of a telephone facility.

after how can the Decision be said to have assured that most of the population will enjoy telephone facilities? Did the Decision likewise assure the financial viability of PLDT? Was the government's duty to provide telephone service to its constituents subserved by the Decision? These questions can never be answered unless such rules and regulations are set up. 3. Finally, it should be emphasized that NTC is estopped from claiming that there is no need to promulgate such rules and regulations. In the case of PCFI vs. NTC, G.R. No. 61892, now pending resolution before this Honorable Tribunal, NTC totally refused to act on a petition filed by PLDT precisely for the promulgation of such rules and regulations. Why then did NTC refuse to act on such petition if and when there is no need for the promulgation of such rules and regulations? After all NTC could have simply ruled that the petition in G.R. No. 618R2 is unnecessary because such rules and regulations are also unnecessary. (pp. 135136, Rollo) The above reasons also rebut the contention in the nonunanimous resolution that the existing substantive and procedure laws as well as the rules promulgated by the Public Service Commission are more than adequate to determine the reasonableness of the amounts of investment of telephone subscribers, etc. The PLDT's SIP is an unreasonable imposition by a utility company on a captive public. The injury is compounded by the fact that although the company makes mega profits its service, to use a McEnroe expression, is the pits.

The SIP has never been contemplated prior to P.D. 217.

Melencio-Herrera, J., concur.

The existing law on the other hand, the Public Service Act, diametrically runs counter to the split and intention, if not the purpose of P.D. 217. It may even be gained that as long as the Optimum number of individuals may enjoy telephone service, there is no station on the profitability of such companies. Hence, while P.D. 217 encourages the profitability of public telecommunication companies, the Public Service Act limits the same.

RELOVA, J., dissenting:

2. In the absence of such rules and regulations, there is outright confusion among the rights of PLDT, the consumers and the government itself. As may clearly be

For the reasons stated in my ponencia of November 25, 1983, I vote to DENY the second motion for reconsideration, dated May 2, 1984, filed by private respondent Philippine Long Distance Telephone Company, through counsel. The argument advanced in the motion that Presidential Decree No. 217 was amended by Presidential Decree No. 1874 which was issued on July 21, 1983, is without merit. Section 4 of said PD 1874 specifically provides that "all decisions or orders of the National Telecommunications Commission heretofore

issued approving subscribers investment plans or revisions thereof, are hereby declared valid and legal in all respects, excepting such decisions or orders as, on the date of this decree, are pending review by the Supreme Court." The case at bar was filed with this Court on March 3, 1983 or before the issuance of Presidential Decree No. 1874. Besides, Section 1 of Presidential Decree No. 217 which was promulgated on June 16, 1973 declares that "in the interest of the social, economic and general well being of the people, the State hereby adopts the following basic policies of the telephone industry: 1. The attainment of efficient telephone service for as wide an area as possible at the lowest reasonable cost to the subsciber. xxx xxx xxx Melencio-Herrera, J., concur.

Separate Opinions TEEHANKEE, J., dissenting: I join the dissents of Justices Abad Santos and Relova. I only wish to add that there has been a departure here from the Court's usual practice and rules (cf. Rule 52, sec. 2; Rule 51, sec. 1; and Rule 56, Secs. 1 and 11) of setting the case for rehearing and hearing the parties in oral argument when a new majority (because of a change of votes or new members or for whatever reason) is inclined to reconsider and overturn the original majority; more so, on a second motion for reconsideration, the first motion for reconsideration having been denied without a dissenting vote and the parties not having been previously heard in oral argument. GUTIERREZ, JR., J., separate opinion: My concurrence in Mr. Justice Makasiar's ponencia is not without certain misgivings. I agree with the Court's views on the powers of the National Telecommunications Commission, the applicability of existing rules and regulations, and the policy declarations in P.D. Nos. 217 and 1874. However, while now convinced that the increase in mandatory investments for subscribers is based on law

and that there is no showing of arbitrariness in the law's implementation, I must confess that I see no justification for the continued inefficient services rendered by the respondent telephone company. When the Court was deliberating on the motion for reconsideration, my own residential telephone was out of order. And I believe that our experiences in our neighborhood do not represent isolated cases. I have yet to hear from or about satisfied PLDT customers. My point is —increased rates and increases in the "subscribers' self-financing plan" must be matched by equivalent and demonstrably improved telephone service. More than its duty to increase rates and subscribers' fees whenever warranted, the respondent Commission has the statutory and greater obligation to supervise "the attainment of efficient telephone service for as wide an area as possible at the lowest reasonable cost to the subscribers." I am aware that almost all major or components of our telephone system must be imported from foreign sources. Since the Philippine peso is now worth one American nickel the cost of services based on imported materials must increase. Loans contracted when the foreign exchange rate was not so disadvantageous now require double or treble amortizations in depreciated pesos. The Court cannot assume the role of King Canute. Only the financial experts in the political departments can return the peso to a respectable value. Moreover, it is indeed to the nation's advantage to look for local capital sources instead of resorting to more foreign borrowings. I must stress, however, that consumers would not mind paying reasonable increases if they get satisfactory services. The respondent telephone company has yet to solve this elementary and glaringly obvious problem. Pinpointing the cause and applying the solution should be the company's number one concern. ABAD SANTOS, J., dissenting: I vote to deny the second Motion for Reconsideration. I am amazed that the decision which was promulgated as recently as November 25, 1983, with no dissenting opinion to dilute its acceptability should now be reconsidered. My amazement is heightened by the fact that when the case was discussed on July 26, 1984, I had the impression that the motion was doomed so that a request to defer action

on it would have met the same fate had not the request been put on a pag-bigyan basis. The case involves a simple problem of statutory construction — that of Section 2 of Presidential Decree No. 217. It reads as follows: The Department of Public Works, Transportation and Commissions, through its Board of Communications and/or appropriate agency shall see to it that the herein declared policies for the telephone industry are immediately implemented and for this purpose, pertinent rules and regulations may be promulgated. The issue is whether or not the National Telecommunications (NTC) must first promulgate the rules and regulations mentioned in the decree before it can approve the Subscriber Investment Plan (SIP) of private respondent Philippine Long Distance Telephone Co. (PLDT). The decision, without any dissenting opinion, sustained the petitioner's contention that it is the duty of NTC to first Promulgate rules and regulations. The resolution, which is not unanimous, does not subscribe to the view that the NTC should or must promulgate rules and regulations because, it is said, the decree must be given its ordinary meaning; the word used is the permissive "may" and not the mandatory "shall The non-unanimous resolution thus relies on the canons index animi sermo est (speech is the indication of intent) and a verba legis non est recedendum (from the words of the statute there should be no departure). Any lawyer of modest sophistication knows that canons of statutory construction march in pairs of opposite. Thus with the canons above mentioned we have the following opposite: verba intention, non e contra, debent incservice (words ought to be more subservient to the intent and not the intent to the words). Sutherland explains the limits of literalism thus: The literal interpretation of the words of an act should not prevail if it creates a result contrary to the apparent intention of the legislature and if the words are sufficiently flexible to admit of a construction which will effectuate the legislative intention The intention prevails over the letter, and the letter must if possible be read so as to conform to

the spirit of the act. 'While the intention of the legislature must be ascertained from the words used to express it, the manifest reason and obvious purpose of the law should not be sacrificed to a literal interpretation of such words. Thus words or clauses may be enlarged or restricted to harmonize with other provisions of an act. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act. (Vol. 2A Statutory Construction, pp. 65-66 [1972].) It is an elementary rule in statutory construction that the word "may" in a statute is permissive while the word "shall" is mandatory. The rule, however, is not absolute. Thus Professor Luis J. Gonzaga states: According to Black, 'Where the statute provides for the doing of some act which is required by justice or public duty, or where it invests a public body, municipality or officer with power and authority to take some action which concerns the public interest or rights of individuals, the permissive language win be construed as mandatory and the execution of the power may be insisted upon as a duty. Thus, where the statute provided that 'the commissioners may take into consideration the enhanced value to the remaining land of an owner whose land was taken for highway purposes it was held that the word may should be given a mandatory meaning and is the same as the word 'shall', since it directs the doing of a thing for the sake of justice or the public good. Similarly, a statute by which municipal corporations are 'authorized and empowered to provide for the support of indigent persons within their limits or to make public improvements as to open and repair streets, remove obstructions from highways, construct sewers and the like, are to be construed as mandatory although they only purport to grant permission or authority since the public has an interest in such matters and the grant of authority is therefore equivalent to the imposition of duty." (Statutes and their Construction, pp. 98-99 [1969].) In the case at bar compelling reasons dictate that the provision of the decree should be construed as mandatory mother than merely directory. They are stated in the unanimous decision as follows: 1. P.D. 217 deals with matters so alien innovative and untested such that existing substantive and procedural

laws would not be applicable. Thus, the Subscriber Investment Plan (SIP) was so set up precisely to ensure the financial viability of public telecommunications companies which in turn assures the enjoyment of the population at minimum cost the benefits of a telephone facility.

determine the reasonableness of the amounts of investment of telephone subscribers, etc. The PLDT's SIP is an unreasonable imposition by a utility company on a captive public. The injury is compounded by the fact that although the company makes mega profits its service, to use a McEnroe expression, is the pits.

The SIP has never been contemplated prior to P.D. 217. Melencio-Herrera, J., concur. The existing law on the other hand, the Public Service Act, diametrically runs counter to the split and intention, if not the purpose of P.D. 217. It may even be gained that as long as the Optimum number of individuals may enjoy telephone service, there is no station on the profitability of such companies. Hence, while P.D. 217 encourages the profitability of public telecommunication companies, the Public Service Act limits the same. 2. In the absence of such rules and regulations, there is outright confusion among the rights of PLDT, the consumers and the government itself. As may clearly be after how can the Decision be said to have assured that most of the population will enjoy telephone facilities? Did the Decision likewise assure the financial viability of PLDT? Was the government's duty to provide telephone service to its constituents subserved by the Decision? These questions can never be answered unless such rules and regulations are set up. 3. Finally, it should be emphasized that NTC is estopped from claiming that there is no need to promulgate such rules and regulations. In the case of PCFI vs. NTC, G.R. No. 61892, now pending resolution before this Honorable Tribunal, NTC totally refused to act on a petition filed by PLDT precisely for the promulgation of such rules and regulations. Why then did NTC refuse to act on such petition if and when there is no need for the promulgation of such rules and regulations? After all NTC could have simply ruled that the petition in G.R. No. 618R2 is unnecessary because such rules and regulations are also unnecessary. (pp. 135136, Rollo)

RELOVA, J., dissenting: For the reasons stated in my ponencia of November 25, 1983, I vote to DENY the second motion for reconsideration, dated May 2, 1984, filed by private respondent Philippine Long Distance Telephone Company, through counsel. The argument advanced in the motion that Presidential Decree No. 217 was amended by Presidential Decree No. 1874 which was issued on July 21, 1983, is without merit. Section 4 of said PD 1874 specifically provides that "all decisions or orders of the National Telecommunications Commission heretofore issued approving subscribers investment plans or revisions thereof, are hereby declared valid and legal in all respects, excepting such decisions or orders as, on the date of this decree, are pending review by the Supreme Court." The case at bar was filed with this Court on March 3, 1983 or before the issuance of Presidential Decree No. 1874.

THIRD DIVISION [G.R. No. 102858. July 28, 1997] THE DIRECTOR OF LANDS, petitioner, vs. COURT OF APPEALS and TEODORO ABISTADO, substituted by MARGARITA, MARISSA, MARIBEL, ARNOLD and MARY ANN, all surnamed ABISTADO, respondents. DECISION PANGANIBAN, J.: Is newspaper publication of the notice of initial hearing in an original land registration case mandatory or directory? Statement of the Case

The above reasons also rebut the contention in the nonunanimous resolution that the existing substantive and procedure laws as well as the rules promulgated by the Public Service Commission are more than adequate to

The Court of Appeals ruled that it was merely procedural and that the failure to cause such publication did not deprive the trial court of its authority to grant the application. But the Solicitor General disagreed and thus

filed this petition to set aside the Decision[1] promulgated on July 3, 1991 and the subsequent Resolution[2] promulgated on November 19, 1991 by Respondent Court of Appeals[3] in CA-G.R. CV No. 23719. The dispositive portion of the challenged Decision reads:[4] "WHEREFORE, premises considered, the judgment of dismissal appealed from is hereby set aside, and a new one entered confirming the registration and title of applicant, Teodoro Abistado, Filipino, a resident of Barangay 7, Poblacion Mamburao, Occidental Mindoro, now deceased and substituted by Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado, represented by their aunt, Miss Josefa Abistado, Filipinos, residents of Poblacion Mamburao, Occidental Mindoro, to the parcel of land covered under MSI (IV-A-8) 315-D located in Poblacion Mamburao, Occidental Mindoro. The oppositions filed by the Republic of the Philippines and private oppositor are hereby dismissed for want of evidence. Upon the finality of this decision and payment of the corresponding taxes due on this land, let an order for the issuance of a decree be issued." The Facts On December 8, 1986, Private Respondent Teodoro Abistado filed a petition for original registration of his title over 648 square meters of land under Presidential Decree (PD) No. 1529.[5] The application was docketed as Land Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial Court of Mamburao, Occidental Mindoro.[6] However, during the pendency of his petition, applicant died. Hence, his heirs -- Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado -represented by their aunt Josefa Abistado, who was appointed their guardian ad litem, were substituted as applicants. The land registration court in its decision dated June 13, 1989 dismissed the petition “for want of jurisdiction.” However, it found that the applicants through their predecessors-in-interest had been in open, continuous, exclusive and peaceful possession of the subject land since 1938. In dismissing the petition, the trial court reasoned:[7]

"x x x. However, the Court noted that applicants failed to comply with the provisions of Section 23 (1) of PD 1529, requiring the Applicants to publish the notice of Initial Hearing (Exh. `E') in a newspaper of general circulation in the Philippines. Exhibit `E' was only published in the Official Gazette (Exhibits `F' and `G'). Consequently, the Court is of the well considered view that it has not legally acquired jurisdiction over the instant application for want of compliance with the mandatory provision requiring publication of the notice of initial hearing in a newspaper of general circulation." The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982, which in its pertinent portion provides:[8] “It bears emphasis that the publication requirement under Section 23 [of PD 1529] has a two-fold purpose; the first, which is mentioned in the provision of the aforequoted provision refers to publication in the Official Gazette, and is jurisdictional; while the second, which is mentioned in the opening clause of the same paragraph, refers to publication not only in the Official Gazette but also in a newspaper of general circulation, and is procedural. Neither one nor the other is dispensable. As to the first, publication in the Official Gazette is indispensably necessary because without it, the court would be powerless to assume jurisdiction over a particular land registration case. As to the second, publication of the notice of initial hearing also in a newspaper of general circulation is indispensably necessary as a requirement of procedural due process; otherwise, any decision that the court may promulgate in the case would be legally infirm.” Unsatisfied, private respondents appealed to Respondent Court of Appeals which, as earlier explained, set aside the decision of the trial court and ordered the registration of the title in the name of Teodoro Abistado. The subsequent motion for reconsideration was denied in the challenged CA Resolution dated November 19, 1991. The Director of Lands represented by the Solicitor General thus elevated this recourse to us. This Court notes that the petitioner’s counsel anchored his petition on Rule 65. This is an error. His remedy should be based on Rule 45 because he is appealing a final disposition of the Court of Appeals. Hence, we shall treat his petition as one for

review under Rule 45, and not for certiorari under Rule 65.[9]

The Court’s Ruling

The Issue

We find for petitioner.

