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G.R. No. L-63915 April 24, 1985 LORENZO M. TAADA, ABRAHAM F.

SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 13191526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 17051723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 18531858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 21472161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-

703, 705-707, 712-786, 788-852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the 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, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non 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. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity accompanies the lawmaking process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5 The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned.

6 It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an allinclusive statement of a principle of absolute retroactive invalidity cannot be justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. G.R. No. 105364* June 28, 2001 PHILIPPINE VETERANS BANK EMPLOYEES UNION-N.U.B.E. and PERFECTO V. FERNANDEZ, petitioners, vs. HONORABLE BENJAMIN VEGA, Presiding Judge of Branch 39 of the REGIONAL TRIAL COURT of Manila, the CENTRAL BANK OF THE PHILIPPINES and THE LIQUIDATOR OF THE PHILIPPINE VETERANS BANK, respondents KAPUNAN, J.: May a liquidation court continue with liquidation proceedings of the Philippine Veterans Bank (PVB) when Congress had mandated its rehabilitation and reopening? This is the sole issue raised in the instant Petition for Prohibition with Petition for Preliminary Injunction and application for Ex Parte Temporary Restraining Order. The antecedent facts of the case are as follows: Sometime in 1985, the Central Bank of the Philippines (Central Bank, for brevity) filed with Branch 39 of the Regional Trial Court of Manila a Petition for Assistance in the Liquidation of the Philippine Veterans Bank, the same docketed as Case No. SP-32311. Thereafter, the Philipppine Veterans Bank Employees Union-N.U.B.E., herein petitioner, represented by petitioner Perfecto V. Fernandez, filed claims for accrued and unpaid employee wages and benefits with said court in SP-32311.1 After lengthy proceedings, partial payment of the sums due to the employees were made. However, due to the piecemeal hearings on the benefits, many

remain unpaid.2 On March 8, 1991, petitioners moved to disqualify the respondent judge from hearing the above case on grounds of bias and hostility towards petitioners.3 On January 2, 1992, the Congress enacted Republic Act No. 7169 providing for the rehabilitation of the Philippine Veterans Bank.4 Thereafter, petitioners filed with the labor tribunals their residual claims for benefits and for reinstatement upon reopening of the bank.5 Sometime in May 1992, the Central Bank issued a certificate of authority allowing the PVB to reopen.6 Despite the legislative mandate for rehabilitation and reopening of PVB, respondent judge continued with the liquidation proceedings of the bank. Moreover, petitioners learned that respondents were set to order the payment and release of employee benefits upon motion of another lawyer, while petitioners claims have been frozen to their prejudice. Hence, the instant petition. Petitioners argue that with the passage of R.A. 7169, the liquidation court became functus officio, and no longer had the authority to continue with liquidation proceedings. In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a Temporary Restraining Order enjoining the trial court from further proceeding with the case. On June 22, 1992, VOP Security & Detective Agency (VOPSDA) and its 162 security guards filed a Motion for Intervention with prayer that they be excluded from the operation of the Temporary Restraining Order issued by the Court. They alleged that they had filed a motion before Branch 39 of the RTC of Manila, in SP-No. 32311, praying that said court order PVB to pay their backwages and salary differentials by authority of R.A. No 6727, Wage Orders No. NCR-01 and NCR-01-Ad and Wage Orders No. NCR-02 and NCR-02-A; and, that said court, in an Order dated June 5, 1992, approved therein movants case and directed the bank liquidator or PVB itself to pay the backwages and differentials in accordance with the computation incorporated in the order. Said intervenors likewise manifested that there was an error in the computation of the monetary benefits due them. On August 18, 1992, petitioners, pursuant to the Resolution of this Court, dated July 6, 1992, filed their Comment opposing the Motion for Leave to File Intervention and for exclusion from the operation of the T.R.O. on the grounds that the movants have no legal interest in the subject matter of the pending action; that allowing intervention would only cause delay in the proceedings; and that the motion to exclude the movants from the T.R.O. is without legal basis and would render moot the relief sought in the petition. On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the issuance of the writs of certiorari and prohibition under Rule 65 of the Rules of Court in connection with the issuance by respondent judge of several orders involving acts of liquidation of PVB even after the effectivity of R.A. No. 7169.

PVB further alleges that respondent judge clearly acted in excess of or without jurisdiction when he issued the questioned orders. We find for the petitioners. Republic Act No. 7169 entitled "An Act To Rehabilitate The Philippine Veterans Bank Created Under Republic Act No. 3518, Providing The Mechanisms Therefor, And For Other Purposes", which was signed into law by President Corazon C. Aquino on January 2, 1992 and which was published in the Official Gazette on February 24, 1992, provides in part for the reopening of the Philippine Veterans Bank together with all its branches within the period of three (3) years from the date of the reopening of the head office.7 The law likewise provides for the creation of a rehabilitation committee in order to facilitate the implementation of the provisions of the same.8 Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the proposed Rehabilitation Plan of the PVB to the Monetary Board for its approval. Meanwhile, PVB filed a Motion to Terminate Liquidation of Philippine Veterans Bank dated March 13, 1992 with the respondent judge praying that the liquidation proceedings be immediately terminated in view of the passage of R.A. No. 7169. On April 10, 1992, the Monetary Board issued Monetary Board Resolution No. 348 which approved the Rehabilitation Plan submitted by the Rehabilitaion Committee. Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB to reopen. On June 3, 1992, the liquidator filed A Motion for the Termination of the Liquidation Proceedings of the Philippine Veterans Bank with the respondent judge. As stated above, the Court, in a Resolution dated June 8, 1992, issued a temporary restraining order in the instant case restraining respondent judge from further proceeding with the liquidation of PVB. On August 3, 1992, the Philippine Veterans Bank opened its doors to the public and started regular banking operations. Clearly, the enactment of Republic Act No. 7169, as well as the subsequent developments has rendered the liquidation court functus officio. Consequently, respondent judge has been stripped of the authority to issue orders involving acts of liquidation. Liquidation, in corporation law, connotes a winding up or settling with creditors and debtors.9 It is the winding up of a corporation so that assets are distributed to those entitled to receive them. It is the process of reducing assets to cash, discharging liabilities and dividing surplus or loss.

On the opposite end of the spectrum is rehabilitation which connotes a reopening or reorganization. Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency.10 It is crystal clear that the concept of liquidation is diametrically opposed or contrary to the concept of rehabilitation, such that both cannot be undertaken at the same time. To allow the liquidation proceedings to continue would seriously hinder the rehabilitation of the subject bank. Anent the claim of respondents Central Bank and Liquidator of PVB that R.A. No. 7169 became effective only on March 10, 1992 or fifteen (15) days after its publication in the Official Gazette; and, the contention of intervenors VOP Security, et. al. that the effectivity of said law is conditioned on the approval of a rehabilitation plan by the Monetary Board, among others, the Court is of the view that both contentions are bereft of merit. While as a rule, laws take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in a newspaper of general circulation in the Philippines, the legislature has the authority to provide for exceptions, as indicated in the clause "unless otherwise provided." In the case at bar, Section 10 of R.A. No. 7169 provides: Sec. 10. Effectivity. - This Act shall take effect upon its approval. Hence, it is clear that the legislature intended to make the law effective immediately upon its approval. It is undisputed that R.A. No. 7169 was signed into law by President Corazon C. Aquino on January 2, 1992. Therefore, said law became effective on said date. Assuming for the sake of argument that publication is necessary for the effectivity of R.A. No. 7169, then it became legally effective on February 24, 1992, the date when the same was published in the Official Gazette, and not on March 10, 1992, as erroneously claimed by respondents Central Bank and Liquidator. WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE and GRANTED. Respondent Judge is hereby PERMANENTLY ENJOINED from further proceeding with Civil Case No. SP- 32311. SO ORDERED. G.R. No. 108461 October 21, 1996 PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner, vs. HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND FIRESTONE CERAMIC, INC., respondents. TORRES, JR., J.:p The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z. Angeles, Presiding Judge of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-158 entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation.

The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process, declared as null and void and unconstitutional, PITC's Administrative Order No. SOCPEC 89-08-01 and its appurtenant regulations. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and Intervenor and against the Respondent, as follows: 1) Enjoining the further implementation by the respondent of the following issuances relative to the applications for importation of products from the People's Republic of China, to wit: a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended Petition); b) Prescribed Export Undertaking Form (Annex B, Id.);

c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.); d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order No. SOCPEC 89-08-01 (Annex D, Id.); e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of import applications (Annexes E, E-1., Ind.); f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export credits (Annex Z, Supplemental Petition), the foregoing being all null and void and unconstitutional; and, 2) Commanding respondent to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without the requirements prescribed in the above-mentioned issuances. IT IS SO ORDERED. The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01, 1 under which, applications to the PITC for importation from the People's Republic of China (PROC, for brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC carried out by the improper himself or through a tie-up with a legitimate importer in an amount equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio. Pertinent provisions of the questioned administrative order read: 3. COUNTERPART EXPORTS TO PROC

In addition to existing requirements for the processing of import application for goods and commodities originating from PROC, it is declared that: 3.1 All applications covered by these rules must be accompanied by a viable and confirmed EXPORT PROGRAM of Philippine products to PROC in an amount equivalent to the value of the importation from PROC being applied for. Such export program must be carried out and completed within six (6) months from date of approval of the Import Application by PITC. PITC shall reject/deny any application for importation from PROC without the accompanying export program mentioned above. 3.2 The EXPORT PROGRAM may be carried out by any of the following:

a. By the IMPORTER himself if he has the capabilities and facilities to carry out the export of Philippine products to PROC in his own name; or b. Through a tie-up between the IMPORTER and a legitimate exporter (of Philippine products) who is willing to carry out the export commitments of the IMPORTER under these rules. The tie-up shall not make the IMPORTER the exporter of the goods but shall merely ensure that the importation sought to be approved is matched one-to-one (1:1) in value with a corresponding export of Philippine products to PROC. 2 3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper together with his Import Application are as follows: a) b) Firm Contract, Sales Invoice or Letter of Credit. Export Performance Guarantee (See Article 4 hereof).

c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No. M-1006). This form should be used if IMPORTER has tie-up with an exporter for the export of Philippine Products to PROC. 4. EXPORT GUARANTEE

To ensure that the export commitments of the IMPORTER are carried out in accordance with these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE GUARANTEE (the "Guarantee") at the time of filing of the Import Application. The amount of the guarantee shall be as follows: For essential commodities: 15% of the value of the imports applied for. For other commodities: 50% of the value of the imports applied for. 4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit; (ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic Letter of Credit (with all bank opening charges for account of Importer) opened in favor of PITC as beneficiary.