Petitioner alleges that Respondent Court of Appeals committed “grave abuse of discretion”[10] in holding–

Newspaper Publication Mandatory

“x x x that publication of the petition for registration of title in LRC Case No. 86 need not be published in a newspaper of general circulation, and in not dismissing LRC Case No. 86 for want of such publication.” Petitioner points out that under Section 23 of PD 1529, the notice of initial hearing shall be “published both in the Official Gazette and in a newspaper of general circulation.” According to petitioner, publication in the Official Gazette is “necessary to confer jurisdiction upon the trial court, and xxx in xxx a newspaper of general circulation to comply with the notice requirement of due process.”[11] Private respondents, on the other hand, contend that failure to comply with the requirement of publication in a newspaper of general circulation is a mere “procedural defect.” They add that publication in the Official Gazette is sufficient to confer jurisdiction.[12] In reversing the decision of the trial court, Respondent Court of Appeals ruled:[13] “x x x although the requirement of publication in the Official Gazette and in a newspaper of general circulation is couched in mandatory terms, it cannot be gainsaid that the law also mandates with equal force that publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court.” Further, Respondent Court found that the oppositors were afforded the opportunity “to explain matters fully and present their side.” Thus, it justified its disposition in this wise:[14] “x x x We do not see how the lack of compliance with the required procedure prejudiced them in any way. Moreover, the other requirements of: publication in the Official Gazette, personal notice by mailing, and posting at the site and other conspicuous places, were complied with and these are sufficient to notify any party who is minded to make any objection of the application for registration.”

The pertinent part of Section 23 of Presidential Decree No. 1529 requiring publication of the notice of initial hearing reads as follows: “Sec. 23. Notice of initial hearing, publication, etc. -- The court shall, within five days from filing of the application, issue an order setting the date and hour of the initial hearing which shall not be earlier than forty-five days nor later than ninety days from the date of the order. The public shall be given notice of initial hearing of the application for land registration by means of (1) publication; (2) mailing; and (3) posting. 1.

By publication. --

Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land Registration shall cause a notice of initial hearing to be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons appearing to have an interest in the land involved including the adjoining owners so far as known, and `to all whom it may concern.' Said notice shall also require all persons concerned to appear in court at a certain date and time to show cause why the prayer of said application shall not be granted. xxx

xxx

xxx”

Admittedly, the above provision provides in clear and categorical terms that publication in the Official Gazette suffices to confer jurisdiction upon the land registration court. However, the question boils down to whether, absent any publication in a newspaper of general circulation, the land registration court can validly confirm and register the title of private respondents.

We answer this query in the negative. This answer is impelled by the demands of statutory construction and the due process rationale behind the publication requirement.

property is taken from concerned parties and registered in the name of the applicant, said parties must be given notice and opportunity to oppose.

The law used the term “shall” in prescribing the work to be done by the Commissioner of Land Registration upon the latter’s receipt of the court order setting the time for initial hearing. The said word denotes an imperative and thus indicates the mandatory character of a statute.[15] While concededly such literal mandate is not an absolute rule in statutory construction, as its import ultimately depends upon its context in the entire provision, we hold that in the present case the term must be understood in its normal mandatory meaning. In Republic vs. Marasigan,[16] the Court through Mr. Justice Hilario G. Davide, Jr. held that Section 23 of PD 1529 requires notice of the initial hearing by means of (1) publication, (2) mailing and (3) posting, all of which must be complied with. “If the intention of the law were otherwise, said section would not have stressed in detail the requirements of mailing of notices to all persons named in the petition who, per Section 15 of the Decree, include owners of adjoining properties, and occupants of the land.” Indeed, if mailing of notices is essential, then by parity of reasoning, publication in a newspaper of general circulation is likewise imperative since the law included such requirement in its detailed provision.

It may be asked why publication in a newspaper of general circulation should be deemed mandatory when the law already requires notice by publication in the Official Gazette as well as by mailing and posting, all of which have already been complied with in the case at hand. The reason is due process and the reality that the Official Gazette is not as widely read and circulated as newspapers and is oftentimes delayed in its circulation, such that the notices published therein may not reach the interested parties on time, if at all. Additionally, such parties may not be owners of neighboring properties, and may in fact not own any other real estate. In sum, the allencompassing in rem nature of land registration cases, the consequences of default orders issued against the whole world and the objective of disseminating the notice in as wide a manner as possible demand a mandatory construction of the requirements for publication, mailing and posting.

It should be noted further that land registration is a proceeding in rem.[17] Being in rem, such proceeding requires constructive seizure of the land as against all persons, including the state, who have rights to or interests in the property. An in rem proceeding is validated essentially through publication. This being so, the process must strictly be complied with. Otherwise, persons who may be interested or whose rights may be adversely affected would be barred from contesting an application which they had no knowledge of. As has been ruled, a party as an owner seeking the inscription of realty in the land registration court must prove by satisfactory and conclusive evidence not only his ownership thereof but the identity of the same, for he is in the same situation as one who institutes an action for recovery of realty.[18] He must prove his title against the whole world. This task, which rests upon the applicant, can best be achieved when all persons concerned -- nay, “the whole world” -- who have rights to or interests in the subject property are notified and effectively invited to come to court and show cause why the application should not be granted. The elementary norms of due process require that before the claimed

Admittedly, there was failure to comply with the explicit publication requirement of the law. Private respondents did not proffer any excuse; even if they had, it would not have mattered because the statute itself allows no excuses. Ineludibly, this Court has no authority to dispense with such mandatory requirement. The law is unambiguous and its rationale clear. Time and again, this Court has declared that where the law speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation; there is room only for application.[19] There is no alternative. Thus, the application for land registration filed by private respondents must be dismissed without prejudice to reapplication in the future, after all the legal requisites shall have been duly complied with. WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The application of private respondent for land registration is DISMISSED without prejudice. No costs. SO ORDERED. Davide, Jr., Melo, and Francisco, JJ., concur. Narvasa, C.J., (Chairman), on leave.

SECOND DIVISION [G.R. No. 87134. January 20, 2000] PHILIPPINE REGISTERED ELECTRICAL PRACTITIONERS, INC. (PREPI), represented by BEN ROSETE, HERMINIO S. RAMIREZ, CASIANO PAULINO, NONATO VILLANUEVA, JR., RENATO AME, MARIO BLAS, SAMUEL BRAVO, AMOR CRUZ, FRANCISCO DULLER, BENITO ESPAÑOL, PABLO FERNANDEZ, WILFREDO GORRICHO, GRACIANO LAPID, LUISITO MAGANA, FERNANDO MALABANAN, MARTIN MARTINEZ, EDGARDO MERIDA, ARNEL PALILIO, GAUDIOSO SEURA, ZENON TUBIO, MARIANO YAPE, AND NILO MONTALBAN, petitioners, vs. JULIO FRANCIA, JR., in his capacity as COMMISSIONER OF PROFESSIONAL REGULATION COMMISSION, MEDERICO T. CORTEZ, in his capacity as CHAIRMAN OF THE BOARD OF ELECTRICAL ENGINEERING, and HONORABLE REBECCA SALVADOR, JUDGE OF THE REGIONAL TRIAL COURT OF MANILA, BRANCH 1, respondents. RESOLUTION QUISUMBING, J.: For review on certiorari is the decision of the Regional Trial Court, Manila, Branch 1, which dismissed PREPI’s petition for declaratory relief and/or prohibition, for lack of merit. Petitioner is an organization composed of professional electrical engineers, associate electrical engineers, assistant electrical engineers, and master electricians. It is represented in this case by several of its officers and members. ScÓ lex On July 6, 1988, petitioner filed before the RTC an action for declaratory relief and/or prohibition, assailing the constitutional validity of Resolution No. 1, Series of 1986, issued by the Board of Electrical Engineering, then headed by respondent Mederico T. Cortez. The Professional Regulation Commission, then headed by respondent Julio

Francia, Jr., approved said resolution on February 10, 1986. In said resolution, the Board adopted guidelines for the implementation of the Continuing Professional Education (CPE) Program for electrical engineers. Included therein is a requirement that beginning January 1, 1988, every electrical engineer must earn credit units of CPE before his license could be renewed. To earn credit units, he must first apply for accreditation with the Institute of Integrated Electrical Engineers of the Philippines (IIEE). Petitioner assailed before the trial court the resolution as violative of the Constitution’s equal protection and due process clauses, prohibition against bills of attainder and ex post facto laws, and mandate for the protection of the rights of workers.

3. A duly registered electrical engineering practitioner should have the following credit units for a period of three (3) years: xä law Registered Master Electrician 100 credit units Registered Electrical Engineer 200 credit units (All grades)."[1] After hearing, the trial court dismissed petitioner’s action, on the ground that petitioner failed to establish a clear and unequivocal violation of the Constitution or statute. It pointed out that all reasonable doubts should be resolved in favor of the validity of a statute. According to the trial court, the questioned resolution is a valid implementation of Section 3, Republic Act No. 184,[2] and Section 6, Presidential Decree No. 223.[3]

Following are the relevant portions of the resolution: The dispositive portion of the RTC decision reads: "III. Possible Exemption to the CPE Guidelines A. An electrical engineering practitioner who has reached the age of 60. B. A top government official of at least Vice-President or Bureau Director level, or equivalent ranking position in private sector. C. A practitioner undergoing post-doctoral studies during his current registration period. D. Those recommended by the PRC or by [the] Board of Electrical Engineering. IV. Method of Evaluation and Credit Units A. Basic Requirements

"WHEREFORE, the petition for declaratory relief and/or prohibition with prayer for injunction is hereby dismissed, for lack of merit and the temporary restraining order issued by this Court on July 13, 1988, is lifted and set aside. No pronouncement as to costs. SO ORDERED."[4] In this direct appeal to the Supreme Court on pure questions of law, petitioner now raises the following assignment of errors: Scä I........THE LOWER COURT GRIEVOUSLY ERRED IN DECLARING BOARD RESOLUTION NO. 1 SERIES OF 1986, CONSTITUTIONAL.

1. PRC requires that a registered Master Electrician or Electrical Engineer [of] any grade shall renew his license once every three (3) years.

II........THE LOWER COURT GRIEVOUSLY ERRED IN HOLDING THAT THE RESPONDENTS PRC AND BEE ARE VESTED WITH POWERS TO ADOPT AND PROMULGATE RULES SUCH AS THE RESOLUTION IN QUESTION.

2. As a condition precedent to the above, he shall first secure from IIEE’s Continuing Professional Education Committee a certificate that he has complied with PRC’s requirements for Continuing Professional Education.

III........THE LOWER COURT GRIEVOUSLY ERRED IN FINDING THAT BOARD RESOLUTION NO. 1 SERIES OF 1986, IS VALID, LEGAL AND NOT TAINTED WITH GRAVE ABUSE OF DISCRETION.

IV........THE LOWER COURT GRIEVOUSLY ERRED IN FINDING THAT THE PETITIONERS’ FEAR AND APPREHENSION THAT THE CPE PROGRAM WOULD BE BURDENSOME AND A SOURCE OF RED TAPE IS ONLY IMAGINARY THAN REAL.[5] Essentially, petitioner raises the following issues in this petition for review: (1) whether or not the Board of Electrical Engineering had authority to issue the resolution in question; and, if it did, (2) whether or not the resolution issued pursuant to that authority is constitutionally valid. Petitioner argues that the PRC and the Board did not have the requisite authority to issue said resolution. Citing Section 6(a) of P.D. No. 223, petitioner claims that the Board only has visitation powers, "to see [to it] that proper compliments of professionals are employed and given proper responsibilities and remuneration." In other words, petitioner contends that the Board may only conduct inspections of sites where electrical engineering jobs are conducted, primarily to safeguard the welfare of electrical engineers. Petitioner contends further that implementation of the resolution would amount to deprivation of property without due process of law, particularly because an electrical engineer’s or electrician’s license will not be renewed if he failed to obtain any or enough units under the CPE program. Petitioner points out that under Section 32 of R.A. No. 184, the Board has the power to suspend licenses only upon proper notice and hearing. Sclawä Petitioner argues that the license to practice a profession is not a mere privilege but a property right. If it were, indeed, only a privilege, it could not be taken away by the simple expedient of passing a board resolution. Petitioner asserts that such license may only be revoked after the license holder is found guilty of the offenses specified in R.A. No. 184 or P.D. No. 223. Since failure to earn units under the CPE program is not among those enumerated, it cannot be made a ground for the revocation of an electrical engineer’s or electrician’s license. Petitioner also argues that the classification of persons who may be exempt from the CPE program requirement appears to be arbitrary. Petitioner points out that "…electrical engineers and master electricians who are in the responsible practice of designing and constructing

electrical installations are excluded in the said exemptions and are not given any credit or merit."[6] Petitioner further contends that the questioned board resolution does not provide any criteria for the PRC or Board to follow in recommending exemptions to the CPE requirement. Petitioner also assails the resolution as violative of the equal protection clause since only electrical engineers are subject to the requirements mentioned therein. Members of other professions are not similarly required. For the respondents, the Solicitor General submits that, contrary to petitioner’s assertion, the Board had the authority to promulgate the questioned resolution pursuant to Section 3, R.A. No. 184 and Section 6, P.D. No. 223. The latter law is not limited to the power of inspection and visitation as petitioner contends. It includes the power to formulate policies and programs as may be necessary to improve the practice of a profession. The Solicitor General further contends that Resolution No. 1, Series of 1986 is not violative of the Constitution. He dismisses as unfounded petitioner’s fears regarding the automatic revocation of license for non-compliance with the CPE requirement. Nothing in the questioned resolution provides for such automatic revocation, according to him; there is, thus, no violation of the due process clause. Neither does the resolution violate the equal protection clause since not all electrical engineers are similarly situated, he further argues. He claims that there are those who, by reason of age and expertise, may reasonably be exempted from the CPE requirement. Equal protection, he concludes, does not require universal application of laws but only equality among equals. The Solicitor General likewise contends that the resolution is not a bill of attainder since it does not seek to punish but only to regulate the practice of a profession. Neither is it an ex post facto law, he says, since the ex post facto principle only applies to penal statutes and not to regulations involving civil rights such as the practice of a profession. Korteä In his view also, there is no violation of Article VI, Section 28 of the Constitution, which states, in its second paragraph as follows:

"(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the government." The Solicitor General opines that this provision is simply not pertinent nor applicable in this case. For the fees that may be charged electrical engineers in complying with the CPE program, he argues, are not the duties or imposts referred to in the preceding constitutional provision. The issue before this Court boils down to (a) whether the Board of Electrical Engineers in the light of the provisions of R.A. No. 184, had the authority to issue the questioned resolution; and (b) whether the resolution itself violates certain provisions of the present Constitution. We begin by noting that the Board issued the resolution as a means purportedly to upgrade the knowledge and skills of electrical engineers. Specifically, the resolution has the following objectives: 1........To upgrade and update technical knowledge and skills of Electrical Engineering Practitioners; 2........To effect transfer of technology from experts and specialists to Electrical Engineering Practitioners; 3........To stimulate self-improvement, and thus enhance practitioner’s competence and self-confidence; and 4........To broaden practitioner’s horizon to include awareness of his social responsibility.[7] Effectivity of the resolution has been expressly made subject to the approval of the PRC and its publication in the Official Gazette, as may be seen from its effectivity clause. RtcÓ spped "VI. Effectivity These Rules shall take effect upon approval hereof by the Commission and after fifteen (15) days following the completion of its publication in the Official Gazette."[8]

We further note that Section 3, of R.A. No. 184, mandates the Board to recommend to the PRC the adoption of "measures as may be deemed proper for the maintenance of good ethics and standards in the practice of electrical engineering in the Philippines…" (Underscoring supplied.) Moreover, Section 6(a) of P.D. No. 223 gives the various professional boards the power "[t]o look from time to time into the conditions affecting the practice of the profession or occupation under their respective jurisdictions and whenever necessary, adopt such measures as may be deemed proper for the enhancement of the profession or occupation and/or the maintenance of high professional, ethical and technical standards…" (Underscoring supplied.) For said purposes, "the members of a Board may personally or through subordinate employees of the Commission conduct ocular inspection or visit industrial, mechanical, electrical or chemical plants or works, hospitals, clinics and other engineering works…" On this point, petitioner now insists that the authority of the Board is limited to the conduct of ocular inspections. But nothing in said provision in any way imposes such an interpretation. The Board in fact may even do away with ocular inspections, as can be gleaned from the use of the word "may", implying that the conduct of ocular inspections is merely directory and not mandatory. For sure, conducting ocular inspections is only one way of ensuring compliance with laws and rules relative to the professional practice of electrical engineering. But it certainly is not the only way. ScmisÓ We are, therefore, constrained to concede to the Board the existence of the power to issue the assailed resolution, in pursuance of its mandates under R.A. 184 and P.D. 223. What now remains is a determination of whether or not said resolution suffers from constitutional infirmities. Supervening events, however, have rendered moot this constitutional inquiry. On July 25, 1995, President Fidel V. Ramos issued Executive Order No. 266, entitled "Institutionalization of the Continuing Professional Education (CPE) Programs of the Various Professional

Regulatory Boards (PRBs) under the Supervision of the Professional Regulation Commission (PRC)." E.O. No. 266 found it imperative to impose upon registered professionals the completion of the CPE as a pre-requisite for the renewal of their licenses. Avowedly, CPE would enable the professionals "not only to upgrade or improve their technical knowledge and skills but also to keep them abreast with modern trends and technology in their respective professions, thereby assuring the rendition of highly qualitative professional service/s that will be globally competitive under the General Agreement on Trade in Services (GATS) and at the same time securing the safety and protection of the public."[9] In fact, E.O. No. 266 provides that: "SECTION 1. The completion by professional licensees of the Continuing Professional Education (CPE) programs adopted by all Boards is hereby imposed as a mandatory requirement for the renewal of professional licenses." (Underscoring supplied.) For its part, the PRC issued Resolution No. 507, Series of 1997,[10] entitled "Standardized Guidelines and Procedures for the Implementation of the Continuing Professional Education (CPE) Programs for all Professions." This resolution expressly repealed "other Resolutions, circulars or other issuances promulgated by the PRC and Professional Regulatory Boards providing for, or having any bearing on the implementation of the CPE programs, activities or sources…"[11] Thus, the assailed BEE Resolution No. 1, Series of 1986, providing for guidelines on CPE for electrical engineers, is no longer in effect now. WHEREFORE, the instant petition is DENIED for being moot and academic. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.2/22/00 9:43 AM

[G.R. No. 122641. January 20, 1997] BAYANI SUBIDO, JR. and RENE PARINA, petitioners, vs. THE HONORABLE SANDIGAN-BAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION DAVIDE, JR., J.: In this petition for certiorari under Rule 65 of the Rules of Court, the petitioners seek to set aside, on ground of grave abuse of discretion amounting to lack of jurisdiction, the following acts of the respondent Sandiganbayan in Criminal Case No. 22825: (a) the Resolution[1] of 25 October 1995 which denied the petitioners’ Motion to Quash of 28 August 1995 and Supplementary Motion to Quash of 7 October 1995; (b) the Order[2] of 10 November 1995 which denied the petitioners’ motion for reconsideration; and (c) the Order[3] of 10 November 1995 which entered a plea of not guilty for the petitioners and set pre-trial on 12 January 1996. In Criminal Case No. 22825, the petitioners were charged with Arbitrary Detention, defined and penalized by Article 124 of the Revised Penal Code (RPC), under an information dated 17 July 1995 (but filed on 28 July 1995), the accusatory portion of which reads as follows: That on or about June 25, 1992, or sometime subsequent thereto, in Mandaluyong, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, Bayani Subido, Jr., being then a Commissioner of the Bureau of Immigration and Deportation (BID) and accused Rene Parina, being then a BID Special Agent, while in the performance of their official functions, and conspiring and confederating with each other, did then and there wilfully, unlawfully and feloniously cause the issuance and implementation of a warrant of arrest dated June 25, 1992 against James J. Maksimuk, said accused knowing fully well that the BID Decision dated June 6, 1991, requiring Maksimuk's deportation has not as yet become final and executory considering the pendency of a Motion for Reconsideration, resulting in the detention of the latter for a period of forty-three (43) days and, thus, causing him undue injury. CONTRARY TO LAW.[4] The arraignment was originally set for 28 August 1995.[5]

THIRD DIVISION

On 28 August 1995, however, the petitioners filed a Motion to Quash,[6] contending that in view of the effectivity of R.A. No. 7975[7] on 6 May 1995, amending §4 of P.D. No. 1606,[8] the Sandiganbayan had no jurisdiction over both the offense charged and the persons of the accused. They argued that: (1) Arbitrary Detention did not fall within Chapter II, §2, Title VII of the RPC, but within §1, Chapter 1, Title II (Crimes Against the Fundamental Laws of the State), hence, not covered by R.A. No. 7975 and, therefore, the case should have been filed with the Regional Trial Court (RTC) of Manila; (2) R.A. No. 7975 should be given prospective application and at the time the case was filed, petitioner Subido was already a private person since he was separated from the service on 28 February 1995; while petitioner Parina did not hold a position corresponding to salary grade “27”; and (3) penal laws must be strictly construed against the State. In compliance with the order of the Sandiganbayan, the prosecution filed its Opposition to the Motion to Quash[9] on 28 September 1995. It contended that it was clear from §4(b) of R.A. No. 7975 that the Sandiganbayan had jurisdiction over both the offense charged and the persons of the accused considering that “the basis of its jurisdiction xxx is the position of the accused in the government service when the offense charged was committed and not the nature of the offense charged, provided the said offense committed by the accused was in the exercise of his duties and in relation to his office.” The fact then that accused Subido was already a private individual was of no moment. In a Supplement to the Motion to Quash[10] filed on 9 October 1995, the petitioners further asserted that: (1) the allegations in the information were vague; (2) under §1, Rule VIII of Memorandum Order (MO) No. 04-92 (Rules of Procedure to Govern Deportation Proceedings), the grant or denial of bail to an alien in a deportation proceeding was discretionary upon the Commissioner, hence could not be subject to a charge of arbitrary detention; (3) petitioner Subido was separated from the service before the effectivity of R.A. No. 7975, hence retroactive application thereof would be prejudicial to him; and (4) at the time the information was filed, petitioner Parina was not occupying a position corresponding to salary grade “27” or higher, as prescribed by R.A. No. 6758.[11] In its Rejoinder[12] filed on 20 October 1995, the prosecution maintained that with §4 of MO No. 04-92,

Salazar v. Achacoso,[13] and Gatchalian v. CID,[14] the only instance when an alien facing deportation proceedings could be arrested by virtue of a warrant of arrest was when the Commissioner issued the warrant to carry out a final order of deportation, which was absent in this case due to the pendency of the motion for reconsideration timely filed. It further reiterated that the basis of the Sandiganbayan’s jurisdiction over the case was the position of the accused when the crime was committed, not when the information was filed; in any event, petitioner Subido’s position as a Commissioner of the Bureau of Immigration was classified even higher than grade “27” under the Compensation and Classification Act of 1989. In its Resolution[15] of 25 October 1995, the Sandiganbayan denied the petitioners’ Motion to Quash and the Supplement thereto, ruling: 1. [T]he jurisdiction of the Sandiganbayan remains not only over the specific offenses enumerated in Sec. 4 of P.D. 1606 as Amended by R.A. 7975 but over offenses committed in relation to their office, regardless of the penalty provided that the salary of the accused is at Grade 27 under [R.A. 6758] or that he is occupying any of the position described in Sec. 4(a)e of the law, which includes the position of Deputy Commissioner. 2. [A]t this time the position of the prosecution in response to this Court's misgivings stated in its Order of August 28, 1995, appears to be that aliens may not be arrested except upon execution of a deportation order, a matter which can be taken up at further proceedings after the arraignment of the accused. It likewise set arraignment on 10 November 1995. To abort arraignment, the petitioners filed on 9 November 1995 a motion for reconsideration[16] and submitted that under the vast power of the Commissioner of the Department of Immigration, he could authorize the arrest and detention of an alien even though a deportation order had not yet become final, in light of the preventive, not penal, nature of a deportation order.[17] On 10 November 1995, the Sandiganbayan issued an Order[18] denying the petitioners’ motion for reconsideration, and a second Order[19] entering a plea of not guilty in favor of the petitioners since they objected to arraignment, setting pre-trial on 12 January 1996, and

making of record that arraignment was conducted with the reservation of the petitioners to seek redress with this Court from the denial of their motion for reconsideration. Hence, this special civil action, where the parties, in the main, reiterate the arguments they raised before the Sandiganbayan. In due time, we resolved to give due course to the petition and required the parties to file their respective memoranda, which they subsequently complied with.

In cases where none of the principal accused are occupying positions corresponding to salary grade “27” or higher, as prescribed in said Republic Act No. 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129.

The petition must be dismissed. Sections 2 and 7 of R.A. No. 7975 pertinently provide as follows: Sec. 2. Section 4 of [P.D. No. 1606] is hereby further amended to read as follows: Sec. 4. Jurisdiction. -- The Sandiganbayan shall exercise original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense; (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: xxx (5) All other national and local officials classified as Grade “27” and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office. c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. R.A. No. 7975 took effect on 16 May 1995,[20] or one year, ten months and twenty-one days after the alleged commission of the crime charged in Criminal Case No. 22825 before the Sandiganbayan. The provisions of §4 of P.D. No. 1606, as amended by E.O. No. 184, but prior to their further amendment by R.A. No. 7975, are then the applicable provisions. §4 of P.D. No. 1606 then pertinently provided as follows: SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise: (a) Exclusive appellate jurisdiction in all cases involving: (1) violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code; (2) other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment of six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.

In Aguinaldo v. Domagas,[21] and subsequently in Sanchez v. Demetriou,[22] Natividad v. Felix,[23] and Republic v. Asuncion,[24] we ruled that for the Sandiganbayan to have exclusive original jurisdiction over offenses or felonies committed by public officers or employees under the aforementioned §4(a)(2), it was not enough that the penalty prescribed therefor was higher than prision correccional or imprisonment for six years, or a fine of P6,000.00; it was likewise necessary that the offenses or felonies were committed in relation to their office.[25] The information in Criminal Case No. 22825 before the Sandiganbayan charged the petitioners with the crime of arbitrary detention which was committed “while in the performance of their official functions,” or, evidently, in relation to their office. As the detention allegedly lasted for a period of 43 days, the prescribed penalty is prision mayor,[26] with a duration of six years and one day to twelve years. Indisputably, the Sandiganbayan has jurisdiction over the offense charged in Criminal Case No. 22825. The petitioners, however, urge us to apply §4 of P.D. No. 1606, as amended by R.A. No. 7975, the law in force at the time of the filing of the information in Criminal Case No. 22825. They submit that under the new law, the Sandiganbayan has no jurisdiction over the offense charged and their persons because at the time of the filing of the information, petitioner Subido was already a private individual, while the classification of petitioner Parina’s position was lower than grade “27.” We are not persuaded. The petitioners overlook the fact that for purposes of §4 of P.D. No. 1606, as amended, the reckoning point is the time of the commission of the crime. This is plain from the last clause of the opening sentence of paragraph (a), §4 of P.D. No. 1606, as further amended by R.A. No. 7975. Petitioner Subido never denied the respondents’ claim that as “commissioner of Immigration and Deportation [now Bureau of Immigration] at the time of the commission of the crime [he was] classified as having a position even higher than grade 27.”[27] Both parties are, however, agreed that at such time petitioner Parina was holding a position with a classification much lower than salary grade “27.” There can, therefore, be no doubt that the

Sandiganbayan had jurisdiction over the crime allegedly committed by Subido. That petitioner Parina held a position with a salary grade of less than “27” at the time of the commission of the alleged arbitrary detention is of no moment. He is prosecuted as a co-conspirator of petitioner Subido, a principal accused, who held a position higher than grade “27.” The following provision of §4 of P.D. No. 1606, as amended by R.A. No. 7975, then applies: In cases where none of the principal accused are occupying the positions corresponding to salary grade “27” or higher, as prescribed in the said Republic Act No. 6758 ... exclusive jurisdiction therefor shall be vested in the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129. Finally, the petitioners’ invocation of the prohibition against the retroactivity of penal laws is misplaced. Simply put, R.A. No. 7975 is not a penal law. Penal laws or statutes are those acts of the Legislature which prohibit certain acts and establish penalties for their violation;[28] or those that define crimes, treat of their nature, and provide for their punishment.[29] R.A. No. 7975, in further amending P.D. No. 1606 as regards the Sandiganbayan’s jurisdiction, mode of appeal, and other procedural matters, is clearly a procedural law, i.e., one which prescribes rules and forms of procedure of enforcing rights or obtaining redress for their invasion, or those which refer to rules of procedure by which courts applying laws of all kinds can properly administer justice.[30] Moreover, the petitioners even suggest that it is likewise a curative or remedial statute; one which cures defects and adds to the means of enforcing existing obligations.[31] As noted by the petitioners, previous to the enactment of R.A. No. 7975: As before, not [sic] matter what kind of offense, so long as it is alleged that the crime is committed in relation to the office of the public official, the Sandiganbayan had jurisdiciton to try and hear the case, such that in many cases accused persons even from the far away parts of the country, Mindanao, Visayas and the northern parts of Luzon had to come personally to Manila to attend and appear for cases filed against them, considering that the Sandiganbayan has its office/court in Manila.

The said R.A. No. 7975 changed this lamentable situation. For no as so provided in the said law, there ha[s] been a modification that benefits [the] accused xxx in the sense that now where none of the principal accused are occupying positions corresponding to salary grade “27” or higher as prescribed by Republic Act No. 6758 xxx exclusive jurisdiction there shall be vested now in the proper Regional Trial and Metropolitan Trial Court and Municipal Circuit Trial Court, as the case may be xxx. [32] All told, as a procedural and curative statute, R.A. No. 7975 may validly be given retroactive effect, there being no impairment of contractual or vested rights. [33] WHEREFORE, the instant petition is DISMISSED, and the questioned resolution and orders of the respondent Sandiganbayan are AFFIRMED. Costs against the petitioners. SO ORDERED. Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur. THIRD DIVISION [G.R. No. 138137. March 8, 2001] PERLA S. ZULUETA, petitioner, vs. ASIA BREWERY, Inc., respondent. DECISION PANGANIBAN, J.: When two or more cases involve the same parties and affect closely related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues involved. Consolidation, when appropriate, also contributes to the declogging of court dockets. The Case Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, questioning the August 4, 1998 Decision[1] of the Court of Appeals (CA) in CA-GR SP No. 45020; as well as the February 23, 1999 Resolution[2] denying petitioner’s Motion for Reconsideration. The decretal portion of the CA Decision reads as follows:

“WHEREFORE, the instant petition is given due course. The assailed orders of the Regional Trial Court, Makati City, Branch 142 dated 13 February 1997 and 19 May 1997 are hereby ANNULED and SET ASIDE.

On August 18, 1997, respondent filed before the Court of Appeals a Petition for Certiorari assailing Judge Parentala’s February 13, 1997 and May 19, 1997 Orders.

filed earlier) for the reason that the obligation sought to be collected in the Makati case is the same obligation that is also one of the subject matters of the Iloilo case, x x x?”[6]

Ruling of the Court of Appeals

The Court’s Ruling

Setting aside the trial court’s assailed Orders which consolidated the Iloilo and the Makati cases, the CA ruled in this wise:

The Petition is meritorious.

SO ORDERED.” The Facts Respondent Asia Brewery, Inc., is engaged in the manufacture, the distribution and sale of beer; while Petitioner Perla Zulueta is a dealer and an operator of an outlet selling the former’s beer products. A Dealership Agreement governed their contractual relations. On March 30, 1992, petitioner filed before the Regional Trial Court (RTC) of Iloilo, Branch 22, a Complaint against respondent for Breach of Contract, Specific Performance and Damages. The Complaint, docketed as Civil Case No. 20341 (hereafter referred to as the “Iloilo case”), was grounded on the alleged violation of the Dealership Agreement. On July 7, 1994, during the pendency of the Iloilo case, respondent filed with the Makati Regional Trial Court, Branch 66, a Complaint docketed as Civil Case No. 942110 (hereafter referred to as the “Makati case”). The Complaint was for the collection of a sum of money in the amount of P463,107.75 representing the value of beer products, which respondent had delivered to petitioner. In view of the pendency of the Iloilo case, petitioner moved to dismiss the Makati case on the ground that it had split the cause of action and violated the rule against the multiplicity of suits. The Motion was denied by the Makati RTC through Judge Eriberto U. Rosario. Upon petitioner’s Motion, however, Judge Rosario inhibited himself. The case was raffled again and thereafter assigned to Branch 142 of the Makati RTC, presided by Judge Jose Parentala Jr. On January 3, 1997, petitioner moved for the consolidation of the Makati case with the Iloilo case. Granting the Motion, Judge Parentala ordered on February 13, 1997, the consolidation of the two cases. Respondent filed a Motion for Reconsideration, which was denied in an Order dated May 19, 1997.