4.2 The guarantee shall be made in favor of PITC and will be automatically forfeited in favor of PITC, fully or partially, if the required export program is not completed by the importer within six (6) months from date of approval of the Import Application. 4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a (i) refund of the cash deposited without interest; (ii) cancellation of the Bank holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that he has completed the export commitment pertaining to his importation and provided further that the following documents are submitted to PITC: a) b) c) d) 5. Final Sales Invoice Bill of lading or Airway bill Bank Certificate of Inward Remittance PITC EXPORT APPLICATION FOR NO. M-1005 MISCELLANEOUS

5.1 All other requirements for importations of goods and commodities from PROC must be complied with in addition to the above. 5.2 PITC shall have the right to disapprove any and all import applications not in accordance with the rules and regulations herein prescribed. 5.3 Should the IMPORTER or any of his duly authorized representatives make any false statements or fraudulent misrepresentations in the Import/Export Application, or falsify, forge or simulate any document required under these rules and regulations, PITC is authorized to reject all pending and future import/export applications of said IMPORTER and/or disqualify said IMPORTER from doing any business with SOCPEC through PITC. Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic corporations, organized and existing under Philippine laws, individually applied for authority to import from PROC with the petitioner. They were granted such authority after satisfying the requirements for importers, and after they executed respective undertakings to balance their importations from PROC with corresponding export of Philippine products to PROC. Private respondent Remington was allowed to import tools, machineries and other similar goods. Firestone, on the other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks, one of its products. Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the value of their importations, further import applications were withheld by petitioner PITC from private respondents, such that the latter were both barred from importing goods from PROC. 3 Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of Temporary Restraining Order and/or Writ of Preliminary

Injunction on January 20, 1992, against PITC in the RTC Makati Branch 58. 4 The court issued a Temporary Restraining Order on January 21, 1992, ordering PITC to cease from exercising any power to process applications of goods from PROC. 5 Hearing on the application for writ of preliminary injunction ensued. Private respondent Firstone was allowed to intervene in the petition on July 2, 1992, 6 thus joining Remington in the latter's charges against PITC. It specifically asserts that the questioned Administrative Order is an undue restriction of trade, and hence, unconstitutional. Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be submitted for decision upon the evidence so far presented. The court rendered its Decision 7 on January 4, 1992. The court ruled that PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has already been repealed by EO No. 133, issued on February 27, 1987 by President Aquino. The court observed: Given such obliteration and/or withdrawal of what used to be PITC's regulatory authority under the Special provisions embodied in LOI 444 from the enumeration of power that it could exercise effective February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be successfully argued that the PITC can no longer exercise such specific regulatory power in question conformably with the legal precept "expresio unius est exclusio alterius." Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact, makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the Congress of the Philippines by Section, 1, Article VII of the 1987 Philippine Constitution. The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer from serious constitutional infirmity, having been promulgated in pursuance of an international agreement (the Memorandum of Agreement between the Philippines and PROC), which has not been concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII, Section 21, of the 1987 Constitution, and therefore, null and void. Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1 and 19, Article XII of the 1987 Constitution, which

reads: Sec. 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 equality of life for all, especially the underprivileged. Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combination in restraint of trade or unfair competition shall be allowed. Lastly, the court declared the Administrative Order to be null and void, since the same was not published, contrary to Article 2 of the New Civil Code which provides, that: Art. 2. Laws shall take effect fifteen (15) days following the completion of their publication in the Official Gazette, unless the law otherwise provides. . . . Petitioner now comes to use on a Petition for Review on Certiorari, 8 questioning the court's decision particularly on the propriety of the lower court's declarations on the validity of Administrative Order No. 89-08-01. The Court directed the respondents to file their respective Comments. Subsequent events transpired, however, which affect to some extent, the submissions of the parties to the present petition. Following President Fidel V. Ramos' trip to Beijing, People's Republic of China (PROC), from April 25 to 30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President, through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and 92-03-08. 9 In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate Memorandum 10 instructing that all import applications for the PROC filed with the PITC as of April 20, 1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order. Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being required to comply anymore with the lifted requirement of balancing its imports with exports of Philippine products to PROC. 11 In its Constancia 12 filed with the Court on November 22, 1993, Remington expressed its desire to have the present action declared moot and academic considering the new supervening developments. For its part, respondent Firestone made a Manifestation 13 in lieu of its Memorandum, informing the court of the aforesaid developments of the new trade program of the Philippines with China, and prayed for the court's early resolution of the action.

To support its submission that the present action is now moot and academic, respondent Remington cites Executive Order No. 244, 14 issued by President Ramos on May 12, 1995. The Executive Order states: WHEREAS, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing Republic of the Philippines-People's Republic China Trade through the Philippine International Trading Corporations as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order; The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the People's Republic of China from the list of countries covered by Letter of Instructions No. 444. Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and Ninety-Five. PITC filed its own Manifestation 15 on December 15, 1993, wherein it adopted the arguments raised in its Petition as its Memorandum. PITC disagrees with Remington on the latter's submission that the case has become moot and academic as a result of the abrogation of Administrative Order SOCPEC No. 8908-01, since respondent Remington had incurred obligations to the petitioner consisting of charges for the 0.5% Counter Export Development Service provided by PITC to Remington, which obligations remain outstanding. 16 The propriety of such charges must still be resolved, petitioner argues, thereby maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by Executive fiat. There is no question that from April 20, 1993, when trading balancing measures with PROC were lifted by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and respondents are thus entitled anew to apply for authority to import from the PROC, without the trade balancing requirements previously imposed on proposed importers. Indeed, it appears that since the lifting of the trade balancing measures, Remington had been allowed to import anew from PROC. There remains, however, the matter of the outstanding obligations of the respondent for the charges relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the respondents freed from it? To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC 89-08-01, based on the arguments set up by the parties in their Petition and Comment. In so doing, we must inquire into the nature of the functions of the PITC, in the light of present realities.

The PITC is a government owned or controlled corporation created under P.D. No. 252 17 dated August 6, 1973. P.D. No. 1071, 18 issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes and powers of the said governmental entity were enumerated under Section 5 and 6 thereof. 19 On August 9, 1976, the late President Ferdinand Marcos issued Letter of Instruction (LOI) No. 444, 20 directing, inter alia, that trade (export or import of all commodities), whether direct or indirect, between the Philippines and any of the Socialist and other Centrally Planned Economy Countries (SOCPEC), including the People's Republic of China (PROC) shall be undertaken or coursed through the PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under its instructions; and, 3) undertake the processing and approval of all applications for export to or import from the SOCPEC. Pertinent provisions of the Letter of Instruction are herein reproduced: LETTER OF INSTRUCTION 444 xxx II. xxx xxx

CHANNELS OF TRADE

1. The trade, direct or indirect, between the Philippines and any of the Socialist and other centrally-planned economy countries shall upon issuance hereof, be undertaken by or coursed through the Philippine International Trading Corporation. This shall apply to the export and import of all commodities of products including those specified for export or import by expressly authorized government agencies. xxx xxx xxx

4. The Philippine International Trading Corporation shall participate in all official trade and economic discussions between the Philippines and other centrally-planned economy countries. xxx V. xxx xxx

SPECIAL PROVISIONS

The Philippine International Trading Corporation shall adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under these instructions. In this connection, the processing and approval of applications for export to or import from the Socialist and other centrally-planned economy countries shall, henceforth, be performed by the said Corporation. (Emphasis ours)

After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino promulgated Executive Order (EO) No. 133 21 reorganizing the Department of Trade and Industry (DTI) empowering the said department to be the "primary coordinative, promotive, facilitative and regulatory arm of the government for the country's trade, industry and investment activities" (Sec. 2, EO 133). The PITC was made one of DTI's line agencies. 22 The Executive Order reads in part: EXECUTIVE ORDER NO. 133 xxx xxx xxx Line Corporate Agencies and Government Entities.

Sec. 16.

The following line corporate agencies and government entities defined in Section 9 (c) of this Executive Order that will perform their specific regulatory functions, particularly developmental responsibilities and specialized business activities in a manner consonant with the Department mandate, objectives, policies, plans and programs: xxx xxx xxx

d) Philippine International Trading Corporation. This corporation, which shall be supervised by the Undersecretary for International Trade, shall only engage in both export and trading on new or non-traditional products and markets not normally pursued by the private business sector; provide a wide range of export oriented auxiliary services to the private sector; arrange for or establish comprehensive system and physical facilities for handling the collection, processing, and distribution of cargoes and other commodities; monitor or coordinate risk insurance services for existing institutions; promote and organize, whenever warranted, production enterprises and industrial establishments and collaborate or associate in joint venture with any person, association, company or entity, whether domestic or foreign, in the fields of production, marketing, procurement, and other relate businesses; and provide technical advisory, investigatory, consultancy and management services with respect to any and all of the functions, activities, and operations of the corporation. Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and PROC entered into a Memorandum of Understanding 23 (MOU) wherein the two countries agreed to make joint efforts within the next five years to expand bilateral trade to US $600 US $800 Million by 1992, and to strive for a steady progress towards achieving a balance between the value of their imports and exports during the period, agreeing for the purpose that upon the signing of the Memorandum, both sides shall undertake to establish the necessary steps and procedures to be adopted within the framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and ensure the implementation of the MOU.

Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989, 1990 and 1991, 24 under which was specified the commodities to be traded between them. The protocols affirmed their agreement to jointly endeavor between them. The protocols affirmed their agreement to jointly endeavor to achieve more or less a balance between the values of their imports and exports in their bilateral trade. It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols with PROC that PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01 25 on August 30, 1989 (amended in March, 1992). Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of LOI 444, which was issued by then President Marcos, both issuances being executive directives. As observed by us in Philippine Association of Services Exporters, Inc. vs. Torres, 26 there is no need for legislative delegation of power to the President to revoke the Letter of Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI 1190 was issued by President Marcos, when he was extraordinarily empowered to exercise legislative powers, whereas EO 450 was issued by Pres. Aquino when her transitional legislative powers have already ceased, since it was found that LOI 1190 was a mere administrative directive, hence, may be repealed, altered, or modified by EO 450. We do not agree, however, with the trial court's ruling PITC's authority to issue rules and regulations pursuant to the Special Provision of LOI 444 and P.D. No. 1071, have already been repealed by EO 133. While PITC's power to engage in commercial import and export activities is expressly recognized and allowed under Section 16 (d) of EO 133, the same is not limited only to new or non-traditional products and markets not normally pursued by the private business sector. There is not indication in the law of the removal of the powers of the PITC to exercise its regulatory functions in the area of importations from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded, is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the PITC. Likewise, the general repealing clause in EO 133 stating that "all laws, ordinances, rules, and regulations, or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between the issuances, relating to the regulatory power of the PITC. The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI was established, and was given powers and duties including those previously held by the PITC as an independent