“There is no common issue of law or fact between the two cases. The issue in Civil Case No. 94-2110 is private respondent’s indebtedness for unpaid beer products; while in Civil Case No. 20341, it is whether or not petitioner (therein defendant) breached its dealership contract with private respondent. “Private respondent in her complaint aforequoted attempts to project a commonality between the two civil cases, but it cannot be denied that her obligation to pay for the beer deliveries can exist regardless of any “stop payment” order she made with regard to the checks. Thus, the rationale for consolidation, which is to avoid the possibility of conflicting decisions being rendered, (Active Wood products, Co. vs. Court of Appeals, 181 SCRA 774, Benguet Corporation, Inc. vs. Court of Appeals, 165 SCRA 27; Vallacar Transit, Inc. vs. Yap, 126 SCRA 503) does not exist.”[3] Hence, this Petition.[4] The Issues In her Memorandum,[5] petitioner interposes the following issues for the consideration of this Court: “a. Were the Orders of February 13, 1997 and May 19, 1997 of the Regional Trial Court, Branch 142 in Makati City (ordering consolidation of Makati Civil Case No. 94-2110 with the Iloilo Civil Case No. 20341) already final and executory when respondent filed its petition for certiorari with the Hon. Court of Appeals such that said Court could no longer acquire jurisdiction over the case and should have dismissed it outright (as it originally did) x x x, instead of due giving course to the petition?; and “b. Independent of the first issue, did the Makati RTC, Branch 142, correctly order the consolidation of the Makati case (which was filed later) with the Iloilo Case (which was

First Issue: Propriety of Petition with the CA Petitioner avers that the Makati RTC’s February 13, 1997 and May 19, 1997 Orders consolidating the two cases could no longer be assailed. Allegedly, respondent’s Petition for Certiorari was filed with the CA beyond the reglementary sixty-day period prescribed in the 1997 Revised Rules of Civil Procedure, which took effect on July 1, 1997. Hence, the CA should have dismissed it outright. The records show that respondent received on May 23, 1997, the Order denying its Motion for Reconsideration. It had, according to petitioner, only sixty days or until July 22, 1997, within which to file the Petition for Certiorari. It did so, however, only on August 21, 1997. On the other hand, respondent insists that its Petition was filed on time, because the reglementary period before the effectivity of the 1997 Rules was ninety days. It theorizes that the sixty-day period under the 1997 Rules does not apply. As a general rule, laws have no retroactive effect. But there are certain recognized exceptions, such as when they are remedial or procedural in nature. This Court explained this exception in the following language: “It is true that under the Civil Code of the Philippines, “(l)aws shall have no retroactive effect, unless the contrary is provided.’ But there are settled exceptions to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. xxx

xxx

xxx

“On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal

meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.”[7] (emphasis supplied) Thus, procedural laws may operate retroactively as to pending proceedings even without express provision to that effect.[8] Accordingly, rules of procedure can apply to cases pending at the time of their enactment.[9] In fact, statutes regulating the procedure of the courts will be applied on actions undetermined at the time of their effectivity. Procedural laws are retrospective in that sense and to that extent.[10] Clearly, the designation of a specific period of sixty days for the filing of an original action for certiorari under Rule 65 is purely remedial or procedural in nature. It does not alter or modify any substantive right of respondent, particularly with respect to the filing of petitions for certiorari. Although the period for filing the same may have been effectively shortened, respondent had not been unduly prejudiced thereby considering that he was not at all deprived of that right. It is a well-established doctrine that rules of procedure may be modified at any time to become effective at once, so long as the change does not affect vested rights.[11] Moreover, it is equally axiomatic that there are no vested rights to rules of procedure.[12] It also bears noting that the ninety-day limit established by jurisprudence cannot be deemed a vested right. It is merely a discretionary prerogative of the courts that may be exercised depending on the peculiar circumstances of each case. Hence, respondent was not entitled, as a matter of right, to the 90-day period for filing a petition for certiorari; neither can it imperiously demand that the same period be extended to it. Upon the effectivity of the 1997 Revised Rules of Civil Procedure on July 1, 1997, respondent’s lawyers still had 21 days or until July 22, 1997 to file a petition for certiorari and to comply with the sixty-day reglementary period. Had they been more prudent and circumspect in regard to the implications of these procedural changes, respondent’s right of action would not have been foreclosed. After all, the 1997 amendments to the Rules of Court were wellpublicized prior to their date of effectivity. At the very least counsel should have asked for as extension of time to file the petition.

Certification of Non-forum Shopping Defective Petitioner likewise assails the validity of the sworn certification against forum-shopping, arguing that the same was signed by counsel and not by petitioner as required by Supreme Court Circular No. 28-91. For his part, respondent claims that even if it was its counsel who signed the certification, there was still substantial compliance with Circular No. 28-91 because, a corporation acts through its authorized officers or agents, and its counsel is an agent having personal knowledge of other pending cases. The requirement that the petitioner should sign the certificate of non-forum shopping applies even to corporations, considering that the mandatory directives of the Circular and the Rules of Court make no distinction between natural and juridical persons. In this case, the Certification should have been signed “by a duly authorized director or officer of the corporation,”[13] who has knowledge of the matter being certified.[14] In Robern Development Corporation v. Quitain,[15] in which the Certification was signed by Atty. Nemesio S. Cañete who was the acting regional legal counsel of the National Power Corporation in Mindanao, the Court held that “he was not merely a retained lawyer, but an NPC in-house counsel and officer, whose basic function was to prepare legal pleadings and to represent NPC-Mindanao in legal cases. As regional legal counsel for the Mindanao area, he was the officer who was in the best position to verify the truthfulness and the correctness of the allegations in the Complaint for expropriation in Davao City. As internal legal counsel, he was also in the best position to know and to certify if an action for expropriation had already been filed and pending with the courts.” Verily, the signatory in the Certification of the Petition before the CA should not have been respondent’s retained counsel, who would not know whether there were other similar cases of the corporation.[16] Otherwise, this requirement would easily be circumvented by the signature of every counsel representing corporate parties. No Explanation for Non-Filing by Personal Service Citing Section 11 of Rule 13 of the 1997 Rules, petitioner also faults respondent for the absence of a written explanation why the Petition with the Court of Appeals was

served on her counsel by registered mail. In reply, respondent points out that such explanation was not necessary, because its counsel held office in Makati City while petitioner and her counsel were in Iloilo City. We agree with petitioner. Under Section 11, Rule 13 of the 1997 Rules, personal service of petitions and other pleadings is the general rule, while a resort to other modes of service and filing is the exception. Where recourse is made to the exception, a written explanation why the service and the filing were not done personally is indispensable, even when such explanation by its nature is acceptable and manifest. Where no explanation is offered to justify the resort to other modes, the discretionary power of the court to expunge the pleading becomes mandatory.[17] Thus, the CA should have considered the Petition as not having been filed, in view of the failure of respondent to present a written explanation of its failure to effect personal service. In sum, the Petition for Certiorari filed with the CA by herein respondent, questioning the orders of consolidation by the Makati RTC, should not have been given due course. Not only was the Petition filed beyond the sixtyday reglementary period; it likewise failed to observe the requirements of non-forum shopping and personal service or filing. All or any of these acts ought to have been sufficient cause for its outright denial. Second Issue: Propriety of Consolidation Apart from procedural problems, respondent’s cause is also afflicted with substantial defects. The CA ruled that there was no common issue in law or in fact between the Makati case and the Iloilo case. The former involved petitioner’s indebtedness to respondent for unpaid beer products, while the latter pertained to an alleged breach of the Dealership Agreement between the parties. We disagree. True, petitioner’s obligation to pay for the beer products delivered by respondent can exist regardless of an alleged breach in the Dealership Agreement. Undeniably, however, this obligation and the relationship between respondent and petitioner, as supplier and distributor respectively, arose from the Dealership Agreement which is now the subject of inquiry in the Iloilo case. In fact, petitioner herself claims that her obligation to pay was

negated by respondent’s contractual breach. In other words, the non-payment -- the res of the Makati case -- is an incident of the Iloilo case. Inasmuch as the binding force of the Dealership Agreement was put in question, it would be more practical and convenient to submit to the Iloilo court all the incidents and their consequences. The issues in both civil cases pertain to the respective obligations of the same parties under the Dealership Agreement. Thus, every transaction as well as liability arising from it must be resolved in the judicial forum where it is put in issue. The consolidation of the two cases then becomes imperative to a complete, comprehensive and consistent determination of all these related issues. Two cases involving the same parties and affecting closely related subject matters must be ordered consolidated and jointly tried in court, where the earlier case was filed.[18] The consolidation of cases is proper when they involve the resolution of common questions of law or facts.[19] Indeed, upon the consolidation of the cases, the interests of both parties in the two civil cases will best be served and the issues involved therein expeditiously settled. After all, there is no question on the propriety of the venue in the Iloilo case. WHEREFORE, the Petition is hereby GRANTED and the assailed Decision REVERSED and SET ASIDE. The Orders of the Makati RTC (Br. 142) dated February 13, 1997 and May 19, 1997 are hereby REINSTATED. No costs. SO ORDERED. Melo (Chairman), Vitug, Gonzaga-Reyes, and SandovalGutierrez, JJ., concur.

THIRD DIVISION [G.R. No. 141530. March 18, 2003] REPUBLIC OF THE PHILIPPINES represented by the NATIONAL CENTENNIAL COMMISSION, petitioner, vs. COURT OF APPEALS, HON. CHRISTOPHER LOCK, in his capacity as the Presiding Judge of Branch 88 of the

Regional Trial Court of Cavite City, and FE A. MANUEL and METROBANK, Cavite City Branch, respondents. DECISION CORONA, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure seeking to annul the Resolution dated March 15, 1999 of the Court of Appeals[1] which dismissed (1) the petition for certiorari filed by the petitioner Republic of the Philippines for having been filed out of time and (2) the subsequent resolution which denied petitioner’s motion for reconsideration. The antecedent facts follow. In line with the centennial celebration of Philippine Independence on June 12, 1998, the government embarked on several commemorative Centennial Freedom Trail (CFT) projects. One of these projects was the construction of the Tejeros Convention Center and the founding site of the Philippine Army on the 3,497 sq. m. property of respondent Fe Manuel located in Tejeros, Rosario, Cavite. The said property was declared by the National Historical Institute (NHI) as a historical landmark in its Resolution No. 2 dated April 19, 1995.[2] To carry out the Tejeros Convention Project, the government, through the National Centennial Commission (NCC), filed on December 4, 1997 a complaint for expropriation against respondents Fe Manuel and Metropolitan Bank and Trust Company (Metrobank).[3] The land was mortgaged by Fe Manuel to Metrobank and was extrajudicially foreclosed by the latter on November 20, 1997.[4] Respondent Fe Manuel interposed no objection to the expropriation as long as just compensation was paid.[5] On May 27, 1998, Presiding Judge Christopher Lock of the Regional Trial Court of Cavite City, Branch 88, dismissed the complaint for expropriation on the ground of lack of cause of action. The trial court ruled that, based on the 1987 Administrative Code,[6] there were: (1) no prior determination by the President as to the necessity or wisdom of the exercise of the right of eminent domain, and (2) no prior written authority for the Solicitor General to institute the expropriation case. Without such conditions precedent, the trial court ruled that plaintiff had no cause of action to file the expropriation case.[7] The trial court also ruled that the NCC had no power under Executive Order

No. 128[8] to acquire real estate properties through negotiated sale, nor to recommend to the President the propriety of taking property through condemnation proceedings. It explained that since the NCC’s life was only up to the June 12, 1998 celebrations, the fear of defendant Metrobank that there would be no more entity to process its claim for just compensation was perfectly valid. Accordingly, the trial court dismissed the complaint for expropriation.[9] On June 17, 1998, petitioner filed a motion for reconsideration of the trial court’s order dismissing its complaint. The trial court denied the motion in its order dated October 6, 1998, a copy of which was received by the petitioner on October 12, 1998.[10] On December 11, 1998, petitioner filed a petition for certiorari before the Court of Appeals, alleging grave abuse of discretion on the part of Judge Christopher Lock for summarily dismissing its complaint and denying its motion for reconsideration.[11] The Court of Appeals dismissed the petition, in its resolution dated March 15, 1999, for having been filed out of time. It also denied petitioner’s motion for reconsideration in its January 13, 2000 resolution.[12] Aggrieved, petitioner filed the instant petition for review, arguing that the Court of Appeals should not have applied to its case the amendment made to Section 4, Rule 65 of the 1997 Rules of Civil Procedure, which took effect on September 1, 1998. Procedural rules, petitioner argued, should not be given retroactive effect where their application would result in injustice. Petitioner invoked Section 6, Rule 1 of the 1997 Rules of Civil Procedure which provides that liberality should be observed in construing the Rules of Court in order to promote its objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Petitioner also called the Court’s attention to the case of Solar Team Entertainment vs. Ricafort,[13] wherein we accorded liberality to the implementation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure.[14] We ruled in the said case that strict compliance with Section 11, Rule 13 thereof shall be required 1 month from the promulgation of the Court’s decision or 2 years from the time the Rules actually took effect. Petitioner said that Solar Team and its case were similar in that both arose about the time when a new amendment was being implemented; hence, its case

should be accorded the same consideration given in Solar Team.[15] In its Memorandum dated September 11, 2001, petitioner invoked A.M. No. 00-2-03-SC which took effect on September 1, 2000, specifically amending Section 4, Rule 65 of the 1997 Rules of Civil Procedure. A.M. No. 00-2-03SC was the amendment reverting to the original rule that the 60-day period for filing a petition for certiorari shall be reckoned from receipt of the order denying the motion for reconsideration.[16] Private respondent Fe Manuel, owner and mortgagor of the land subject of expropriation, interposed no objection to the expropriation in her Comment to the petition for review.[17] She in fact adopted the arguments of the petitioner in her Memorandum.[18] On the other hand, Metrobank asserted that the petition for certiorari was correctly dismissed because it was filed out of time. It argued that when petitioner received the order of the trial court denying its motion for reconsideration on October 12, 1998, the new Section 4, Rule 65 of the 1997 Rules of Civil Procedure, as amended by the Resolution of the Supreme Court En Banc dated July 21, 1998 in Bar Matter No. 803, was already in effect. Said amended rule, effective as of September 1, 1998, provides that the 60day period shall be reckoned from receipt of the assailed decision, order or resolution. Thus, based on this new rule, the petition for certiorari was filed 14 days late.[19] The sole issue at hand is whether or not the petition for certiorari filed by the Republic of the Philippines before the Court of Appeals was filed out of time. The petition is meritorious. In dismissing the petition for certiorari for having been filed out of time, the Court of Appeals applied Section 4, Rule 65 of the 1997 Rules of Civil Procedure, as amended by the July 21, 1998 Bar Matter No. 803, effective September 1, 1998, which provides: Sec. 4. Where and when petition to be filed. ─ The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court, or if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction

over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by the law or the Rules, the petition shall be filed in and cognizable only by the Court of Appeals. If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (Emphasis ours) Strictly speaking, the Court of Appeals did not err in dismissing the petition for having been filed out of time because the prevailing rule at that time provided that the 60-day period for filing a petition for certiorari shall be reckoned from receipt of the assailed decision or order. The period is interrupted when a motion for reconsideration is filed but it starts to run again from receipt of the denial of the said motion for reconsideration. Based on this amendment, respondent Court of Appeals ruled that the filing of the petition for certiorari was 14 days late. The respondent Court of Appeals ruled: In the petition at bench, records show that the Office of the Solicitor General received a copy of the Court a quo’s Order dated May 7, 1998 on June 3, 1998 and that a motion for reconsideration was filed on June 17, 1998. Therefore, there was a lapse of fourteen (14) days from receipt of the assailed Order before the OSG filed a motion for reconsideration. Considering the material dates stated above, the Office of the Solicitor General had only forty-six 46 days left from October 12, 1988 (sic), date when it received the Order denying the motion for reconsideration dated October 6, 1998 or until November 27, 1998 within which to file the instant petition for certiorari. However, the petition was filed only on December 11, 1998 by registered mail. Therefore, it was filed fourteen (14) days late.[20]