government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI as an implementing arm of the said department. EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of government for the country's trade, industry and investment activities, which shall act as a catalyst for intensified private sector activity in order to accelerate and sustain economic growth. 27 In furtherance of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities of the government related to trade industry and investments; to formulate and administer policies and guidelines for the investment priorities plan and the delivery of investment incentives; to formulate country and product export strategies which will guide the export promotion and development thrusts of the government. 28 Corollarily, the Secretary of Trade and Industry is given the power to promulgate rules and regulations necessary to carry out the department's objectives, policies, plans, programs and projects. The PITC, on the other hand, was attached as an integral part to the said department as one of its line agencies, 29 and given the focal task of implementing the department's programs. 30 The absence of the regulatory power formerly enshrined in the Special Provision of LOI 444, from Section 16 of EO 133, and the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC has lost the authority to issue the questioned Administrative Order. It is our view that PITC still holds such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the Department of Trade and Industry. Furthermore, the lower court's ruling to the effect that the PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of the later presidential edict. The President could not have intended to deprive herself of the power to regulate the flow of trade between the Philippines and PROC under the two countries' Memorandum of Understanding, a power which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President intended merely to reorganize the Department of Trade and Industry to cope with the need of a streamlined bureaucracy. 31 Thus, there is not real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the administrative functions among the administrative bodies affective by the edict, but not an abolition of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a construction of a statutory provision which harmonizes and reconciles it with other statutory provisions. 32 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 latter, since the law may be cumulative or a continuation of the old one. 33 Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal within the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasilegislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government. 34 Evidently, in the exercise of such powers, the agency concerned must commonly interpret and apply contracts and determine the rights of private parties under such contracts. One thrust of the multiplication of administrative agencies is that the interpretation of contracts and the determination of private rights thereunder is no longer uniquely judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs. National Housing Authority, G.R. No. L-50444, August 31, 1987, 153 SCRA 399). With global trade and business becoming more intricate may even with new discoveries in technology and electronics notwithstanding, the time has come to grapple with legislations and even judicial decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign governments or entities may have interests. Thus, administrative policies and regulations must be devised to suit these changing business needs in a faster rate than to resort to traditional acts of the legislature. This tendency finds support in a well-stated work on the subject, viz.: Since legislatures had neither the time nor the knowledge to create detailed rules, however, it was soon clear that new governmental arrangements would be needed to handle the job of rule-making. The courts, moreover, many of them already congested, would have been swamped if they had to adjudicate all the controversies that the new legislation was bound to create; and the judges, already obliged to handle a great diversity of cases, would have been hard pressed to acquire the knowledge they needed to deal intelligently with all the new types of controversy. So the need to "create a large number of specialized administrative agencies and to give them broader powers than administrators had traditionally exercised. These included the power to issue regulations having the force of law, and the power to hear and decide cases powers that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce, Lawmaking by Administrative Agencies, p. 166) The respondents likewise argue that PITC is not empowered to issue the Administrative Order because no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols aforesaid, are only the enumeration of the products and goods which signatory

countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested in the Executive Department, 35 and it is for the latter to delegate the exercise of such power among its designated agencies. In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power ancillary to legislation. This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importation, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Art. 2. Laws shall take effect fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. . . . The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order. This court, in Tanada vs. Tuvera 36 stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties xxx xxx xxx

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which

should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made subject to them, because Administrative Order 89-08-01 embodying the same was never published, as mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said Administrative Order were filed in the UP Law Center, and published in the National Administrative Register as required by the Administrative Code of 1987. Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the People's Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing RP-PROC trade through the PITC as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade. 37 Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade relations with our neighbors to flourish and may be encouraged. ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS: 1) Enjoining the petitioner: a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the total value of the unliquidated or unfulfilled Undertakings of the private respondents; b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its appurtenant rules; and, 2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the requirements prescribed in the above-stated issuances. SO ORDERED. G.R. No. 80718 January 29, 1988 FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs. COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents. RESOLUTION CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time. At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it. The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987. This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit: Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal. Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit: In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable. Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed. This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].] In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period. Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals. This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit. G.R. No. L-65894 September 24, 1987 THE MUNICIPAL GOVERNMENT OF CORON, PALAWAN, duly represented by MAYOR RICARDO F. LIM, petitioner, vs. JOSE CARINO, VICTORIANO DACULLA, BEN GUMASING, LUCENA CRUZ, HILARIA YALON, PEPITO YAMBAO, RIC GACUTAN, ANDRES DACULLA, FELICISIMA URSAIS, PASTOR JOSOL, TEDDY ACTANG, CANDIDA MANALO, LETICIA RAMAL, ASSOCIATE JUSTICES PORFIRIO V. SISON, ABDULWAHID A. BIDIN, MARCELINO R. VELOSO and DESIDERIO P. JURADO, respondents. GUTIERREZ, JR., J.: The second paragraph of Section 39, Batas Pambansa Bilang 129 provides that: No record on appeal shall be required to take an appeal. In lieu thereof, the entire original record shall be transmitted with all the pages prominently numbered consecutively, together with an index of the contents thereof. Likewise, Sections 18 and 19(b) of the Interim Rules of Court promulgated on January 11, 1983 provide that: Sec. 18. The filing of a record on appeal shall be dispensed with, except in the cases referred to in sub-paragraph (b) of paragraph (1) hereof. No appeal bond shall be required for an appeal. xxx xxx xxx Sec. 19 (b) In appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required. Whether or not the above provisions are applicable to the case at bar is the lone issue in this petition which assails the resolution of the respondent appellate court dated July 29, 1983. The dispositive part of the questioned resolution reads: WHEREFORE, notwithstanding the foregoing, in the broader interest of justice and considering that under the present Interim Rules a record on appeal is no longer necessary for taking an appeal, the Court resolved to order the recall of the records of this case from the Regional Trial Court of Palawan Branch I, Puerto Princess for further proceedings before this Court. (Rollo, pp. 12-13) Following are the pertinent facts of the case as culled from the records. Sometime in 1976, an action was filed by the petitioner before the Court of First Instance of Palawan and Puerto Princess City, Branch IV where it was docketed as Civil Case No. 35. The action sought authority from the court to demolish the structures built by the private respondents alongside the rock causeway of the petitioner's wharf. The complaint alleged, among others: that the defendants' houses were constructed more than 3 years before the

filing of instant action (par. 2, Complaint),: that on August 19, 1974 the herein defendants undertook to remove their structures on space where they were then at that time and are presently standing, when it will be needed by the government (par. 3, Ibid); that the space or area is needed by the plaintiff for the docking or berthing of pumpboats (motorized bancas) and fishing boats and for the loading and unloading of cargoes along the pier on both sides thereof (par. 4, Ibid); and also to ease the congested traffic along it (par. 10, Ibid); that his Excellency, President Ferdinand E. Marcos had the Mayor of plaintiff-municipality to demolish and remove all constructions along the pier after giving the defendants one month notice (par. 5, Ibid) and aside from this directive of the President, the mayor of the plaintiff-municipality is also authorized to remove the defendants' illegal constructions under LOI 19 (par. 7, Ibid); that despite said mayor's desire to comply immediately with the said presidential directive, the defendants had already been given 3 extensions thereby delaying their ejectment therefrom (par. 6, Ibid); that most of the defendants are affluent squatters (par. 9, Ibid); and that for the indigent defendants, a surveyed area has already been made ready for their relocation (par. 12, Ibid). (Decision CFI, Palawan and Puerto Princess City, Branch IV, p. 2; Reno, p. 15). On the other hand, the private respondents, in their answer, counter-alleged, among others: that their structures when made were covered by building permits with the approval of the Bureau of Public Highways (par, 2, Answer); that the area where their structures were located is a foreshore area (Par. 4, Ibid); that a meeting was convened and presided by Governor Socrates at Coron, the same having been attended by the local representatives of the Philippine Constabulary, the Philippine Coast Guard, the Department (now Ministry) of Social Services and Development, the Sangguniang Bayan and the defendants and it was agreed in this meeting that the demolition of the defendants' houses will be suspended pending action of the Office of the President (par. 15, 16, 17, Ibid); and that the Chairman of the National Housing Authority had sent a letter-advice to the mayor of the plaintiff-municipality to suspend the demolition of the houses of the defendants (par. 18, Ibid). (Rollo, pp. 15-16) After a series of postponements, the trial court, on January 16, 1979, reset the hearing of the case for the last time for three consecutive dates, March 20, 21, and 22, 1979 with further warning to the private respondents that no more postponements shall be allowed. On March 20, 1979, despite proper notice, the private respondents and their counsel failed to appear at the scheduled hearing. Consequently, the petitioner moved that private respondents' non-appearance be considered as a waiver on their part of their right to cross-examine the petitioner's witnesses and their right to present evidence. The lower court issued an order granting the petitioner's motion and considered the case submitted for decision. In view of the above order, the private respondents went to the appellate court on certiorari. On June 9, 1979, the appellate court dismissed for lack of merit

CA G.R. SP-09389-R captioned "Jose Carino, et al., petitioners v. Mayor Ricardo Lim and Hon. Benjamin Vega, Judge CFI, Palawan, Branch IV." On May 15, 1979, after the main case had been submitted for decision as aforestated, the private respondents filed a notice to take deposition which the lower court disregarded for being "irrelevant and for other obvious reasons." On October 10, 1980, the lower court rendered its decision, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff-municipality of Coron, Palawan and against all the herein defendants as follows: 1. Dismissing the defendants'counterclaim for lack of merit;

2. Confirming the power of plaintiff-municipality and authority of its incumbent mayor to demolish the defendants' structures along the rock causeway or pier of Coron; and 3. Ordering the said defendants to remove their structures in the area in question within thirty (30) days from receipt of this decision and for their failure to do so, authorizing the herein plaintiff represented by its incumbent mayor to demolish the said structures at the expense of the said defendants. Costs against all the defendants. (Rollo, pp. 28-29) On appeal, the private respondents on February 2, 1982 were required "to submit the forty (40) printed copies of their record on appeal together with the proof of service of fifteen (15) copies thereof upon the appellee" within fifteen (15) days from receipt of the notice of the appellate court's Acting Clerk of Court regarding their appeal. (Rollo, p. 32) Upon motion by the private respondents, the appellate court granted an extension of sixty (60) days from April 7, 1982 within which the required printed copies of the record on appeal may be submitted. However, despite the extended period given, the private respondents were not able to comply with the appellate court's requirement. In a resolution dated July 19, 1982, the appellate court required the private respondents to show cause why their appeal should not be dismissed for failure to file the printed copies of the record on appeal. On August 31, 1982, the appellate court resolved to dismiss the private respondents' appeal docketed as CA G.R. No. 69052-R for failure to file the required record on appeal. On December 6, 1982, the Acting Clerk of Court of the appellate court, in an Entry of Judgment, certified that the above resolution dismissing the private respondents' appeal had become final and executory on September 27, 1982.