However, Section 4, Rule 65 of the 1997 Rules of Civil Procedure as amended by Bar Matter No. 803 effective September 1, 1998, was recently amended by A.M. No. 00-2-03-SC effective September 1, 2000. The recent rule no longer provides that the 60-day period shall be reckoned from receipt of the assailed decision, order or resolution. Instead, it provides that the 60-day period shall be reckoned from receipt of the order denying the motion for reconsideration. The rule at present reads as follows: Sec. 4. When and where petition filed. – The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. It if involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (Emphasis ours) The amendment under A.M. 00-2-03-SC quoted above is procedural or remedial in character. It does not create new or remove vested rights but only operates in furtherance of the remedy or confirmation of rights already existing. It is settled that procedural laws do not come within the legal conception of a retroactive law, or the general rule against retroactive operation of statutes. They may be given retroactive effect to actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure.[21] The retroactive application of A.M. 00-2-03-SC has, in fact, already been ordered by this Court in a number of recent cases, such as Systems Factors Corporation vs. NLRC,

[22] Unity Fishing Development Corporation vs. Court of Appeals, [23] Docena et. al. vs. Lapesura, [24] Pfizer vs. Galan [25] and Universal Robina Corporation et. al. vs. Court of Appeals et. al. [26] Thus, by virtue of this retroactive application of A.M. 00-203-SC, we hold that the instant petition for certiorari was filed on time. In fact, there is no dispute that the petition was filed by petitioner on the 60th day from receipt of the order denying the motion for reconsideration. Petitioner received the denial on October 12, 1998 and it filed the petition for certiorari on December 11, 1998. Clearly therefore the petition was filed on time. WHEREFORE, the petition is GRANTED. The assailed resolutions of the Court of Appeals dated March 15, 1999 and January 13, 2000 are hereby set aside and the case is remanded to the Court of Appeals for further proceedings. No costs. SO ORDERED. Puno, (Chairman), Panganiban, Sandoval-Gutierrez and Carpio-Morales, JJ., concur. [1] Penned by Associate Justice Corona Ibay-Somera and concurred in by Associate Justice Oswald D. Agcaoili and Associate Justice Eloy R. Bello, Jr. Petition, Annex “A”, Rollo, pp. 35-37.

Section 699 of the Revised Administrative Code (RAC), as amended, in the total amount of P40,831.00. Petitioner is a Director II of the National Bureau of Investigation (NBI). He was hospitalized for cholecystitis from March 26, 1990 to April 7, 1990, on account of which he incurred medical and hospitalization expenses, the total amount of which he is claiming from the COA. On May 11, 1990, in a memorandum to the NBI Director, Alfredo S. Lim (Director Lim, for brevity), he requested reimbursement for his expenses on the ground that he is entitled to the benefits under Section 699 1 of the RAC, the pertinent provisions of which read: Sec. 699. Allowances in case of injury, death, or sickness incurred in performance of duty. — When a person in the service of the national government of a province, city, municipality or municipal district is so injured in the performance of duty as thereby to receive some actual physical hurt or wound, the proper Head of Department may direct that absence during any period of disability thereby occasioned shall be on full pay, though not more than six months, and in such case he may in his discretion also authorize the payment of the medical attendance, necessary transportation, subsistence and hospital fees of the injured person. Absence in the case contemplated shall be charged first against vacation leave, if any there be. xxx xxx xxx

[2] Rollo, pp. 13, 51.

G.R. No. 103982 December 11, 1992 ANTONIO A. MECANO, petitioner, vs. COMMISSION ON AUDIT, respondent.

CAMPOS, JR., J.: Antonio A. Mecano, through a petition for certiorari, seeks to nullify the decision of the Commission on Audit (COA, for brevity) embodied in its 7th Indorsement, dated January 16, 1992, denying his claim for reimbursement under

In case of sickness caused by or connected directly with the performance of some act in the line of duty, the Department head may in his discretion authorize the payment of the necessary hospital fees. Director Lim then forwarded petitioner's claim, in a 1st Indorsement dated June 22, 1990, to the Secretary of Justice, along with the comment, bearing the same date, of Gerarda Galang, Chief, LED of the NBI, "recommending favorable action thereof". Finding petitioner's illness to be service-connected, the Committee on Physical Examination of the Department of Justice favorably recommended the payment of petitioner's claim. However, then Undersecretary of Justice Silvestre H. Bello III, in a 4th Indorsement dated November 21, 1990, returned petitioner's claim to Director Lim, having

considered the statements of the Chairman of the COA in its 5th Indorsement dated 19 September 1990, to the effect that the RAC being relied upon was repealed by the Administrative Code of 1987. Petitioner then re-submitted his claim to Director Lim, with a copy of Opinion No. 73, S. 1991 2 dated April 26, 1991 of then Secretary of Justice Franklin M. Drilon (Secretary Drilon, for brevity) stating that "the issuance of the Administrative Code did not operate to repeal or abregate in its entirety the Revised Administrative Code, including the particular Section 699 of the latter". On May 10, 1991, Director Lim, under a 5th Indorsement transmitted anew Mecano's claim to then Undersecretary Bello for favorable consideration. Under a 6th Indorsement, dated July 2, 1991, Secretary Drilon forwarded petitioner's claim to the COA Chairman, recommending payment of the same. COA Chairman Eufemio C. Domingo, in his 7th Indorsement of January 16, 1992, however, denied petitioner's claim on the ground that Section 699 of the RAC had been repealed by the Administrative Code of 1987, solely for the reason that the same section was not restated nor re-enacted in the Administrative Code of 1987. He commented, however, that the claim may be filed with the Employees' Compensation Commission, considering that the illness of Director Mecano occurred after the effectivity of the Administrative Code of 1987. Eventually, petitioner's claim was returned by Undersecretary of Justice Eduardo Montenegro to Director Lim under a 9th Indorsement dated February 7, 1992, with the advice that petitioner "elevate the matter to the Supreme Court if he so desires". On the sole issue of whether or not the Administrative Code of 1987 repealed or abrogated Section 699 of the RAC, this petition was brought for the consideration of this Court. Petitioner anchors his claim on Section 699 of the RAC, as amended, and on the aforementioned Opinion No. 73, S. 1991 of Secretary Drilon. He further maintains that in the event that a claim is filed with the Employees' Compensation Commission, as suggested by respondent, he would still not be barred from filing a claim under the subject section. Thus, the resolution of whether or not there was a repeal of the Revised Administrative Code of

1917 would decide the fate of petitioner's claim for reimbursement. The COA, on the other hand, strongly maintains that the enactment of the Administrative Code of 1987 (Exec. Order No. 292) operated to revoke or supplant in its entirety the Revised Administrative Code of 1917. The COA claims that from the "whereas" clauses of the new Administrative Code, it can be gleaned that it was the intent of the legislature to repeal the old Code. Moreover, the COA questions the applicability of the aforesaid opinion of the Secretary of Justice in deciding the matter. Lastly, the COA contends that employment-related sickness, injury or death is adequately covered by the Employees' Compensation Program under P.D. 626, such that to allow simultaneous recovery of benefits under both laws on account of the same contingency would be unfair and unjust to the Government. The question of whether a particular law has been repealed or not by a subsequent law is a matter of legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and specifically cites the particular law or laws, and portions thereof, that are intended to be repealed. 3 A declaration in a statute, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed is an express repeal; all others are implied repeals. 4 In the case of the two Administrative Codes in question, the ascertainment of whether or not it was the intent of the legislature to supplant the old Code with the new Code partly depends on the scrutiny of the repealing clause of the new Code. This provision is found in Section 27, Book VII (Final Provisions) of the Administrative Code of 1987 which reads: Sec. 27. Repealing Clause. — All laws, decrees, orders, rules and regulations, or portions thereof, inconsistent with this Code are hereby repealed or modified accordingly. The question that should be asked is: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to identify or designate the act or acts that are intended to be repealed. 5 Rather, it is an example of a general repealing provision, as stated in Opinion No. 73, S. 1991. It is a clause which predicates the intended repeal under the condition that substantial

conflict must be found in existing and prior acts. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconcistency and repugnancy exist in the terms of the new and old laws. 6 This latter situation falls under the category of an implied repeal. Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. 7 Hence, before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; 8 otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same from the time of the first enactment. 9 There are two categories of repeal by implication. The first is where provisions in the two acts on the same subject matter are in an irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one. The second is if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law. 10 Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other. 11 Comparing the two Codes, it is apparent that the new Code does not cover nor attempt to cover the entire subject matter of the old Code. There are several matters treated in the old Code which are not found in the new Code, such as the provisions on notaries public, the leave law, the public bonding law, military reservations, claims for sickness benefits under Section 699, and still others. Moreover, the COA failed to demonstrate that the provisions of the two Codes on the matter of the subject claim are in an irreconcilable conflict. In fact, there can be no such conflict because the provision on sickness benefits of the nature being claimed by petitioner has not been restated in the Administrative Code of 1987.

However, the COA would have Us consider that the fact that Section 699 was not restated in the Administrative Code of 1987 meant that the same section had been repealed. It further maintained that to allow the particular provisions not restated in the new Code to continue in force argues against the Code itself. The COA anchored this argument on the whereas clause of the 1987 Code, which states: WHEREAS, the effectiveness of the Government will be enhanced by a new Administrative Code which incorporate in a unified document the major structural, functional and procedural principles and rules of governance; and xxx xxx xxx It argues, in effect, that what is contemplated is only one Code — the Administrative Code of 1987. This contention is untenable. The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the prior act, since the new statute may merely be cumulative or a continuation of the old one. 12 What is necessary is a manifest indication of legislative purpose to repeal. 13 We come now to the second category of repeal — the enactment of a statute revising or codifying the former laws on the whole subject matter. This is only possible if the revised statute or code was intended to cover the whole subject to be a complete and perfect system in itself. It is the rule that a subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of the former statute. 14 When both intent and scope clearly evidence the idea of a repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed repealed. 15 Furthermore, before there can be an implied repeal under this category, it must be the clear intent of the legislature that the later act be the substitute to the prior act. 16 According to Opinion No. 73, S. 1991 of the Secretary of Justice, what appears clear is the intent to cover only those aspects of government that pertain to administration, organization and procedure, understandably because of the many changes that transpired in the government structure since the enactment of the RAC decades of years ago. The COA challenges the weight that this

opinion carries in the determination of this controversy inasmuch as the body which had been entrusted with the implementation of this particular provision has already rendered its decision. The COA relied on the rule in administrative law enunciated in the case of Sison vs. Pangramuyen 17 that in the absence of palpable error or grave abuse of discretion, the Court would be loathe to substitute its own judgment for that of the administrative agency entrusted with the enforcement and implementation of the law. This will not hold water. This principle is subject to limitations. Administrative decisions may be reviewed by the courts upon a showing that the decision is vitiated by fraud, imposition or mistake. 18 It has been held that Opinions of the Secretary and Undersecretary of Justice are material in the construction of statutes in pari materia. 19 Lastly, it is a well-settled rule of statutory construction that repeals of statutes by implication are not favored. 20 The presumption is against inconsistency and repugnancy for the legislature is presumed to know the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. 21 This Court, in a case, explains the principle in detail as follows: "Repeals by implication are not favored, and will not be decreed unless it is manifest that the legislature so intended. As laws are presumed to be passed with deliberation with full knowledge of all existing ones on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to some matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure renewed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier. 22

benefits as provided for in Section 699 of the Revised Administrative Code . . . whose benefits are administered by the system (meaning SSS or GSIS) or by other agencies of the government." WHEREFORE, premises considered, the Court resolves to GRANT the petition; respondent is hereby ordered to give due course to petitioner's claim for benefits. No costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, GriñoAquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo and Melo, JJ., concur. Gutierrez, Jr., J., concur in the result.

I Petitioner filed two administrative cases against respondent Naomi C. Corral, the incumbent Mayor of Tiwi, Albay with the Sangguniang Panlalawigan of Albay, to wit: (1) Administrative Case No. 02-92 for abuse of authority and/or oppression for non-payment of accrued leave benefits due the petitioner amounting to P36,779.02. (2) Administrative Case No. 05-92 for dishonesty and abuse of authority for installing a water pipeline which is being operated, maintained and paid for by the municipality to service respondent's private residence and medical clinic. On July 1, 1993, the Sangguniang Panlalawigan disposed the two Administrative cases in the following manner: (1) Administrative Case No. 02-92

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 112099 February 21, 1995 ACHILLES C. BERCES, SR., petitioner, vs. HON. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR., CHIEF PRESIDENTIAL LEGAL COUNSEL ANTONIO CARPIO and MAYOR NAOMI C. CORRAL OF TIWI, ALBAY, respondents.

ACCORDINGLY, respondent Mayor Naomi C. Corral of Tiwi, Albay, is hereby ordered to pay Achilles Costo Berces, Sr. the sum of THIRTY-SIX THOUSAND AND SEVEN HUNDRED SEVENTY-NINE PESOS and TWO CENTAVOS (P36,779.02) per Voucher No. 352, plus legal interest due thereon from the time it was approved in audit up to final payment, it being legally due the Complainant representing the money value of his leave credits accruing for services rendered in the municipality from 1988 to 1992 as a duly elected Municipal Councilor. IN ADDITION, respondent Mayor NAOMI C. CORRAL is hereby ordered SUSPENDED from office as Municipal Mayor of Tiwi, Albay, for a period of two (2) months, effective upon receipt hereof for her blatant abuse of authority coupled with oppression as a public example to deter others similarly inclined from using public office as a tool for personal vengeance, vindictiveness and oppression at the expense of the Taxpayer (Rollo, p. 14).

QUIASON, J.: Regarding respondent's contention that recovery under this subject section shall bar the recovery of benefits under the Employees' Compensation Program, the same cannot be upheld. The second sentence of Article 173, Chapter II, Title II (dealing on Employees' Compensation and State Insurance Fund), Book IV of the Labor Code, as amended by P.D. 1921, expressly provides that "the payment of compensation under this Title shall not bar the recovery of

(2) Administrative Case No. 05-92 This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court with prayer for mandatory preliminary injunction, assailing the Orders of the Office of the President as having been issued with grave abuses of discretion. Said Orders directed the stay of execution of the decision of the Sangguniang Panlalawigan suspending the Mayor of Tiwi, Albay from office.

WHEREFORE, premises considered, respondent Mayor NAOMI C. CORRAL of Tiwi, Albay, is hereby sentenced to suffer the penalty of SUSPENSION from office as Municipal Mayor thereof for a period of THREE (3) MONTHS beginning after her service of the first penalty of suspension ordered in Administrative Case No. 02-92. She

is likewise ordered to reimburse the Municipality of Tiwi One-half of the amount the latter have paid for electric and water bills from July to December 1992, inclusive (Rollo, p. 16).

and conditions as it may deem just and reasonable (Adm. Order No. 18).

Consequently, respondent Mayor appealed to the Office of the President questioning the decision and at the same time prayed for the stay of execution thereof in accordance with Section 67(b) of the Local Government Code, which provides:

After due consideration, and in the light of the Petition for Review filed before this Office, we find that a stay of execution pending appeal would be just and reasonable to prevent undue prejudice to public interest.