Accordingly, on February 1, 1983, a writ of execution was issued to enforce the October 10, 1980 decision of the Court of First Instance of Palawan and Puerto Princesa City, Branch IV. Before the Provincial Sheriff could proceed with the execution of the judgment, the private respondents, in a motion dated April 12, 1983 asked the appellate court that the records of the case be recalled from the court of origin. In their supplemental motion, the private respondents argued that since under the present law, printed records on appeal are no longer required, their right to be heard on appeal must be upheld instead of the rule on technicalities. In its opposition to the private respondents' motion, the Petitioner pointed out that although the newly promulgated procedural rules invoked by the private respondents may be given retroactive effect, their applicability only covers pending actions and does not extend to those which had already become final and executory. As a consequence of the private respondents' motion to recall the records of the case, a temporary restraining order dated April 29, 1983 was issued by the appellate court directing the Provincial Sheriff of Palawan to desist from executing the October 10, 1980 decision. On July 29, 1983, the appellate court issued the disputed resolution. The subsequent denial of the petitioner's motion for reconsideration prompted the filing of this petition. The petitioner maintains that the Interim Rules of Court promulgated on January 11, 1983 to implement the provisions of Batas Pambansa Bilang 29 cannot apply to the case at bar for the simple reason that to revive or recall appealed cases which had been dismissed or which had become final and executory would cause a great injustice to those in whose favor these cases had been decided. It is further contended that to allow its application would put no end to those appealed cases which are otherwise considered as closed ones. We find merit in the petitioner's contentions. We have resolved the issue as to the extent of the retroactive application of section 18 of the Interim Rules of Court in Alday v. Camilon (120 SCRA 521). We reiterated the rule that: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent. (People vs. Sumilang, 77 Phil. 764 [1946]) Emphasis supplied. The appellate court should have followed this time-honoured rule instead of issuing its July 29, 1983 resolution seeking to revive a case already long final as evidenced by the entry of judgment made by its Acting Clerk of Court on

December 6, 1982. The records of the instant case show that despite the 60-day extension period given to the private respondents within which they could file their printed record of appeal as then required, they still failed to do so. It was only after a writ of execution had been issued on February 1, 1983 that the private respondents responded to the appellate court's resolution dated July 19, 1982 requiring them to show cause why their appeal should not be dismissed for failure to file the printed record on appeal. They claimed that the court's resolution must have been a result of oversight because they actually filed a record on appeal. As a general rule, our policy towards an invocation of the right to appeal has been one of liberality. (Castro vs. Court of Appeals, 123 SCRA 782 citing De Las Alas vs. Court of Appeals, 83 SCRA 200). This is so because an appeal is an essential part of our judicial system and every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause freed from the constraints of technicalities. (See Siguenza vs. Court of Appeals, 137 SCRA 570). However, it is an equally established doctrine that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. (See United CMC Textile Workers Union vs. Clave, 137 SCRA 346). For a proper exercise of their right to appeal, the private respondents should have complied with Section 5, Rule 46 of the Rules of Court, as amended by our resolution en banc dated September 17, 1974, which partly provides that: Sec. 5. Duty of Appellant upon Receipt of Notice. It shall be the duty of the appellant, within fifteen (15) days from the date of the notice referred to in the preceding section, to pay to the Clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court twelve (12) printed copies of the record on appeal, or twelve (12) typewritten or mimeographed (on one side of good quality paper, eleven inches in length by eight and a half inches in width commonly known as letter size written double spaced) copies of said record on appeal together with proof of service of two (2) printed, typewritten or mimeographed copies thereof upon the appellee. Thus, upon failure of the appellant to comply with the above rule, the Court of Appeals may dismiss his appeal. Said provision implicitly grants the Court of Appeals the power to do so. (See Pfleider vs. Victoriano, 98 SCRA 491). The private respondents in this case did not submit printed copies of their record on appeal. When the appellate court issued its July 19, 1982 resolution, it was to afford the private respondents a chance to explain why they failed to comply with the applicable rule. After having failed to submit the required printed copies of their record on appeal, they cannot now rectify a clear noncompliance with the law by invoking the court's liberality insofar as the application of remedial laws is concerned. The private respondents even faulted the appellate court as having issued the July 19, 1982 resolution through oversight. They alleged that they had filed the required record on

appeal when in fact what they referred to was the record on appeal from the lower court to the appellate court and not the printed record on appeal. Since the private respondents failed to submit the required printed record on appeal, the lower court's judgment in favor of the petitioner became final. and executory as an eventual result of the dismissal of the appeal. Once a judgment becomes final the prevailing party, the petitioner in the instant case, is entitled as a matter of right to the execution of the judgment in his favor. For the court, it becomes its ministerial duty to order the execution of said judgment. (Santos, Jr. vs. Court of Appeals, et al., G.R. No. 56614, promulgated July 28, 1987 citing Agricultural and Industrial Marketing, Inc. vs. Court of Appeals, 118 SCRA 49; Balintawak Construction Supply Corporation vs. Valenzuela, 124 SCRA 331; Rizal Commercial Banking Corporation vs. Dayrit, 123 SCRA 203; Gonzales vs. Sayo, 122 SCRA 607). WHEREFORE, the petition is hereby GRANTED. The resolution of respondent appellate court dated July 29, 1983 is SET ASIDE. Let the records of this case be remanded to the court of origin for enforcement of the writ of execution of the judgment. This decision is immediately executory. SO ORDERED. G.R. No. 97998. January 27, 1992. DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and BENITO SALVANI PE, respondents. Ruben e. Agpalo for Sps. Gauvain and Bernardita Benzonan. Vicente R. Acsay for Benito Salvani Pe. Thomas T, Jacobo for DBP. SYLLABUS 1.CIVIL LAW; PUBLIC LAND ACT (C.A. NO. 141); MORTGAGE OF PUBLIC LANDS; REDEMPTION; NOT ALLOWED WHERE THE INTENTION OF THE MORTGAGOR WAS NOT FOR THE PURPOSE OF PRESERVING THE SAME WITHIN THE FAMILY FOLD; CASE AT BAR. Only three months after getting the free patent and the original certificate of title over the subject lot, it was mortgaged by respondent Pe to get a commercial loan of nearly P1 million from DBP. Pe spent the proceeds of the loan to construct permanent improvements on the lot. The entire lot has been converted to serve commercial and industrial purposes. The records show that it was never the intention of respondent Pe to utilize the land, given to him for free by the Government, for agricultural purposes. He was not the kind of poor farmer for whom homesteads and free patents were intended by the law. In the light of the records of these cases, we rule that respondent Pe cannot repurchase the disputed property without doing violence to everything that CA No. 141 (as amended) stands for. 2.ID.; ID.; ID.; ID.; PURPOSE AND BASIC OBJECTIVE. The underlying principle of Section 119 of Commonwealth Act No. 141 is to give the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given to him as a reward for his labor in cleaning and cultivating it. (Simeon v. Pea, 36 SCRA 617 cited in Vargas v. Court of Appeals, 91 SCRA 195, 200, [1979]). Its basic objective is to promote public policy, that is, to provide home and decent living for destitutes, aimed at promoting a class of independent small landholders which is the bulwark of peace and order. Santana, et al. v. Marias, 94 SCRA 753, 861-862 [1979]. 3.ID.; ID.; ID.; ID.; FIVE-YEAR PERIOD COMMENCES FROM DATE OF

CONVEYANCE OR FORECLOSURE SALE PURSUANT TO MONGE (101 Phil. 563) AND TUPAZ (132 SCRA 593) CASES; DOCTRINE IN BELISARIO CASE (165 SCRA 101) REVERSING THE RULING IN THE MONGE AND TUPAZ CASES; NOT APPLICABLE TO CASE AT BAR. As noted by the respondent court, the 1988 case of Belisario reversed the previous rulings of this Court enunciated in Monge, et al., v. Angeles, et al., 101 Phil. 563 [1957] and Tupas v. Damasco, et al., 132 SCRA 593 [1984] to the effect that the five year period of repurchase should be counted from the date of conveyance or foreclosure sale. The petitioners, however, urge that Belisario should only be applied prospectively or after 1988 since it established a new doctrine. We sustain the petitioners' position. It is undisputed that the subject lot was mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners on September 29, 1979. At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. 4.ID.; ID.; ID.; ID.; ID.; ID.; REASON. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]). The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. 5.ID.; ID.; ID.; ID.; ID.; ID.; ABSENCE OF EQUITABLE CONSIDERATIONS TO WARRANT RETROACTIVE APPLICATION OF BELISARIO DOCTRINE. There may be special cases where weighty considerations of equity and social justice will warrant a retroactive application of doctrine to temper the harshness of statutory law as it applies to poor farmers or their widows and orphans. In the present petitions, however, we find no such equitable considerations. Not only did the private respondent apply for free agricultural land when he did not need it and he had no intentions of applying it to the noble purposes behind the law, he would now repurchase for only P327,995.00, the property purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which, because of improvements and the appreciating value of land must be worth more than that amount now. 6.ID.; ID.; ID.; VESTED RIGHTS OF BUYERS IN GOOD FAITH SHOULD NOT BE IMPAIRED. The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas when they purchased the property from DBP in 1979 or thirteen (13) years ago. Under the rulings in these two cases, the period to repurchase the disputed lot given to respondent Pe expired on June

18, 1982. He failed to exercise his right. His lost right cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over the subject lot had already become vested as of that time and cannot be impaired by the retroactive application of the Belisario ruling. DECISION GUTIERREZ, JR., J p: This is a petition to review the August 31, 1990 decision of the Court of Appeals which sustained the right of respondent Benito Salvani Pe to repurchase a parcel of land foreclosed by petitioner Development Bank of the Philippines (DBP) and sold to petitioners Gauvain and Bernardita Benzonan. Respondent Pe is a businessman in General Santos City who owns extensive commercial and agricultural properties. He is the proprietor of the firm "Dadiangas B.P. Trading." One of the properties he acquired through free patents and miscellaneous sales from the Bureau of Lands is a 26,064 square meters parcel covered by Free Patent No. 46128 issued on October 29, 1969. OCT No. P-2404 was issued on November 24, 1969. On February 24, 1970 or barely three months after he acquired the land, the respondent mortgaged the lot in question, together with another lot covered by TCT No. 3614 and some chattels to secure a commercial loan of P978,920.00 from the DBP. The lot was developed into a commercial-industrial complex with ricemill and warehouse facilities, a solar drier, an office and residential building, roadway, garden, depository, and dumping grounds for various materials. When the private respondent failed to pay his loan after more than seven years had passed, DBP foreclosed the mortgage on June 28, 1977. On that date, the total obligation amounted to P1,114,913.34. DBP was the highest bidder. Certificates of sale were issued in its favor; P452,995.00 was for the two lots and P108,450.00 for the chattels. The certificate covering the disputed lot was registered with the Registry of Deeds on January 24, 1978. After the foreclosure sale, respondent Pe leased the lot and its improvements from DBP for P1,500.00 a month. Part of the property was also leased by DBP to the then National Grains Authority. The respondent failed to redeem the property within the one year period. On September 24, 1979 DBP sold the lot to the petitioners for P1,650,000.00 payable in quarterly amortizations over a five year period. The petitioners occupied the purchased lot and introduced further improvements worth P970,000.00. On July 12, 1983, claiming that he was acting within the legal period given to him to repurchase, respondent Pe offered in writing to repurchase the lot for P327,996.00. DBP countered, however, that over the years a total of P3,066,739.62 had already been incurred in the preservation, maintenance, and introduction of improvements. On October 4, 1983, Pe filed a complaint for repurchase under Section 119 of Commonwealth Act No. 141 with the Regional Trial Court (RTC) of General Santos City. On November 27, 1986, the trial court rendered judgment. The dispositive portion reads: "WHEREFORE, in view of the foregoing, the defendant Development Bank of the Philippines is ordered:

1)to reconvey unto the plaintiff the parcel of land in question (Lot No. P-2404) for the repurchase price of P327,995.00 plus legal interest from June 18, 1977 to June 19, 1978 only, and the expenses of extrajudicial foreclosure of mortgage; expenses for registration and ten percent (10%) attorney's fees; 2)ordering the defendants to vacate forever the premises of said property in favor of the plaintiff upon payment of the total repurchase price; 3)ordering the defendants, jointly and solidarily, to pay the plaintiff attorney's fees in the amount of P25,000.00; 4)and to set an example to government banking and lending institutions not to take borrowers for granted by making it hard for them to repurchase by misleading them, the bank is hereby ordered to pay the plaintiff by way of exemplary damages in the amount of P50,000.00; Ordering further the defendant DBP: 5)to reimburse the co-defendants spouses Benzonan the amount they have paid or advanced the defendant DBP for the purchase of Lot O.C.T. No. P-2404; 6) ordering the defendants to pay the cost of suit." (Rollo of G.R. No. 97973, pp. 74-75) On appeal, the Court of Appeals affirmed the decision with modifications as follows: xxx xxx xxx "All the foregoing premises considered, judgment is hereby rendered AFFIRMING the decision rendered by the court a quo with the modification that the defendant DBP shall reimburse to its co-defendant Benzonan spouses all amounts that the latter have paid for the land, minus interest, and that the Benzonan spouses shall be allowed to remove the improvement that they have made on the property under litigation, without impairing or damaging the same." (Rollo of G.R. No. 97973, p. 105) A motion for reconsideration was denied on March 19, 1991. The petitioners-spouses in G.R. No. 97973 raise the following "legal issues, reasons, or errors" allegedly committed by the Court of Appeals, to wit: "1.The Court of Appeals erred in holding that conversion and use of the land in question to industrial or commercial purposes, as a result of which it could no longer be used for cultivation, and the fact that respondent Pe has vast holdings whose motive in seeking to repurchase the property is to continue the business or for speculation or greater profits did not deprive him of the right to repurchase under Sec. 119 of CA 141, and, as a result, in ignoring or disregarding Pe's admissions and undisputed facts establishing such circumstances, contrary to what this Court held in Santana v. Marias, 94 SCRA 853 [1979], Vargas v. Court of Appeals, 91 SCRA 195 [1979] and Simeon v. Pea, 36 SCRA 610 [1970]). 2.Assuming, arguendo, that respondent Pe still had the right to repurchase the land under Sec. 119 of CA 141, the Court of Appeals erred in not counting the 5-year period from the date of foreclosure sale on June 18, 1977 or at the very most from its registration on January 24, 1978, in accordance with the prevailing doctrinal law at the time as enunciated in Monge v. Angeles, 101 Phil. 561 [1957] Oliva v. Lamadrid, 21 SCRA 737 [1967] and Tupas v. Damasco, 132 SCRA 593 [1984], pursuant to which Pe's right to repurchase already expired.

3.The Court of Appeals erred in applying retroactively the ruling in Belisario v. Intermediate Appellate Court, 165 SCRA 101 [1988], which held that the 5-year period is counted from the date after the one-year period to redeem foreclosed homestead expired, to the foreclosure of the land in question in 1977, as its retroactive application revived Pe's lost right of repurchase and defeated petitioners' right of ownership that already accrued under the then prevailing doctrinal law. 4.Assuming, arguendo, that respondent Pe had the right to repurchase the land in question and assuming, further, that the 5-year period is to be counted from the consolidation of ownership after the expiration of the one-year period to redeem, the Court of Appeals erred in not holding that the mere filing of an action for repurchase without tendering or depositing the repurchase price did not satisfy the requirements of repurchase, Pe's failure to make the tender or deposit even up to the present being confirmatory of speculative motive behind his attempt to repurchase. 5.Assuming, finally, that respondent Pe is entitled to repurchase the property, the Court of Appeals erred in not holding that petitioners are possessors in good faith, similar to a vendee a retro, entitled (a) to reimbursement of necessary and useful expenses under Article 1616 of the Civil Code as held in Calagan v. CFI of Davao, 95 SCRA 498 [1980] and in Lee v. Court of Appeals, 68 SCRA 196 [1975]; and (b) to refund of all amounts paid by them by reason of the sale of the property in their favor, including interest payments, in both instances with right of retention." (Rollo of G.R. No. 97973, pp. 14-16) In G.R. No. 97998, DBP limited its petition to the value of the repurchase price and the nature of the contract between the parties. It framed the issues as follows: "1.The Court of Appeals erred in not holding that Section 31 of Commonwealth Act No. 459 as amended is not applicable in the instant case to determine the repurchase price contrary to decisions of the Honorable Supreme Court in the following cases: DBP v. Jimenez, et al. (36 SCRA 426) and DBP v. Mirang (66 SCRA 141). 2.The Court of Appeals erred in not holding that the law between the contracting parties are the terms and conditions embodied in the contract signed by them." (Rollo of G.R. No. 97998, p. 12) We find merit in the petitions. The determination of the main issues raised by the petitioners calls for the proper application of Section 119 of CA 141 as amended which provides: "Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period of five years from the date of conveyance."

There is no dispute over the fact that the Government awarded the land to respondent Pe so that he could earn a living by farming the land. Did respondent Pe lose his right to repurchase the subject agricultural lot under the aforequoted law considering its conversion for industrial or commercial purposes? The evidence relating to the conversion is sufficiently established and yet was not properly appreciated by the respondent court. Only three months after getting the free patent and the original certificate of title over the subject lot, it was mortgaged by respondent Pe to get a commercial loan of nearly P1 million from DBP. Pe spent the proceeds of the loan to construct permanent improvements on the lot for his rice-mill and other businesses, i.e., two warehouse buildings; administration-residential building; perimeter fence; solar and concrete drier; shed; machine shop; dirty kitchen; and machineries and equipments such as ricemill (TSN, August 13, 1984, pp. 173-174). The entire lot has been converted to serve commercial and industrial purposes. The testimony of petitioners Gauvain Benzonan on this score has not been successfully challenged, viz: "Q.Out of this 2.6 hectares land area, how much of this is devoted to the solar drier construction? A.The solar drier is about one thousand (1,000) square meters . . . ah no, about six thousand (6,000) square meters. Q.What about the area occupied by the warehouse and the ricemill complex? A.The warehouse and ricemill complex is occupying about one and a half (1 1/2) hectares. Q.What about the area occupied by the residence as well as the roadways? A.It covers about another half of a hectare again, Sir. Q.Is any part of this two point six hectares devoted to agricultural production or production of agricultural crops? A.None whatsoever because the other portion is occupied as a dumping area for our waste materials." (TSN, PP. 361-362, Sept. 3, 1985) The conversion of the lot for commercial purposes is understandable considering that the heart of General Santos City developed in that area. The respondent does not deny that, he is using the land for purely commercial and industrial purposes. His explanation is that the land may be converted into agricultural land in the future. He applies the Krivenko v. Register of Deeds of Manila (79 Phil. 461 [1947]) ruling that lands not mineral or forest are agricultural in nature and may be devoted to business purposes without losing their agricultural classification. Indeed, the records show that it was never the intention of respondent Pe to

utilize the land, given to him for free by the Government, for agricultural purposes. He was not the kind of poor farmer for whom homesteads and free patents were intended by the law. As stated by the petitioners: "1.Respondent Pe acquired by free patent the land in question with an area of 2.6064 hectares, which was issued Original Certificate of Title No. P-2404 on November 24, 1969. Instead of cultivating it for agricultural purposes, Pe mortgaged the land, along with another land, on February 24, 1970, or only three (3) months from issuance of OCT No. P-2404, with the DBP for P978,920.00. (par. 4, complaint, Annex "A"). Pe testified that his purpose was to construct in the land in question 'bodega', an administration-residential building, a perimeter fence, a concrete drier, and for some machineries and equipment." (TSN, p. 95, June 22, 1984). He stated that the improvements and facilities in the land included 'the warehouse, the ricemill and a big warehouse housing the palay of stocks of the National Grains Authority and an administration residential building, a solar drier and a perimeter fence and some sheds or garage . . . a small piggery pen of several compartments, a dirty kitchen . . . a machine shop.' (TSN, pp. 173-174, August 13, 1984). Pe used the property for such purposes and operated the ricemill business for a period of about nine (9) years until September, 1979 (pars. 7 and 8, complaint, Annex "A"), without paying the DBP of his mortgage indebtedness, as a result of which DBP foreclosed the properties. (Annex "F") 2.Respondent Pe testified that the land in question with its improvements has an appraised value of P1,347,860.00 in 1974, and P2,028,030.00 in 1976. (TSN, pp. 176, 177, August 13, 1984). Petitioner Gauvain Benzonan claimed it has a fair market value, as of 1985, of P5,000,000.00. (p. 8, trial court decision, Annex "F"). As against such value of the land and improvements, respondent Pe insisted that the repurchase price should only be the principal sum of P327,995.00. (par. 10, complaint, Annex "A") 3.Respondent Pe, when he testified in 1984, said he was 60 years old; he is now therefore over 66 years old. He is a 'businessman and resident of Dadiangas, General Santos City (TSN, p. 3, June 20, 1984), doing business under the style, 'Dadiangas B.P. Trading (TSN, 144, June 22, 1984). In his sworn declaration dated July 18, 1983, filed with the assessor's office pursuant to P.D. No. 1612, he listed the following real properties and their market value, all situated in General Santos City, to wit (Exh. 11-Benzonan):

(a) 447 sq. m. residentialP 28,720.00 (b) 11.9980 hectares of agri. lotP 23,880.00 (c) 2.000 hectares of agri. lotP 40,000.00 (d) 2.000 hectares of agri. lotP 40,000.00 (e) 6,064 sq. m. of industrial lotP303,200.00 (f) Industrial buildingP434,130.00 (g) Industrial machineryP 96,000.00