Administrative Appeals. — Decision in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following: xxx xxx xxx (b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panglungsod of highly urbanized cities and independent component cities. Acting on the prayer to stay execution during the pendency of the appeal, the Office of the President issued an Order on July 28, 1993, the pertinent portions of which read as follows: xxx xxx xxx The stay of the execution is governed by Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No. 18 dated 12 February 1987, quoted below:

xxx xxx xxx

WHEREFORE, premises considered, this Office hereby orders the suspension/stay of execution of: a) the Decision of the Sangguniang Panlalawigan of Albay in Administrative Case No. 02-92 dated 1 July 1993 suspending Mayor Naomi C. Corral from office for a period of two (2) months, and b) the Resolution of the Sangguniang Panlalawigan of Albay in Administrative Case. No. 05-92 dated 5 July 1993 suspending Mayor Naomi C. Corral from office for a period of three (3) months (Rollo, pp. 55-56). Petitioner then filed a Motion for Reconsideration questioning the aforesaid Order of the Office of the President. On September 13, 1990, the Motion for Reconsideration was denied. Hence, this petition. II

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the events he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal (R.A. No. 7160). Sec. 6 Except as otherwise provided by special laws, the execution of the decision/resolution/order appealed from is stayed upon filing of the appeal within the period prescribed herein. However, in all cases, at any time during the pendency of the appeal, the Office of the President may direct or stay the execution of the decision/resolution/order appealed from upon such terms

Petitioner claims that the governing law in the instant case is R.A. No. 7160, which contains a mandatory provision that an appeal "shall not prevent a decision from becoming final and executory." He argues that administrative Order No. 18 dated February 12, 1987, (entitle "Prescribing the Rules and Regulations Governing Appeals to Office the President") authorizing the President to stay the execution of the appealed decision at any time during the pendency of the appeal, was repealed by R.A. No. 7160, which took effect on January 1, 1991 (Rollo, pp. 5-6). The petition is devoid of merit. Petitioner invokes the repealing clause of Section 530 (f), R.A. No. 7160, which provides:

All general and special laws, acts, city charters, decrees, executive orders, administrative regulations, part or parts thereof, which are incosistent with any of the provisions of this Code, are hereby repealed or modified accordingly. The aforementioned clause is not an express repeal of Section 6 of Administrative Order No. 18 because it failed to identify or designate the laws or executive orders that are intended to be repealed (cf. I Sutherland, Statutory Construction 467 [1943]). If there is any repeal of Administrative Order No. 18 by R.A. No. 7160, it is through implication though such kind of repeal is not favored (The Philippine American Management Co., Inc. v. The Philippine American Management Employees Association, 49 SCRA 194 [1973]). There is even a presumption against implied repeal. An implied repeal predicates the intended repeal upon the condition that a substantial conflict must be found between the new and prior laws. In the absence of an express repeal, a subsequent law cannot be construed as repealing a prior law unless an irreconcible inconsistency and repugnancy exists in the terms of the new and old laws (Iloilo Palay and Corn Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]). The two laws must be absolutely incompatible (Compania General de Tabacos v. Collector of Customs, 46 Phil. 8 [1924]). There must be such a repugnancy between the laws that they cannot be made to stand together (Crawford, Construction of Statutes 631 [1940]). We find that the provisions of Section 68 of R.A. No. 7160 and Section 6 of Administrative Order No. 18 are not irreconcillably inconsistent and repugnant and the two laws must in fact be read together. The first sentence of Section 68 merely provides that an "appeal shall not prevent a decision from becoming final or executory." As worded, there is room to construe said provision as giving discretion to the reviewing officials to stay the execution of the appealed decision. There is nothing to infer therefrom that the reviewing officials are deprived of the authority to order a stay of the appealed order. If the intention of Congress was to repeal Section 6 of Administrative Order No. 18, it could have used more direct language expressive of such intention.

The execution of decisions pending appeal is procedural and in the absence of a clear legislative intent to remove from the reviewing officials the authority to order a stay of execution, such authority can provided in the rules and regulations governing the appeals of elective officials in administrative cases. The term "shall" may be read either as mandatory or directory depending upon a consideration of the entire provisions in which it is found, its object and the consequences that would follow from construing it one way or the other (cf. De Mesa v. Mencias, 18 SCRA 533 [1966]). In the case at bench, there is no basis to justify the construction of the word as mandatory. The Office of the President made a finding that the execution of the decision of the Sagguniang Panlalawigan suspending respondent Mayor from office might be prejudicial to the public interest. Thus, in order not to disrupt the rendition of service by the mayor to the public, a stay of the execution of the decision is in order. WHEREFORE, the petition is DISMISSED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

The Lawphil Project - Arellano Law Foundation SECOND DIVISION [G.R. No. 104215. May 8, 1996] ERECTORS, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, HON. JULIO ANDRES, JR. and FLORENCIO BURGOS, respondents. SYLLABUS 1. REMEDIAL LAW; JURISDICTION; JURISDICTION OVER THE SUBJECT MATTER, DETERMINED BY LAW IN FORCE AT THE COMMENCEMENT OF ACTION; LABOR ARBITER HAS JURISDICTION OVER MONEY CLAIMS OF OVERSEAS WORKER FILED ON MARCH 31, 1982. - The rule is that jurisdiction over the subject matter is determined by the law in force at the time of the

commencement of the action. On March 31, 1982, at the time private respondent filed his complaint against the petitioner, the prevailing laws were Presidential Decree No. 1691 and Presidential Decree No. 1391 which vested the Regional Offices of the Ministry of Labor and the Labor Arbiters with "original and exclusive jurisdiction over all cases involving employer-employee relations including money claims arising out of any law or contracts involving Filipino workers for overseas employment." At the time of the filing of the complaint, the Labor Arbiter had clear jurisdiction over the same. 2. LABOR AND SOCIAL LEGISLATION; EXECUTIVE ORDER NO. 797 CREATING THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA); WITHOUT RETROACTIVE APPLICATION; LABOR ARBITER NOT DIVESTED OF JURISDICTION BY EFFECTIVITY OF E.O. 797. - E.O. No. 797 did not divest the Labor Arbiter's authority to hear and decide the case filed by private respondent prior to its effectivity. Laws should only be applied prospectively unless the legislative intent to give them retroactive effect is expressly declared or is necessarily implied from the language used. We fail to perceive in the language of E.O. No. 797 an intention to give it retroactive effect. The law at bar, E.O. No. 797, is not a curative statute. It was not intended to remedy any defect in the law. It created the POEA to assume the functions of the Overseas Employment Development Board, the National Seamen Board and the overseas employment functions of the Bureau of Employment Services. Accordingly, it gave the POEA "original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen." The rule on prospectivity of laws should therefore apply to E.O. No. 797. It should not affect jurisdiction over cases filed prior to its effectivity. 3. STATUTORY CONSTRUCTION; STATUTES; CURATIVE STATUTE; DEFINED. - A curative statute is enacted to cure defects in a prior law or to validate legal proceedings, instruments or acts of public authorities which would otherwise be void for want of conformity with certain existing legal requirements. APPEARANCES OF COUNSEL

Bengzon, Zarraga, Narciso, Ardala, Pecson, Bengzon, and Jimenez for petitioner. Fabian Gappi for private respondent. DECISION PUNO, J.: Petitioner Erectors, Inc. challenges the jurisdiction of respondent Labor Arbiter Julio F. Andres, Jr. to hear and decide the complaint[1] for underpayment of wages and non-payment of overtime pay filed by private respondent Florencio Burgos, an overseas contract worker. The facts are undisputed: In September 1979, petitioner recruited private respondent to work as service contract driver in Saudi Arabia for a period of twelve (12) months with a salary of US$165.00 and an allowance of US$165.00 per month. They further agreed that private respondent shall be entitled to a bonus of US$ 1,000.00 if after the 12-month period, he renews or extends his employment contract without availing of his vacation or home leave. Their contract dated September 20, 1979, was duly approved by the Ministry of Labor and Employment. The aforesaid contract was not implemented. In December, 1979, petitioner notified private respondent that the position of service driver was no longer available. On December 14, 1979, they executed another contract which changed the position of private respondent into that of helper/laborer with a salary of US$105.00 and an allowance of US$105.00 per month. The second contract was not submitted to the Ministry of Labor and Employment for approval. On December 18, 1979, private respondent left the country and worked at petitioner's Buraidah Sports Complex project in Saudi Arabia, performing the job of a helper/laborer. He received a monthly salary and allowance of US$210.00, in accordance with the second contract. Private respondent renewed his contract of employment after one year. His salary and allowance were increased to US$231.00. Private respondent returned to the Philippines on August 24, 1981. He then invoked his first employment contract. He demanded from the petitioner the difference between his salary and allowance as indicated in the said contract,

and the amount actually paid to him, plus the contractual bonus which should have been awarded to him for not availing of his vacation or home leave credits. Petitioner denied private respondent's claim. On March 31, 1982, private respondent filed with the Labor Arbiter a complaint against the petitioner for underpayment of wages and non-payment of overtime pay and contractual bonus. On May 1, 1982, while the case was still in the conciliation stage, Executive Order (E.O.) No. 797 creating the Philippine Overseas Employment Administration (POEA) took effect. Section 4(a) of E.O. No. 797 vested the POEA with "original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment.”[2] Despite E.O. No. 797, respondent Labor Arbiter proceeded to try the case on the merits. On September 23, 1983, he rendered a Decision[3] in favor of private respondent, the dispositive portion of which reads: "WHEREFORE, judgment is hereby rendered ordering the respondent to pay the complainant as follows: 1. The sum of US$2,496.00 in its peso equivalent on August 25, 1981 as difference between his allowance as Service Driver as against his position as Helper/Laborer; 2. The sum of US$1,000.00 in its peso equivalent as of the same date, as his contractual bonus. The complaints for non-payment/underpayment of overtime pay and unpaid wages or commission are DISMISSED for lack of merit.”[4] Petitioner appealed to respondent National Labor Relations Commission (NLRC). It questioned the jurisdiction of the Labor Arbiter over the case in view of the enactment of E.O. No. 797. In a Resolution dated July 17, 1991,[5] respondent NLRC dismissed the petitioner's appeal and upheld the Labor Arbiter's jurisdiction. It ruled: "To begin with, the Labor Arbiter has the authority to decide this case. On May 29, 1978, the Labor Arbiters

were integrated into the Regional Offices under P.D. 1391. On May 1, 1980, P.D. 1691 was promulgated giving the Regional Offices of the Ministry of Labor and Employment the original and exclusive jurisdiction over all cases arising out of or by virtue of any law or contract involving Filipino workers for overseas employment. There is no dispute that the Labor Arbiter had the legal authority over the case on hand, which accrued and was filed when the two above mentioned Presidential Decrees were in force.”[6] Petitioner filed this special civil action for certiorari reiterating the argument that: "The NLRC committed grave abuse of discretion tantamount to lack of jurisdiction in affirming the Labor Arbiter's void judgment in the case a quo."[7] It asserts that E.O. No. 797 divested the Labor Arbiter of his authority to try and resolve cases arising from overseas employment contract. Invoking this Court's ruling in Briad Agro Developinent Corp. vs. Dela Cerna,[8] petitioner argues that E.O. No. 797 applies retroactively to affect pending cases, including the complaint filed by private respondent. The petition is devoid of merit. The rule is that jurisdiction over the subject matter is determined by the law in force at the time of the commencement of the action.[9] On March 31, 1982, at the time private respondent filed his complaint against the petitioner, the prevailing laws were Presidential Decree No. 1691[10] and Presidential Decree No. 1391[11] which vested the Regional Offices of the Ministry of Labor and the Labor Arbiters with "original and exclusive jurisdiction over all cases involving employer-employee relations including money claims arising out of any law or contracts involving Filipino workers for overseas employment."[12] At the time of the filing of the complaint, the Labor Arbiter had clear jurisdiction over the same. E.O. No. 797 did not divest the Labor Arbiter's authority to hear and decide the case filed by private respondent prior to its effectivity. Laws should only be applied prospectively unless the legislative intent to give them retroactive effect is expressly declared or is necessarily implied from the language used.[13] We fail to perceive in the language of E.O. No. 797 an intention to give it retroactive effect.

The case of Briad Agro Development Corp. vs. Dela Cerna[14] cited by the petitioner is not applicable to the case at bar. In Briad, the Court applied the exception rather than the general rule. In this case, Briad Agro Development Corp. and L.M. Camus Engineering Corp. challenged the jurisdiction of the Regional Director of the Department of Labor and Employment over cases involving workers' money claims, since Article 217 of the Labor Code, the law in force at the time of the filing of the complaint, vested in the Labor Arbiters exclusive jurisdiction over such cases. The Court dismissed the petition in its Decision dated June 29, 1989.[15] It ruled that the enactment of E.O. No. 111, amending Article 217 of the Labor Code, cured the Regional Director's lack of jurisdiction by giving the Labor Arbiter and the Regional Director concurrent jurisdiction over all cases involving money claims. However, on November 9,1989, the Court, in a Resolution,[16] reconsidered and set aside its June 29 Decision and referred the case to the Labor Arbiter for proper proceedings, in view of the promulgation of Republic Act (R.A.) 6715 which divested the Regional Directors of the power to hear money claims. It bears emphasis that the Court accorded E.O. No. 111 and R.A. 6715 a retroactive application because as curative statutes, they fall under the exceptions to the rule on prospectivity of laws. E.O. No.111, amended Article 217 of the Labor Code to widen the workers' access to the government for redress of grievances by giving the Regional Directors and Labor Arbiters concurrent jurisdiction over cases involving money claims. This amendment, however, created a situation where the jurisdiction of the Regional Directors and the Labor Arbiters overlapped. As a remedy, R.A. 6715 further amended Article 217 by delineating their respective jurisdictions. Under R.A. 6715, the Regional Director has exclusive original jurisdiction over cases involving money claims provided: (1) the claim is presented by an employer or person employed in domestic or household service, or househelper under the Code; (2) the claimant, no longer being employed, does not seek reinstatement; and (3) the aggregate money claim of the employee or househelper does not exceed P5,000.00. All other cases are within the exclusive and original jurisdiction of the Labor Arbiter. E.O. No. 111 and R.A. 6715 are therefore curative statutes. A curative statute is enacted to cure defects in a prior law or to validate legal proceedings, instruments or acts of public authorities which would otherwise be void for want of conformity with certain existing legal requirements.

The law at bar, E.O. No. 797, is not a curative statute. It was not intended to remedy any defect in the law. It created the POEA to assume the functions of the Overseas Employment Development Board, the National Seamen Board and the overseas employment functions of the Bureau of Employment Services. Accordingly, it gave the POEA "original and exclusive jurisdiction over all cases, including money claims, involving employeremployee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen."[17] The rule on prospectivity of laws should therefore apply to E.O. No. 797. It should not affect jurisdiction over cases filed prior to its effectivity. Our ruling in Philippine-Singapore Ports Corp. vs. NLRC[18] is more apt to the case at bar. In this case, PSPC hired Jardin to work in Saudi Arabia. Jardin filed a complaint against PSPC for illegal dismissal and recovery of backwages on January 31, 1979 with the Labor Arbiter. PSPC questioned the jurisdiction of the Labor Arbiter because at that time, the power to hear and decide cases involving overseas workers was vested in the Bureau of Employment Services. We held: "When Jardin filed the complaint for illegal dismissal on January 31, 1979, Art. 217 (5) of the Labor Code provided that Labor Arbiters and the NLRC shall have ‘exclusive jurisdiction to hear and decide’ all cases arising from employer-employee relations ‘unless expressly excluded by this Code.’ At that time Art. 15 of the same Code had been amended by P.D. No. 1412 which took effect on June 9, 1978. The pertinent provision of the said presidential decree states: ‘Article 15. Bureau of Employment Services. -

Considering that private respondent Jardin's claims undeniably arose out of an employer-employee relationship with petitioner PSPC and that private respondent worked overseas or in Saudi Arabia, the Bureau of Employment Services and not the Labor Arbiter had jurisdiction over the case. x x x Art. 15 was further amended by P.D. No. 1691 which took effect on May 1, 1990. Such amendment qualifies the jurisdiction of the Bureau of Employment Services as follows: ‘(b) The regional offices of the Ministry of Labor shall have the original and exclusive jurisdiction over all matters or cases involving employer-employee relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas employment except seamen: Provided that the Bureau of Employment Services may, in the case of the National Capital Region, exercise such power, whenever the Minister of Labor deems it appropriate. The decisions of the regional offices or the Bureau of Employment Services if so authorized by the Minister of Labor as provided in this Article, shall be appealable to the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the National Labor Relations Commission shall be final and inappealable.’ Hence, as further amended, Art. 15 provided for concurrent jurisdiction between the regional offices of the then Ministry of Labor and Bureau of Employment Services ‘in the National Capital Region.’ It is noteworthy that P.D. No. 1691, while likewise amending Art. 217 of the Labor Code, did not alter the provision that Labor Arbiters shall have jurisdiction over all claims arising from employeremployee relations ‘unless expressly excluded by this Code.’

authority's continuing intent to exclude from the Labor Arbiter's jurisdiction claims arising from overseas employment. These amendments notwithstanding, when the complaint for illegal dismissal was filed on January 31, 1979, under Art. 15, as amended by P.D. No. 1412, it was the Bureau of Employment Services which had jurisdiction over the case and not the Labor Arbiters. It is a settled rule that jurisdiction is determined by the statute in force at the time of the commencement of the action (Municipality of Sogod v. Rosal, 201 SCRA 632, 637 [1991]). P.D. 1691 which gave the regional offices of the Ministry of Labor concurrent jurisdiction with the Bureau of Employment Services, was promulgated more than a year after the complaint was filed. (Italics supplied) In sum, we hold that respondent NLRC did not commit grave abuse of discretion in upholding the jurisdiction of respondent Labor Arbiter over the complaint filed by private respondent against the petitioner. IN VIEW WHEREOF, the Petition is DISMISSED. Costs against petitioner. SO ORDERED. Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur. [1] Docketed as NLRC-NCR-3-3142-82. [2] Official Gazette, Vol. 78, No. 21, May 24, 1982, pp. 2368-7 - 2638-13. [3] Rollo, pp. 13-23. [4] Rollo, p. 23.