On June 22, 1984, when Pe testified, he said that 'I own three (3) residential lots,' (TSN, p. 153, June 22, 1984) and that he and his wife own in Antique Province 'around twenty (20) hectares planted to coconut and sugarcane' (ibid., p. 145); he used to have 30 hectares of agricultural lands and 22 subdivision lots, which he sold to Norma Salvani and Carlos Salvani. (TSN, pp. 166-169, June 22, 1984); Exhs. 1, 1-A, 1-B, 1-C, 3, 6, 6-A-Benzonan)." (Rollo of G.R. No. 97973, pp. 17-19) In the light of the records of these cases, we rule that respondent Pe cannot repurchase the disputed property without doing violence to everything that CA No. 141 (as amended) stands for. We ruled in Simeon v. Pea, 36 SCRA 610, 617 [1970] through Chief Justice Claudio Teehankee, that: xxx xxx xxx "These findings of fact of the Court of Appeals that "(E)vidently, the reconveyance sought by the plaintiff (petitioner) is not in accordance with the purpose of the law, that is, 'to preserve and keep in the family of the homesteader that portion of public land which the State has gratuitously given to him'" and expressly found by it to "find justification from the evidence of record . . ." "Under the circumstances, the Court is constrained to agree with the Court of Appeals that petitioners' proposed repurchase of the property does not fall within the purpose, spirit and meaning of section 119 of the Public Land Act, authorizing redemption of the homestead from any vendee thereof." We reiterated this ruling in Vargas v. Court of Appeals, 91 SCRA 195, 200, [1979] viz: "As regards the case of Simeon v. Pea, petitioners ought to know that petitioner therein was not allowed to repurchase because the lower court found that his purpose was only speculative and for profit. In the present case, the Court of Appeals found that herein petitioners' purposes and motives are also speculative and for profit. "It might be well to note that the underlying principle of Section 119 of Commonwealth Act No. 141 is to give the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given to him as a reward for his labor in cleaning and cultivating it. (Simeon v. Pea, 36 SCRA 617). As found by the Court of Appeals, the motive of the petitioners in repurchasing the lots in question being one for speculation and profit, the same therefore does not fall within the purpose, spirit and meaning of said section." and in Santana et. al. v. Marias, 94 SCRA 853, 861-862 [1979] to wit:

"In Simeon v. Pea we analyzed the various cases previously decided, and arrived at the conclusion that the plain intent, the raison d' etre, of Section 119, C.A. No. 141 '. . . is to give the homesteader or patentee every chance to preserve for himself and his family the land that the state had gratuitously given to him as a reward for his labor in cleaning and cultivating it.' In the same breath, we agreed with the trial court, in that case, that it is in this sense that the provision of law in question becomes unqualified and unconditional. And in keeping with such reasons behind the passage of the law, its basic objective is to promote public policy, that is, to provide home and decent living for destitutes, aimed at promoting a class of independent small landholders which is the bulwark of peace and order." "As it was in Simeon v. Pea, respondent Marias' intention in exercising the right of repurchase 'is not for the purpose of preserving the same within the family fold,' but 'to dispose of it again for greater profit in violation of the law's policy and spirit.' The foregoing conclusions are supported by the trial court's findings of fact already cited, culled from evidence adduced. Thus respondent Marias was 71 years old and a widower at the time of the sale in 1956; that he was 78 when he testified on October 24, 1963 (or over 94 years old today if still alive); that . . . he was not living on the property when he sold the same but was residing in the poblacion attending to a hardware store, and that the property was no longer agricultural at the time of the sale, but was a residential and commercial lot in the midst of many subdivisions. The profit motivation behind the effort to repurchase was conclusively shown when the then plaintiff's counsel, in the case below, Atty. Loreto Castillo, in his presence, suggested to herein petitioners' counsel, Atty. Rafael Dinglasan '. . . to just add to the original price so the case would be settled.' Moreover, Atty. Castillo manifested in court that an amicable settlement was possible, for which reason he asked for time 'within which to settle the terms thereof and that 'the plaintiff . . . Mr. Marias, has manifested to the Court that if the defendants would be willing to pay the sum of One Peso and Fifty Centavos (P1.50) per square meter, he would be willing to accept the offer and dismiss the case." Our decisions were disregarded by the respondent court which chose to adopt a Court of Appeals ruling in Lim, et al. v. Cruz, et al., CA-G.R. No. 67422, November 25, 1983 that the motives of the homesteader in repurchasing the land are inconsequential" and that it does not matter even "when the obvious purpose is for selfish gain or personal aggrandizement." The other major issue is when to count the five-year period for the repurchase by respondent Pe whether from the date of the foreclosure sale or from the expiration of the one year period to redeem the foreclosed property. The respondent court ruled that the period of repurchase should be counted from the expiration of the one year period to redeem the foreclosed property. Since the one year period to redeem expired on January 24, 1979 and he filed Case No. 280 on October 4, 1983 to enforce his right to repurchase the disputed property, the Court of Appeals held that Pe exercised his right to repurchase within the five-year period provided by section 119 of CA 141 as amended.

The respondent court cited Belisario, et al., v. Intermediate Appellate Court, et al., 165 SCRA 101, 107 [1988] where we held: ". . . In addition, Section 119 of Commonwealth Act 141 provides that every conveyance of land acquired under the free patent or homestead patent provisions of the Public Land Act, when proper, shall be subject to repurchase by the applicant, his widow or legal heirs within the period of five years from the date of conveyance. The five-year period of redemption fixed in Section 119 of the Public Land Law of homestead sold at extrajudicial foreclosure begins to run from the day after the expiration of the one-year period of repurchase allowed in an extrajudicial foreclosure. (Manuel v. PNB, et al., 101 Phil. 968) Hence, petitioners still had five (5) years from July 22, 1972 (the expiration of the redemption period under Act 3135) within which to exercise their right to repurchase under the Public Land Act." As noted by the respondent court, the 1988 case of Belisario reversed the previous rulings of this Court enunciated in Monge, et al., v. Angeles, et al., 101 Phil. 563 [1957] and Tupas v. Damasco, et al., 132 SCRA 593 [1984] to the effect that the five year period of repurchase should be counted from the date of conveyance or foreclosure sale. The petitioners, however, urge that Belisario should only be applied prospectively or after 1988 since it established a new doctrine. We sustain the petitioners' position. It is undisputed that the subject lot was mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners on September 29, 1979. At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA 565 [1961]). The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

There may be special cases where weighty considerations of equity and social justice will warrant a retroactive application of doctrine to temper the harshness of statutory law as it applies to poor farmers or their widows and orphans. In the present petitions, however, we find no such equitable considerations. Not only did the private respondent apply for free agricultural land when he did not need it and he had no intentions of applying it to the noble purposes behind the law, he would now repurchase for only P327,995.00, the property purchased by the petitioners in good faith for P1,650,000.00 in 1979 and which, because of improvements and the appreciating value of land must be worth more than that amount now. The buyers in good faith from DBP had a right to rely on our rulings in Monge and Tupas when they purchased the property from DBP in 1979 or thirteen (13) years ago. Under the rulings in these two cases, the period to repurchase the disputed lot given to respondent Pe expired on June 18, 1982. He failed to exercise his right. His lost right cannot be revived by relying on the 1988 case of Belisario. The right of petitioners over the subject lot had already become vested as of that time and cannot be impaired by the retroactive application of the Belisario ruling. Considering our above findings, we find no need to resolve the other issues raised by the petitioners in their petitions. WHEREFORE, the questioned decision of the respondent court is hereby REVERSED and SET ASIDE. The complaint for repurchase under Section 119 of Commonwealth Act No. 141 as amended is DISMISSED. No pronouncement as to costs. G.R. No. 100210 April 1, 1998 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, respondents. MARTINEZ, J.: Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling that Subversion is the "main offense" in a charge of Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under P.D. No. 1866, as amended, and that, therefore, the said charge should be quashed in view of a previous charge of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending in another court? Stated differently, is the accused charged with the same offense in both cases, which would justify the dismissal of the second charge on the ground of double jeopardy? This is the pith issue presented before us in this appeal by certiorari interposed by the People under Rule 45 of the Revised Rules of Court, seeking a review of the decision 1 of the Court of Appeals (Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents." The record discloses the following antecedent facts:

As early as 1983, private respondent Antonio Tujan was charged with Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as amended, before the Regional Trial Court of Manila (Branch 45), National Capital Region, docketed as Criminal Case No. 64079. 2 As a consequence thereof, a warrant for his arrest was issued on July 29, 1983, 3 but it remained unserved as he could not be found. Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the basis of the warrant of arrest in the subversion case. 4 When arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live ammunition were found in his possession. 5 Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under Presidential Decree No. 1866, as amended, before the Regional Trial Court of Makati (Branch 148), docketed as Criminal Case No. 1789. The Information reads: That on or about the 5th day of June, 1990, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being a member of a communist party of the Philippines, and its front organization, did then and there willfully, unlawfully and feloniously have in his possession, control and custody, in furtherance of or incident to, or in connection with the crime of subversion, a special edition ARMSCOR PHILS. caliber .38 special revolver with Serial No. 1026387 and with six (6) live ammunitions, without first securing the necessary license or permit thereof from competent government authority. 6 The above Information recommended no bail for Antonio Tujan, which recommendation was approved by the trial court in an Order dated June 19, 1990. 7 The same order also directed the continued detention of Antonio Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Bago Bantay, Quezon City, while his case is pending. On June 26, 1990, Antonio Tujan, through counsel, filed a motion 8 invoking his right to a preliminary investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and praying that his arraignment be held in abeyance until the preliminary investigation is terminated. However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary investigation, his counsel withdrew the motion since he would file a motion to quash the Information, for which reason counsel requested a period of twenty (20) days to do so. This was granted by the trial court on that same day. 9 On July 16, 1990, Antonio Tujan did file the motion to quash 10 the Information in Criminal Case No. 1789 on the ground that he "has been previously in jeopardy of being convicted of the offense charged" in Criminal Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch 45). The said

ground is based on Sections 3 (h) and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends that "common crimes such as illegal possession of firearms and ammunition should actually be deemed absorbed in subversion," 11 citing the cases of Misolas vs. Panga, et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June 5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin prosecution" of "the earlier subversion case" and, therefore, he "is entitled to invoke the constitutional protection against double jeopardy." 12 The petitioner opposed 13 the motion to quash, arguing that Antonio Tujan does not stand in jeopardy of being convicted a second time because: (a) he has not even been arraigned in the subversion case, and (b) the offense charged against him in Criminal Case No. 64079 is for Subversion, punishable under Republic Act No. 1700; while the present case is for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion, punishable under a different law (Presidential Decree No. 1866). Moreover, petitioner contends that Antonio Tujan's reliance on the Misolas and Enrile cases "is misplaced." 14 Tujan merely relies on the dissenting opinions in the Misolas case. Also, the Enrile case which involved a complex crime of rebellion with murder is inapplicable to the instant case which is not a complex offense. Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for application in the present case because (illegal) possession of firearm and ammunition is not a necessary means of committing the offense of subversion, nor is subversion a necessary means of committing the crime of illegal possession of firearm and ammunition." 15 The trial court, in an order dated October 12, 1990, granted the motion to quash the Information in Criminal Case No. 1789, the dispositive portion of the order reading: WHEREFORE, the motion to quash the information is hereby GRANTED, but only in so far as the accused may be placed in jeopardy or in danger of being convicted or acquitted of the crime of Subversion and as a consequence the Information is hereby quashed and the case dismissed without prejudice to the filing of Illegal Possession of Firearm. SO ORDERED. 16 It is best to quote the disquisition of the respondent court in quashing the information and dismissing the case: xxx xxx xxx

In other words, the main offense the accused is being charged in this case is also Subversion considering that the alleged Illegal Possession of the Firearm and Ammunition is only in furtherance thereof. Now, subversion being a continuing offense as has been previously held by the Supreme Court, the fact that the accused has been previously charged of