(a)

xxx

xxx

xxx

(b) The Bureau shall have the original and exclusive jurisdiction over all matters or cases involving employeremployee relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas employment, except seamen. The decisions of the Bureau shall be final and executory subject to appeal to the Secretary of Labor whose decision shall be final and inappealable.’

The functions of the Bureau of Employment Services were subsequently assumed by the Philippine Overseas Employment Administration (POEA) on May 1, 1982 by virtue of Executive Order No. 797 by granting the POEA ‘original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including seamen.’ (Sec. 4 (a); Eastern Shipping Lines v. Philippine Overseas Employment Administration [POEA], 200 SCRA 663 [1991]). This development showed the legislative

[5] Rollo, pp. 26-30. [6] Rollo, p. 28.

SYLLABI/SYNOPSIS THIRD DIVISION [G.R. No. 127708. March 25, 1999]

CITY GOVERNMENT OF SAN PABLO, LAGUNA, CITY TREASURER OF SAN PABLO, LAGUNA, and THE SANGGUNIANG PANGLUNSOD OF SAN PABLO, LAGUNA, petitioners, vs. HONORABLE BIENVENIDO V. REYES, in his capacity as Presiding Judge, Regional Trial Court, Branch 29, San Pablo City and the MANILA ELECTRIC COMPANY, respondents. DECISION GONZAGA-REYES, J.: This is a petition under Rule 45 of the Rules of Court to review on a pure question of law the decision of the Regional Trial Court (RTC) of San Pablo City, Branch 29 in Civil Case No. SP-4459(96), entitled “Manila Electric Company vs. City of San Pablo, Laguna, City Treasurer of San Pablo Laguna, and the Sangguniang Panglunsod of San Pablo City, Laguna.” The RTC declared the imposition of franchise tax under Section 2.09 Article D of Ordinance No. 56 otherwise known as the Revenue Code of the City of San Pablo as ineffective and void insofar as the respondent MERALCO is concerned for being violative of Act No. 3648, Republic Act No. 2340 and PD 551. The RTC also granted MERALCO’S claim for refund of franchise taxes paid under protest. The following antecedent facts are undisputed: Act No. 3648 granted the Escudero Electric Services Company, a legislative franchise to maintain and operate an electric light and power system in the City of San Pablo and nearby municipalities Section 10 of Act No. 3648 provides: “x x x In consideration of the franchise and rights hereby granted, the grantee shall pay unto the municipal treasury of each municipality in which it is supplying electric current to the public under this franchise, a tax equal to two percentum of the gross earnings from electric current sold or supplied under this franchise in each said municipality. Said tax shall be due and payable quarterly and shall be in lieu of any and all taxes of any kind, nature or description levied, established or collected by any authority whatsoever, municipal, provincial or insular, now or in the future, on its poles, wires, insulators, switches, transformers, and structures, installations, conductors, and accessories place in and over and under all public property, including public streets and highways, provincial roads, bridges and public squares, and on its franchise,

rights, privileges, receipts, revenues and profits from which taxes the grantee is hereby expressly exempted.”

account realized during the preceding calendar year within the city.”

Escudero’s franchise was transferred to the plaintiff (herein respondent) MERALCO under Republic Act No. 2340.

Pursuant to the above-quoted Section 2.09, the petitioner City Treasurer sent to private respondent a letter demanding payment of the aforesaid franchise tax. From 1994 to 1996, private respondent paid “under protest” a total amount of P1,857,711.67.[2]

Presidential Decree No. 551 was enacted on September 11, 1974. Section 1 thereof provides the following: “Section 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchise to generate, distribute and sell electric current for light, heat and power shall be two percent (2%) of their gross receipts received from the sale of electric current and from transactions incident to the generation, distribution and sale of electric current. Such franchise tax shall be payable to the Commissioner of Internal Revenue or his duly authorized representative on or before the twentieth day of the month following the end of each calendar quarter or month as may be provided in the respective franchise or pertinent municipal regulation and shall, any provision of the Local Tax Code or any other law to the contrary notwithstanding, be in lieu of all taxes and assessments of whatever nature imposed by any national or local authority on earnings, receipts, income and privilege of generation, distribution and sale of electric current.” Republic Act No. 7160, otherwise known as the “Local Government Code of 1991” (hereinafter referred to as the LGC) took effect on January 1, 1992. The said Code authorizes the province/city to impose a tax on business enjoying a franchise at a rate not exceeding fifty percent (50%) of one percent (1%) of the gross annual receipts for the preceding calendar year realized within its jurisdiction. On October 5, 1992, the Sangguniang Panglunsod of San Pablo City enacted Ordinance No. 56, otherwise known as the Revenue Code of the City of San Pablo. The said Ordinance took effect on October 30, 1992:[1] Section 2.09 Article D of said Ordinance provides: “Sec. 2.09. Franchise Tax – There is hereby imposed a tax on business enjoying a franchise, at a rate of fifty percent (50%) of one percent (1%) of the gross annual receipts, which shall include both cash sales and sales on

The private respondent subsequently filed this action before the Regional Trial Court to declare Ordinance No. 56 null and void insofar as it imposes the franchise tax upon private respondent MERALCO[3] and to claim for a refund of the taxes paid. The Court ruled in favor of MERALCO and upheld its argument that the LGC did not expressly or impliedly repeal the tax exemption/incentive enjoyed by it under its charter. The dispositive portion of the decision reads: “WHEREFORE, the imposition of a franchise tax under Sec. 2.09 Article D of Ordinance No. 56 otherwise known as the Revenue Code of the City of San Pablo, is declared ineffective and null and void insofar as the plaintiff MERALCO is concerned for being violative of Republic Act No. 2340, PD 551, and Republic Act No. 7160 and the defendants are ordered to refund to the plaintiff the amount of ONE MILLION EIGHT HUNDRED FIFTY SEVEN THOUSAND SEVEN HUNDRED ELEVEN & 67/100 (P1,857,711.67) and such other amounts as may have been paid by the plaintiff under said Revenue Ordinance No. 56 after the filing of the complaint.[4] SO ORDERED.” Its motion for reconsideration having been denied by the trial court[5] the petitioners filed the instant petition with this Court raising pure questions of law based on the following grounds: I. RESPONDENT JUDGE GRAVELY ERRED IN HOLDING THAT ACT NO. 3648, REPUBLIC ACT NO. 2340 AND PRESIDENTIAL DECREE NO. 551 AS AMENDED, INSOFAR AS THEY GRANT TAX INCENTIVES, PRIVILEGES AND IMMUNITIES TO PRIVATE RESPONDENT, HAVE NOT BEEN REPEALED BY REPUBLIC ACT NO. 7160.

II. RESPONDENT JUDGE GRAVELY ERRED IN RULING THAT SECTION 193 OF REPUBLIC ACT NO. 7160 HAS NOT WITHDRAWN THE TAX INCENTIVES, PRIVILEGES AND IMMUNITIES BEING ENJOYED BY THE PRIVATE RESPONDENT UNDER ACT NO. 3648, REPUBLIC ACT NO. 2340 AND PRESIDENTIAL DECREE NO. 551, AS AMENDED. III. RESPONDENT JUDGE GRAVELY ERRED IN HOLDING THAT THE FRANCHISE TAX IN QUESTION CONSTITUTES AN IMPAIRMENT OF THE CONTRACT BETWEEN THE GOVERNMENT AND THE PRIVATE RESPONDENT. Petitioners’ position is the RA 7160 (LGC) expressly repealed Act No. 3648, Republic Act No. 2340 and Presidential Decree 551 and that pursuant to the provisions of Sections 137 and 193 of the LGC, the province or city now has the power to impose a franchise tax on a business enjoying a franchise. Petitioners rely on the ruling in the case of Mactan Cebu International Airport Authority vs. Marcos[6] where the Supreme Court held that the exemption from real property tax granted to Mactan Cebu International Airport Authority under its charter has been withdrawn upon the effectivity of the LGC. In addition, the petitioners cite in their Memorandum dated December 8, 1997 an administrative interpretation made by the Bureau of Local Government Finance of the Department of Finance in its 3rd indorsement dated February 15, 1994 to the effect that the earlier ruling of the Department of Finance that holders of franchise which contain the phrase “in lieu of all taxes” proviso are exempt from the payment of any kind of tax is no longer applicable upon the effectivity of the LGC in view of the withdrawal of tax exemption privileges as provided in Sections 193 and 234 thereof. We resolve to reverse the court a quo. The pivotal issue is whether the City of San Pablo may impose a local franchise tax pursuant to the LGC upon the Manila Electric Company which pays a tax equal to two percent of its gross receipts in lieu of all taxes and assessments of whatever nature imposed by any national or local authority on savings or income. It is necessary to reproduce the pertinent provisions of the LGC.

Section 137 – Franchise Tax – Notwithstanding any exemption granted by any law or other special law, the province may impose a tax on business enjoying a franchise, at a rate not exceeding fifty percent 50% of one percent 1% of the gross annual receipts for the preceding calendar year based on the incoming receipts, or realized, within its territorial jurisdiction. xxx”

identified by number or title, that are intended to be repealed.[8] Was there an implied repeal by Republic Act No. 7160 of the MERALCO franchise insofar as the latter impose a 2% tax “in lieu of all taxes and assessments of whatever nature”? We rule affirmatively.

Section 151 – Scope of Taxing Powers – Except as otherwise provided in this Code, the city, may levy the taxes, fees, and charges which the province or municipality may impose: Provided, however, That the taxes, fees and charges levied and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance with the provisions of this Code. The rates of taxes that the city may levy may exceed the maximum rates allowed for the province or municipality by not more than fifty percent (50%) except the rates of professional and amusement taxes. Section 193 – Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or controlled corporations, except local water districts, cooperatives duly registered under R.A. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. Section 534 (f) – Repealing Clause – All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this code are hereby repealed or modified accordingly. Section 534 (f), the repealing clause of the LGC, provides that all general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations or parts thereof which are inconsistent with any of the provisions of the Code are hereby repealed or modified accordingly. This clause partakes of the nature of a general repealing clause.[7] It is certainly not an express repealing clause because it fails to designate the specific act or acts

We are mindful of the established rule that repeals by implication are not favored as laws are presumed to be passed with deliberation and full knowledge of all laws existing on the subject. A general law cannot be construed to have repealed a special law by mere implication unless the intent to repeal or alter is manifest[9] and it must be convincingly demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist.[10] It is our view that petitioners correctly rely on the provisions of Section 137 and 193 of the LGC to support their position that MERALCO’s tax exemption has been withdrawn. The explicit language of Section 137 which authorizes the province to impose franchise tax “notwithstanding any exemption granted by any law or other special laws" is all-encompassing and clear. The franchise tax is imposable despite any exemption enjoyed under special laws. Section 193 buttresses the withdrawal of extant tax exemption privileges. By stating that unless otherwise provided in this Code, tax exemptions or incentives granted to or presently enjoyed by all persons whether natural or juridical, including government-owned or controlled corporations except 1) local water districts, 2) cooperatives duly registered under R.A. 6938, (3) nonstock and non-profit hospitals and educational institutions, are withdrawn upon the effectivity of this code, the obvious import is to limit the exemptions to the three enumerated entities. It is a basic precept of statutory construction that the express mention of one person, thing, act, or consequence excludes all others as expressed in the familiar maxim expressio unius est exlcusio alterius.[11] In the absence of any provision of the Code to the contrary, and we find no other provision of the Code to the contrary, and we find no other provision in point, any existing tax exemption or incentive enjoyed by MERALCO under existing law was clearly intended to be withdrawn.

Reading together Sections 137 and 193 of the LGC, we conclude that under the LGC the local government unit may now impose a local tax at a rate not exceeding 50% of 1% of the gross annual receipts for the preceding calendar year based on the incoming receipts realized within its territorial jurisdiction. The legislative purpose to withdraw tax privileges enjoyed under existing law or charter is clearly manifested by the language used in Section 137 and 193 categorically withdrawing such exemption subject only to the exceptions enumerated. Since it would be not only tedious and impractical to attempt to enumerate all the existing statutes providing for special tax exemptions or privileges, the LGC provided for an express, albeit general, withdrawal of such exemptions or privileges. No more unequivocal language could have been used. It is true that the phrase “in lieu of all taxes” found in special franchises has been held in several cases to exempt the franchise holder from payment of tax on its corporate franchise imposed by the Internal Revenue Code, as the charter is in the nature of a private contract and the exemption is part of the inducement for the acceptance of the franchise, and that the imposition of another franchise tax by the local authority would constitute an impairment of contract between the government and the corporation.[12] But these “magic words” contained in the phrase “shall be in lieu of all taxes.”[13] Have to give way to the peremptory language of the LGC specifically providing for the withdrawal of such exemption privileges. Accordingly in Mactan Cebu International Airport Authority vs. Marcos,[14] this Court held that Section 193 of the LGC prescribes the general rule, viz., the tax exemptions or incentives granted to or presently enjoyed by natural or juridical persons are withdrawn upon the effectivity of the LGC except with respect to those entities expressly enumerated. In the same vein We must hold that the express withdrawal upon effectivity of the LGC of all exemptions only as provided therein, can no longer be invoked by Meralco to disclaim liability for the local tax. Private respondents further argue that the “in lieu of” provision contained in PD 551, Act No. 3648 and RA 2340 does not partake of the nature of an exemption, but is a “commutative tax”. This contention was raised but was not upheld in Cagayan Electric Power and Light Co. Inc. vs.