Subversion before another court before the institution of this instant case is just a continuing offense of his former charge or that his acts constituting subversion is a continuation of the acts he committed before. The court therefore cannot subscribe to the position taken by the prosecution that this case is very different from the other case and that double jeopardy will attach in this particular case. This court agrees with the position taken by the defense that double jeopardy will attach to the accusation of subversion, punishable now under Republic Act 1700, as Rule 117 of the Rules of Court particularly Section 1 thereof, provides: Time to move to quash At anytime before entering his plea, the accused may move to quash the complaint or information.(la) In other words, there is no necessity that the accused should be arraigned first before he can move to quash the information. It is before he pleads which the accused did in this case. On the other submissions by the prosecution, that the possession of firearms and ammunitions is not a necessary means of committing the offense of subversion or vice versa, then if the court follows such argument, there could be no offense of Illegal Possession of Firearm and Ammunition in furtherance of Subversion, for even the prosecution admits also that in subversion which is an offense involving propaganda, counter propaganda, a battle of the hearts and mind of the people does not need the possession or use of firearms and ammunitions. The prosecution even admits and to quote: The defense of double jeopardy. while unquestionably available to the accused, had not been clearly shown to be invokable(sic) at this point in time. But the rule says otherwise as previously stated as provided for under Section 1 of Rule 117 of the Rules of Court. Thus, if ever the accused is caught in possession of a firearm and ammunition which is separate and distinct from the crime of subversion and is not a necessary ingredient thereof and the court believed so, the prosecution will have to file another information as they may wish. The court therefore has to grant the motion to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering that the only offense to which the accused in this case may be placed in jeopardy is Subversion and not Illegal Possession of Firearms and Ammunitions. The prosecution may file any information as warranted within ten (10) days from receipt of this order otherwise the court will order the release of the accused, unless he is in custody for some other offense. 17 (Emphasis ours) Petitioner's motion for reconsideration 18 was also denied in an order dated

December 28, 1990. 19 The petitioner elevated the case to the Court of Appeals through a petition for certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate court found that the trial court did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in quashing the questioned Information. In dismissing the petition, the appellate court, in its decision dated May 27, 1991, basically reiterated the aforequoted ruling of the trial court. Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is not in accord with the law and applicable jurisprudence; and (2) it was deprived of due process to prosecute and prove its case against private respondent Antonio Tujan in Criminal Case No. 1789. We agree with the petitioner. The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866 filed against private respondent Antonio Tujan. It ruled: The foregoing information (for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion) filed before the Makati court shows that the main case is subversion considering that there is an allegation that the alleged illegal possession of firearms was made "in furtherance of or incident to, or in connection with the crime of subversion." Also, the information alleged likewise that the accused is a member of a communist party of the Philippines and its front organization. Basically, the information refers to the crime of Subversion qualified by Illegal Possession of Firearms. . . . 20 The ruling of the Court of Appeals is erroneous. Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal Case No. 1789 before the Regional Trial Court of Makati (Branch 148), provides as follows: Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearms, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. (Emphasis ours) The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph of Section 1, the mere possession of an unlicensed firearm or ammunition is the crime itself which carries the penalty of reclusion temporal in its maximum period to reclusion perpetua. The third paragraph of the same Section makes the use of said firearm and ammunition "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion" a circumstance to increase the penalty to death. Thus, the allegation in the Information in Criminal Case No. 1789 that the unlicensed firearm found in the possession of Antonio Tujan, "a member of the communist party of the Philippines and its front organization," was used "in furtherance of or incident to, or in connection with the crime of subversion" does not charge him with the separate and distinct crime of Subversion in the same Information, but simply describes the mode or manner by which the violation of Section 1 of P.D. No. 1866 was committed 21 so as to qualify the penalty to death. There is, therefore, only one offense charged in the questioned information, that is, the illegal possession of firearm and ammunition, qualified by its being used in furtherance of subversion. 22 There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees categorically or by implication that the crimes of rebellion, insurrection or subversion are the very acts that are being penalized. This is clear from the title of the law itself which boldly indicates the specific acts penalized under it: CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. (Emphasis ours) On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch 45), is based on a different law, that is, Republic Act No. 1700, as amended. Section 3 thereof penalizes any person who "knowingly, willfully and by overt act affiliates with, becomes or remains a member of a subversive association or organization . . ." Section 4 of said law further penalizes "such member [of the Communist Party of the Philippines and/or its successor or of any subversive association] (who) takes up arms against the Government." Thus, in the

present case, private respondent Antonio Tujan could be charged either under P.D. No. 1866 or R.A. No. 1700, 23 or both. This leads us to the issue of whether or not private respondent Antonio Tujan was placed in double jeopardy with the filing of the second Information for Illegal Possession of Firearm and Ammunition in Furtherance of Subversion. We rule in the negative. Article III of the Constitution provides: Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. (Emphasis ours) Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court states: Sec. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. xxx xxx xxx

The right of an accused against double jeopardy is a matter which he may raise in a motion to quash to defeat a subsequent prosecution for the same offense. The pertinent provision of Rule 117 of the Revised Rules of Court provides: Sec. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: xxx xxx xxx

(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the offense charged. (2a) (Emphasis ours) In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must have obtained in the first criminal action: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; 24 and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. 25

Suffice it to say that in the present case, private respondent's motion to quash filed in the trial court did not actually raise the issue of double jeopardy simply because it had not arisen yet. It is noteworthy that the private respondent has not even been arraigned in the first criminal action for subversion. Besides, as earlier discussed, the two criminal charges against private respondent are not of the same offense as required by Section 21, Article III of the Constitution. It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in accordance with the law and jurisprudence and thus should be reversed. While we hold that both the subversion charge under R.A. No. 1700, as amended, and the one for illegal possession of firearm and ammunition in furtherance of subversion under P.D. No. 1866, as amended, can co-exist, the subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally repealing R.A. No. 1700, as amended, has substantially changed the complexion of the present case, inasmuch as the said repealing law being favorable to the accused-private respondent, who is not a habitual delinquent, should be given retroactive effect. 26 Although this legal effect of R.A. No. 7636 on private-respondent's case has never been raised as an issue by the parties obviously because the said law came out only several months after the questioned decision of the Court of Appeals was promulgated and while the present petition is pending with this Court we should nonetheless fulfill our duty as a court of justice by applying the law to whomsoever is benefited by it regardless of whether or not the accused or any party has sought the application of the beneficent provisions of the repealing law. 27 That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond question. The repeal by said law of R.A. No. 1700, as amended, was categorical, definite and absolute. There was no saving clause in the repeal. The legislative intent of totally abrogating the old anti-subversion law is clear. Thus, it would be illogical for the trial courts to try and sentence the accusedprivate respondent for an offense that no longer exists. 28 As early as 1935, we ruled in People vs. Tamayo: 29 There is no question that at common law and in America a much more favorable attitude towards the accused exists relative to statutes that have been repealed than has been adopted here. Our rule is more in conformity with the Spanish doctrine, but even in Spain, where the offense ceases to be criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours) Where, as here, the repeal of a penal law is total and absolute and the act with was penalized by a prior law ceases to be criminal under the new law, the previous offense is obliterated. 30 It is a recognized rule in this jurisdiction that a total repeal deprives the courts of jurisdiction to try, convict and sentence

persons charged with violation of the old law prior to the repeal. 31 With the enactment of R.A. No. 7636, the charge of subversion against the accused-private respondent has no more legal basis and should be dismissed. As regards the other charge of illegal possession of firearm and ammunition, qualified by subversion, this charge should be amended to simple illegal possession of firearm and ammunition since, as earlier discussed, subversion is no longer a crime. Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable under Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as amended, by eliminating the provision in said P.D. that if the unlicensed firearm is used in furtherance of subversion, the penalty of death shall he imposed. 32 Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal possession of firearm (.38 caliber) is now reduced to prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00). 33 The reduced penalty of imprisonment which is four (4) years, two (2) months and one (1) day to six (6) years entitles the accused-private respondent to bail. Considering, however, that the accused-private respondent has been detained since his arrest on June 5, 1990 up to the present (as far as our record has shown), or more than seven (7) years now, his immediate release is in order. This is so because even if he were convicted for illegal possession of firearm and ammunition, the length of his detention while his case is pending has already exceeded the penalty prescribed by the new law. WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990 and December 28, 1990 of the Regional Trial Court of Makati (Branch 148), National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and SET ASIDE. The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED. The other Information for illegal possession of firearm and ammunition in furtherance of subversion against the same accused in Criminal Case No. 1789 of the Regional Trial Court of Makati, Branch 148, is DEEMED AMENDED to Simple Illegal Possession of Firearm and Ammunition. The accused-appellant is hereby ordered RELEASED IMMEDIATELY from detention for the reason stated above, unless he is being detained for any other offense. This decision is IMMEDIATELY EXECUTORY. No pronouncement as to costs. SO ORDERED. G.R. No. 138137 March 8, 2001 PERLA S. ZULUETA, petitioner, vs. ASIA BREWERY, INC., respondent. 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 Decision1 of the Court of Appeals (CA) in CA-GR SP No. 45020; as well as the February 23, 1999 Resolution2 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. 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. 94-2110 (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. 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. Ruling of the Court of Appeals

Setting aside the trial court's assailed Orders which consolidated the Iloilo and the Makati cases, the CA ruled in this wise: "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 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 The Court's Ruling The Petition is meritorious. 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 90day 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 forumshopping, 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. Caete 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 sixty-day reglementary period; it likewise failed to observe the requirements of nonforum 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. G.R. No. 87193 June 23, 1989 JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J.L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent. CRUZ, J.: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for

reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code.

Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN:

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours,

WILLIAM L. WHITTAKER Clerk by: (Sgd.)