Commissioner of Internal Revenue[15] wherein the Supreme Court stated: “xxx Congress could impair petitioner’s legislative franchise by making it liable for income tax from which heretofore it was exempted by virtue of the exemption provided for in section 3 of its franchise xxx

resulted in serious tax base erosion and distortions in the tax treatment of similarly situated enterprises, and there was a need for these entities to share in the requirements of development, fiscal or otherwise, by paying the taxes and other charges due from them.”[18] The Court therein concluded that:

xxx Republic Act No. 5431, in amending section 24 of the Tax Code by subjecting to income tax all corporate tax payers not expressly exempted therein and in section 27 of the Code, had the effect of withdrawing petitioner’s exemption from income tax xxx”

“nothing can prevent Congress from decreeing that even instrumentalities or agencies of the Government performing governmental functions may be subject to tax. Where it is done precisely to fulfill a constitutional mandate and national policy, no one can doubt its wisdom.”[19]

Private respondent’s invocation of the non-impairment clause of the Constitution is accordingly unavailing. The LGC was enacted in pursuance of the constitutional policy to ensure autonomy to local governments[16] and to enable them to attain fullest development as self-reliant communities.[17] Thus in Mactan Cebu International Airport Authority vs. Marcos, supra, this Court pointed out, in upholding the withdrawal of the real estate tax exemption previously enjoyed by the Mactan Cebu International Airport Authority, as follows:

The power to tax is primarily vested in Congress. However, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution.[20] Thus Article X, Section 5 of the Constitution reads:

“Note that as reproduced in Section 234(a) the phrase “and any government owned or controlled corporation so exempt by its charter” was excluded. The justification for this restricted exemption in Section 234(a) seems obvious: to limit further tax exemption privileges especially in light of the general provision on withdrawal of tax exemption privileges in Section 193 and the special provision on withdrawal of exemption from payment of real property taxes in the last paragraph of Section 234. These policy considerations are consistent with the State policy to ensure autonomy to local governments and the objective of the LGC that they enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them effective partners in attainment of national goals. The power to tax is the most effective instrument to raise needed revenues to finance and support myriad activities of local government units for the delivery of basic services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people. It may also be relevant to recall that the original reasons for the withdrawal of tax exemption privileges granted to government-owned or controlled corporations and all other units of government were that such privilege

“Section 5 – Each Local Government unit shall have the power to create its own sources of revenue and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees and charges shall accrue exclusively to the Local Governments.” The important legal effect of Section 5 is that henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will have to be resolved in favor of municipal corporations.[21] There is further basis for the conclusion that the nonimpairment of contract clause cannot be invoked to uphold Meralco's exemption from the local tax. Escudero Electric Co. was originally given the legislative franchise under Act. 3648 to operate an electric light and power system in the City of San Pablo and nearby municipalities. The term of the franchise under Act No. 3648 is a period of fifty years from the Act’s approval in 1929. The said law provided that the franchise is granted upon the condition that it shall be subject to amendment, or repeal by the Congress of the United States.[22] Under the 1935,[23] the 1973[24] and the 1987[25] Constitutions, no franchise or right shall be granted except under the condition that it shall be subject to amendment, alteration or repeal by the National Assembly when the public interest so requires. With or

without the reservation clause, franchises are subject to alterations through a reasonable exercise of the police power; they are also subject to alteration by the power to tax, which like police power cannot be contracted away.[26] Finally, while the matter is not of controlling significance, the Court notes that whereas the original Escudero franchise exempted the franchise holder from all taxes levied or collected “now or in the future”[27] this phrase is noticeably omitted in the counterpart provision of P.D. 551 that said omission is intended not to foreclose future taxes may reasonably be deduced by statutory construction. WHEREFORE, the instant petition is GRANTED. The decision of the Regional Trial Court of San Pablo City, appealed from is hereby reversed and set aside and the complaint of MERALCO is hereby DISMISSED. No pronouncement as to costs. SO ORDERED. Romero, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

[G.R. No. 132378. January 18, 2000] ROGELIO JUAN, PEDRO DE JESUS, DELFIN CARREON and ANTONIO GALGUERRA, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION PANGANIBAN, J.: Unlawful and unauthorized use of government property by incumbent public officers constitutes fraud. Thus, the provision on preventive suspension in the Anti-Graft Law applies to such officers even if the alleged violations are primarily considered as election offenses. The Case Before us is a Petition for Review under Rule 45 assailing the October 14, 1997 Decision[1] and the January 26, 1998 Resolution of the Court of Appeals[2] (CA) in CA-GR SP No. 43903.[3] The assailed Decision dismissed the

Petition for Certiorari filed by the petitioners. In that Petition, they questioned the April 3, 1997 Order[4] of the Regional Trial Court of Quezon City in Criminal Case Nos. Q-96-64564-6, directing their immediate suspension from office. On the other hand, the questioned CA Resolution denied their Motion for Reconsideration. Esm

"On April 3, 1997, respondent court issued an Order, directing the "xxx immediate suspension from office of all the accused xxx for a period of sixty (60) days from service of this Order."[5]

The Facts

In its Decision, the Court of Appeals upheld the trial court’s discretion to order petitioners’ suspension from office. It ruled:

The procedural and factual antecedents of this case are summarized in the challenged Decision as follows: "Petitioners Rogelio Juan, Barangay Chairman and Pedro de Jesus, Delfin Carreon, and Antonio Galguerra, Barangay Kagawads, of Barangay Talipapa, Novaliches, Quezon City, were separately accused in Criminal Cases Q-96-64564 to 66, for violation of Section 261-(o) of the Omnibus Election Code, before the Regional Trial Court, Branch 96, National Capital Judicial Region, Quezon City. Barangay Chairman Juan, and Bgy. Kagawad De Jesus were charged [with] willful and unlawful use of VHF radio transceiver, an equipment or apparatus owned by the barangay government of Talipapa, Novaliches, Quezon City, for election campaign or for partisan political activity. And Barangay Kagawads Carreon and Galguerra were charged with willful and unlawful use of a tricycle owned by the same barangay government in their political campaigns. "Rodolfo Cayubit and Ricardo Galguerra, representing themselves as "witnesses/private complainants," assisted by Atty. Leonides S. Bernabe, Jr., representing himself as "Private Prosecutor," filed a "Motion for Removal from Office," dated December 5, 1996, for the removal of said local elective officials, to which herein petitioners filed their comment, on the ground that movants have no legal standing in court, and neither was the public prosecutor notified of the motion to which he did not conform, and therefore, said motion should be expunged or stricken out from the records, or peremptorily denied. "In a Manifestation and Comment to the accusedpetitioners’ comment, the COMELEC prosecutor stated that he "conforms" with the subject motion of private complainants, hence, respectfully submit[s] the same for the ruling of the court, followed by a Supplement to Motion for Removal from Office, dated February 28, 1997, to which petitioners also filed their opposition.

The CA Ruling

"The preventive suspension of those officials is authorized under Section 13 of RA 3019, as amended, which is mandatory in character upon the filing of a valid information in court against them. Such suspension can be issued ‘x x x in whatever stage of execution and mode of participation, is pending in court x x x’ (see also Gonzaga vs. Sandiganbayan, 201 SCRA 417, 422, 426). Said cases stressed though that the Constitution rejects preventive suspension for an indefinite duration as it constitutes a denial of due process and equal protection of the law. Nonetheless, preventive suspension is justifiable for as long as its continuance is for a reasonable length of time. This doctrine also finds expression in Luciano vs. Provincial Governor, 28 SCRA 570, upholding the power of courts to exercise the mandatory act of suspension of local elective official[s] under Section 13 of RA 3019."[6] (underscoring found in the original) Esmso Hence, this Petition.[7] The Issues In their Memorandum, petitioners urge the Court to resolve the following questions: "1. Does Sec. 13 of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), or Sec. 60 of R.A. 7160 (The Local Government Code of 1991) confer upon a Regional Trial Court, before which a criminal case for violation of Sec. 261 (o) of the Omnibus Election Code is pending, the power and authority to order the preventive suspension from office of the accused therein upon the filing of a valid Information against him? "2. In a criminal case for violation of Sec. 261 (o) of the Omnibus Election Code, where the INFORMATION does not allege damages sustained by any private party by reason thereof, has a person, representing himself to be a

"witness/private complainant," or a lawyer, representing himself to be a "private prosecutor," the legal standing or personality to file a motion for removal from office of the accused in said criminal case? ‘2.1. Does a motion so filed, acquire legal standing before the Court by the subsequent adoption thereof by the COMELEC Prosecutor in said case? Msesm ‘2.2. Does a motion so filed, without compliance of the notice requirements prescribed for motions under Rule 15 of the Revised Rules of Court, deserve judicial cognizance by the court vis-a-vis Del Castillo v. Aguinaldo, 212 SCRA 169, 174, holding that such motion is "a useless piece of paper with no legal effect" that should not be accepted for filing and if filed, is not entitled to judicial cognizance?" ‘2.3. Is there substantial compliance [with] such notice requirements by the mere fact that [the] adverse party filed an opposition to said motion, precisely to question its noncompliance [with] notice requirements, prescribed by Rule 15, Revised Rules of Court?" ‘2.4. Notwithstanding the foregoing defects of said motion, is it proper for a Regional Trial Court to take cognizance thereof and act favorably thereon, without setting said motion for hearing?" Citing RA 7691,[8] petitioners likewise assail the authority of the trial court to hear the cases against them. For the sake of clarity, the discussion of the case will revolve around three points: first, the jurisdiction of regional trial courts over violations of the Election Code; second, the propriety of petitioners’ suspension; and third, the alleged procedural lapses of the trial court. The Court’s Ruling We find no merit in the Petition. First Issue: Jurisdiction over Election Cases Petitioners insist that the RTC did not have the jurisdiction to hear and decide the cases filed against them, because the penalty for the offenses charged did not exceed six years. Thus, they claim that the authority to hear the cases is vested by RA 7691 in the first-level courts. Exsm

The argument does not persuade. It is evident from Section 32, BP 129, as amended by Section 2 of RA 7691, that the jurisdiction of first-level courts -- the metropolitan trial courts, municipal trial courts and municipal circuit trial courts -- does not cover those criminal cases which by specific provision of law are cognizable by regional trial courts. Section 32 provides: "Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of the Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over all violations of city or municipal ordinances, committed within their respective territorial jurisdiction; and (2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof; Provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. Petitioners were charged with violating Section 261 (o) of the Omnibus Election Code. Under Section 268 of the said Code, regional trial courts have exclusive jurisdiction to try and decide any criminal action or proceeding for violation of the Code, "except those relating to the offense of failure to register or failure to vote." The said provision reads: "Sec. 268. Jurisdiction of courts. The regional trial court shall have the exclusive jurisdiction to try and decide any criminal action or proceeding for violation of this Code, except those relating to the offense of failure to register or failure to vote, which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases." Worth noting also is this Court’s disquisition in COMELEC v. Noynay:[9]

"We have explicitly ruled in Morales v. Court of Appeals, that by virtue of the exception provided for in the opening sentence of Section 32, the exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts does not cover criminal cases which by specific provisions of law fall within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, regardless of the penalty prescribed therefor. Otherwise stated, even if those excepted cases are punishable by imprisonment not exceeding six (6) years, (i.e., prision correccional, arresto mayor, or arresto menor) jurisdiction thereon is retained by the Regional Trial Courts or the Sandiganbayan, as the case may be. Kyle "Among the examples cited in Morales as falling within the exception provided for in the opening sentence of Section 32 are cases under (1) Section 20 of BP Blg. 129; (2) Article 360 of the Revised Penal Code as amended; (3) the Decree on Intellectual Property; and (4) the Dangerous Drugs Act of 1972, as amended. "Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also fall within the exception. "As we stated in Morales, jurisdiction is conferred by the Constitution or Congress. Outside the cases enumerated in Section 5(2) of Article VIII of the Constitution, Congress has the plenary power to define, prescribe, and apportion the jurisdiction of various courts. Congress may thus provide by law that a certain class of cases should be exclusively heard and determined by one court. Such law would be a special law and must be construed as an exception to the general law on jurisdiction of courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary Reorganization Act of 1980. R.A. 7691 can by no means be considered as a special law on jurisdiction; it is merely an amendatory law intended to amend specific sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not have the effect of repealing laws vesting upon Regional Trial Courts or the Sandiganbayan exclusive original jurisdiction to hear and decide the cases therein specified. That Congress never intended that RA 7691 should repeal such special provisions is indubitably evident from the fact that it did not touch at all the opening sentence of Section 32 of B.P. Blg. 129 providing for the exception." (Itals supplied)

Clearly then, regional trial courts have jurisdiction to hear and decide cases for violation of the Omnibus Election Code, such as those filed against petitioners. Second Issue: Preventive Suspension Petitioners contend that their cases are not subject to Section 13 of RA 3019, the Anti-Graft and Corrupt Practices Act, which mandates the preventive suspension of indicted public officials. We disagree. Petitioners were accused of using barangay property for election campaign purposes and other partisan political activities during their incumbency as barangay officials, in violation of Section 261 (o) of the Omnibus Election Code, which reads as follows: "Section 261. Prohibited Acts. The following shall be guilty of an election offense: (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. - Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus or paraphernalia owned by the government or by its political subdivisions, agencies, including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity." Kycalr On the other hand, Section 13, R.A. 3019, as amended, provides: "SEC. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by

final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement, and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. "In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the government." Interestingly, prior to its amendment by BP 195,[10] the said provision had applied to public officers who, under a valid information, were charged with violations of RA 3019 or with offenses covered by the Revised Penal Code provision on bribery.[11] The amendatory law expanded the scope of the provision; now, public officers may likewise be suspended from office if, under a valid information, they are charged with an offense falling under Title 7 of Book II of the Revised Penal Code, or with any other form of fraud involving government funds or property. True, the cases against petitioners involve violations of the Election Code; however, the charges are not unidimensional. Every law must be read together with the provisions of any other complementing law, unless both are otherwise irreconcilable. It must be emphasized that petitioners were incumbent public officers charged with the unauthorized and unlawful use of government property in their custody, in the pursuit of personal interests. The crime being imputed to them is akin to that committed by public officers as laid down in the Revised Penal Code. Certainly, petitioners’ acts constitute fraud against the government; thus, the present case is covered by Section 13 of RA 3019. Calrky The aforementioned proviso reinforces the principle that a public office is a public trust. Its purpose is to prevent the accused public officer from hampering his prosecution by intimidating or influencing witnesses, tampering with documentary evidence, or committing further acts of malfeasance while in office.[12] Preventive suspension is not a penalty;[13] petitioners, whose culpability remains to be proven, are still entitled to the constitutional presumption of innocence. Third Issue: Allegations of Procedural Prejudice

Petitioners assail the trial court’s Order of suspension on the ground that it was issued pursuant to the initial "Motion for Removal From Office,"[14] received by the trial court on December 6, 1996. The records show that this Motion neither complied with the notice requirements provided under the Rules of Court, nor was it filed by one who was a party to their cases. The Court has held time and again that a motion that does not meet the notice requirements of Sections 4 and 5 of Rule 15 of the Rules of Court[15] is pro forma, and that the trial court has no authority to act on it. The requisites laid down in the aforementioned provisions are categorical and mandatory, and the failure of the movants to comply with them renders their Motions fatally defective.[16] The Rules mandate the service of a copy of a motion containing a notice of time and place of hearing, in order to afford the adverse party time to study and answer the arguments in the said motion before its resolution by the court. Considering the circumstances of the present Petition, however, we believe that the requirements of procedural due process were substantially complied with, and that such compliance justifies a liberal interpretation of the above-mentioned rules. Mesm In his "Manifestation on Comment of the Accused," the COMELEC prosecutor adopted the assailed Motion as well as the February 28, 1997 "Supplement to Motion for Removal from Office." This action should be considered to have thus cured the procedural defect pointed out by petitioners. More important, however, is the fact that the trial court heard petitioners and considered their arguments. In their six-page Memorandum[17] filed pursuant to the directive of the trial court, petitioners were able to ventilate their arguments against the Motion for Removal from Office. They contended that neither RA 3019 nor Section 60 of the Local Government Code justified their suspension from office. Indeed, the purpose of a notice of hearing was served;[18] the pleadings that were filed for and against them negated their allegations of procedural prejudice. Under Section 13 of RA 3019, the suspension of a public officer is mandatory after the determination of the validity of the information, as enunciated in Socrates v. Sandiganbayan[19] which we quote:

"This Court has ruled that under Section 13 of the antigraft law, the suspension of a public officer is mandatory after the validity of the information has been upheld in a pre-suspension hearing conducted for that purpose. This pre-suspension hearing is conducted to determine basically the validity of the information, from which the court can have a basis to either suspend the accused and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. That hearing may be treated in the same manner as a challenge to the validity of the information by way of a motion to quash." In the case at bar, while there was no pre-suspension hearing held to determine the validity of the Informations that had been filed against petitioners, we believe that the numerous pleadings filed for and against them have achieved the goal of this procedure. The right to due process is satisfied not just by an oral hearing but by the filing and the consideration by the court of the parties’ pleadings, memoranda and other position papers. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED. Costs against petitioners. SO ORDERED.