ARACELI V. BAREN Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law

principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the

Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours,

for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected ViceGovernor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. G.R. No. L-17905 January 27, 1923 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JUAN MORAN, FRUCTUOSO CANSINO, and HILARIO ODA, defendants-appellants. Pedro Ma. Sison for appellants. Attorney-General Villa-Real for appellee. ARAULLO, C. J.: On March 31, 1922, the decision of this court in the present case, affirming the judgment of the Court of First Instance of Pangasinan, was published, but the term of imprisonment by the said court upon the accused, for a violation of the Election Law, defined and punished in section 2639 of the Administrative Code, was increased to six months from which judgment the present appeal was taken by the accused. The accused, after asking for a reconsideration of the said decision and a rehearing and pending the resolution on the said petition, filed a special motion on May 2d of this year, alleging that the crime complained of had prescribed under the provision of section 71 of Act No. 3030, enacted by the Legislature on March 9, 1922, and praying that they be absolved from the complaint. Upon this motion the Attorney-General was heard, having filed an answer and a supplemental answer, with the corresponding arguments, opposing the same, as well as the accused who filed their reply thereto and supplementary replies, both parties stating at length the reasons and legal grounds for their respective contentions. While it is a rule of general application that unless the defense of prescription is pleaded in the trial court, it will be deemed to have been waived and cannot later be raised, yet this rule is not of absolute application in criminal cases, for if the prescription of the crime, as well as of the penalty whereby criminal responsibility is extinguished, may, as is the case here with regard to the former, be provided by statute after the termination of all the proceedings in the trial court, as well as in the appellate court, and when the case has already been submitted for discussion and is awaiting only the final judgment; and if the prescription of the crime is but the extinguishment of the right of the State to prosecute and punish the culprit, it is beyond question that, once the State has lost or waived such right, the accused may, at any stage of the proceeding, ask and move that the same be dismissed and that he be absolved from the complaint. And not only that, the right to prosecute and punish the criminal having been lost by the prescription of the crime expressly provided by the statute, the State itself, the Government through the proper court, is in duty

bound to make a pronouncement to that effect. Therefore, as on March 9th of this year, 1922, when Act No. 3030 went into effect, providing in its section 71 that offense resulting from the violations thereof shall prescribe one year after their commission, the accused and the Attorney-General had already filed their respective briefs in this court for the prosecution of the appeal taken from the judgment of the court below, and the hearing of the case had already been held, this court itself, without the necessity of any motion of the accused, or of the Attorney-General, should have declared the crime in question to have prescribed, in view of the provision of said section. Consequently, as this court had not up to that time made such pronouncement, the accused are perfectly justified in asking, as they have done in their motion of May 2d of this year, that the offense having prescribed, they be absolved from the complaint. This duty is imperative upon the courts of justice at any moment that the offense appears to have prescribed under the provision of the law. With particular reference to the present case, this conclusion is necessarily reached from the letter as well as the spirit of the provisions of the Penal Code relative to prescription, and from that of section 71 of the aforesaid Act No. 3030, for once the offense or the penalty has prescribed, the State has no right to prosecute the offender, or to punish him, and if he has already been punished, it has no right to continue holding him subject to its action by the imposition of the penalty. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony or misdemeanor, even if they may be serving sentence, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty. That such is the duty of the courts of justice and has been so recognized by this court, is shown by the decision in the case of United States vs. Rama, R. G. No. 16247,1 for the crime of murder of four persons, committed in the month of July, 1902, in the province of Cebu, in which one of the accused was sentenced by the Court of First Instance of the said province to death and the other two to life imprisonment. That case was brought to this court on appeal and, after the filing of the respective briefs of the accused and the AttorneyGeneral a hearing was had. No allegations was made as to the prescription of the crime, yet this court rendered a decision (not yet published in the Official Gazette) wherein, after finding that two crimes of murder and two of homicide had been committed and that seventeen years had already elapsed from the commission of the latter to the institution of the judicial proceeding for the investigation and punishment thereof, that is, more than the fifteen years fixed by lay for the prescription of the crime of homicide, this court held that the said two crimes of homicide had prescribed and the criminal responsibility of the three accused for the said crimes extinguished, convicting the accused only of the two crimes of murder. There is, therefore, on reason whatsoever why the allegation of prescription made by the accused in their motion of the 2d of May of this year cannot legally be considered; on the contrary, said motion must be decided before the petition for the reconsideration of the decision published on the 31st of March of last year, and for a rehearing of the case, or, to be more exact, the said petition must be ignored, for the resolution of the aforesaid

motion, if favorable to the accused, would put an end to the proceeding right at its present stage. The first question to be decided, in connection with the contention of the accused, is whether or not the prescription provided in section 71 of Act No. 3030 refers only to that Act and not to any other, for said section 71 says: "Offenses resulting from violations of this Act shall prescribe one year after their commission," and section 72 adds: "This Act shall take effect on its approval." It is enough to take into consideration the fact that Act No. 3030, is, as its title indicates, amendatory to several sections and parts of sections of chapter 18 of the Administrative Code, known as the Election Law, and of chapter 65 on penalties for the violation of various administrative laws, among them, those of the Election Law itself, included in said chapter 18 of the Administrative Code, in order to understand that when the Legislature used the words "This Act," that is, Act No. 3030, it referred, necessarily, to the Election Law included in various sections and provisions of the aforesaid two chapters of the abovementioned Code, that is, the Election Law prior to Act No. 3030, under which the herein accused were convicted. One needs but examine one by one all the sections of said Act No. 3030, each of which declares the sense in which each of the sections included in said chapters in amended, in order to convince himself that said Act No. 3030 is similar to the law that preceded it, with the amendments and some additions thereto. If the Legislature had passed and enacted a new Election Law different from that contained in the abovementioned chapters of the Administrative Code, then it may be said that the phrase "This Act" can in no way refer to the prior Election Law. Furthermore, if the offenses resulting from the violations of the Election Law, the provisions of which are contained in the aforesaid chapters of the Administrative Code, are the same offenses provided for in Act No. 3030, though with some modifications in the details as to some of them and with increase in the penalty, it cannot be denied that when the Legislature used the words "This Act" in section 71 of Act No. 3030, wherein it is provided that said offenses shall prescribe one year after their commission, it necessarily referred to offenses resulting from the violations of the former Election Law, as amended by said Act No. 3030. Besides, one of the objects of this Act, as its title indicates, is to make more effective the provisions and the purposes of the former Law contained in the Administrative Code; so that Act No. 3030 rather than being an integral part of the former election law is in conjunction with the latter the only Election Law in force; and any other interpretation to the contrary of the phrase "This Act" cannot, in our opinion, be accepted as good logic and in accordance with the principles of sound reasoning. It is true that in the next section, 72, it is provided that said Act No. 3030 shall take effect on the date of its approval, which took place on March 9, 1922, but the meaning of such an expression in connection with prescription is that prescription can be invoked from that date, as was done by the accused, and not that such provision may have a retroactive effect from that same date. In this connection, there arises the second question as to whether or not the

provision of article 22 of the Penal Code above cited, declaring the retroactivity of penal laws in so far as they are favorable to the defendant in a criminal action for a felony or misdemeanor, is applicable to crimes penalized by special laws, as does Act No. 3030, account being taken of the fact that, under article 7 of the Penal Code, offenses punishable under special laws are not subject to the provisions of the said code. Several decisions have been rendered by this court on this question in which the distinguished members of this court hold opposite views. Among those may be cited the case of United States vs. Cuna (12 Phil., 241), which is cited in a later case, United States vs. Lao Lock Hing (14 Phil., 86), in which case this court did not lay down a definite rule, but expressly reserved its opinion as to whether or not article 22 of the Penal Code above referred to was applicable. And it was so recognized by the Supreme Court of the United States, in an appeal taken by writ of error by the accused, Ong Chang Wing (40 Phil., 1046), said high court having limited itself to declaring that the accused, not having been convicted by this court of an offense which was not punishable when committed, and this court having held only that the right to impose the penalty prescribed by the Penal Code of the Philippines had not been lost by the subsequent statute, Act No. 1757, of the Philippine Commission, the accused had not been denied due process of law, for as the Supreme Court of the United States says in its decision, the duty of that court in that case was to determine whether or not the judgment of this court amounted to a denial of due process of law. Therefore, the decision rendered in those two cases cannot be invoked in the one now before us. In the case of United States vs. Lao Lock Hing (14 Phil., 86) and United States vs. Calaguas (14 Phil., 739), cited also in support of the contrary opinion, as the offenses therein involved were penalized by special laws, that is, by the Opium Law, in the former, and by the Law of Police and Railroad Preservation, in the latter, this court held, as it could not have done otherwise, that, under article 7 of the Penal Code, the provisions of the said Code were not applicable to those offenses, inasmuch as said offenses were penalized by the said law which prescribed a special and definite penalty for said offenses, but in those cases said article 7 of the Penal Code was not interpreted in connection with the application of article 22 of the same Code, providing for the retroactivity of penal laws favorable to persons accused of a felony or misdemeanor. Wherefore neither can the holding of this court in those cases have any application to the one before us. The case in which this court plainly and definitely decided the question under consideration is that of United States vs. Parrone (24 Phil., 29). There the said accused was charged with the crime of falsification of a cedula certificate, definite and punished in section 55 of Act No. 1189 of the Philippine Commission, but before the conviction of the accused, said Act was amended by Act No. 2126 of the Philippine Legislature, which prescribed a lesser penalty than the previous Act, and this court, after a careful perusal of all its decisions dealing with that question, as above indicated, and a luminous and exhaustive discussion on the interpretation of article 7 of the same Code in connection with the retroactivity of the penalty, in so far as it is favorable to the accused,

held, upon the appeal taken by the said accused from the judgment of the court below, that, under the provisions of article 22 of the Penal Code, the penalty provided in Act No. 2126, which was later than Act No. 1189, was the proper penalty to be imposed upon the accused in that case. In the course of that decision, the court said: Considering the provision of article 7 of the Penal Code, are the provisions of article 22 of the same Code applicable to the penal laws of the Philippine Islands other than the provisions of the Penal Code? Article 22 is found in chapter 1 of title 3 of the Penal Code. Said chapter is entitled "Penalties in General". Article 21 of said title and chapter provides that "no felony or misdemeanor shall be punishable by any penalty not prescribed by law prior to its commission." This article is general in its provisions and in effect prohibits the Government from punishing any person for any felony or misdemeanor with any penalty which has not been prescribed by the law. It (art. 21), therefore, can have no application to any of the provisions of the Penal Code for the reason that for every felony or misdemeanor defined in the Penal Code a penalty has been prescribed. The provisions of article 21 can only be invoked, therefore, when a person is being tried for a felony or a misdemeanor for which no penalty has been prescribed by law. Article 21 is not a penal provision. It neither defines a crime nor provides a punishment for one. It has simply announced the policy of the Government with reference to the punishment of alleged criminal acts. It is a guaranty to the citizen of the State that no act of his will be considered criminal until after the Government has made it so by law and has provided a penalty. It (art. 21) is a declaration that no person shall be subject to criminal prosecution for any act of his until after the State has defined the misdemeanor or crime and has fixed a penalty therefor. The doctrine announcement by this section has been considered of so much importance to the citizen of a State that many of the States of the Union have been pleased to include its precepts in their constitutions or have so declared by express provision of law. Article 22 provides that "Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony or misdemeanor, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving same." This provision clearly has no direct application to the provisions of the Penal Code. Its (art. 22) application to the Penal Code can only be invoked where some former or subsequent law is under consideration. It must necessary relate (1) to penal laws existing prior to the Penal Code; or (2) to laws enacted subsequent to the Penal Code, in which the penalty was more favorable to the accused. Rule 80, Ley Provisional para la aplicacion de las disposiciones del Codigo Penal. Under the provisions of said article 22, if a crime had been committed prior to the date of the Penal Code the punishment for which was more favorable to the accused than the provisions of the Penal Code, it is believed that the accused might invoke the provisions of said article (22) even though he was not placed upon trial until after the Penal Code went into effect. (U. S. vs. Cuna 2). So also if by an amendment to the Penal Code or by a later special law the punishment for an act was made less severe than by

the provisions of the Penal Code, then the accused person might invoke the provisions of said article. It appears to be clear, then, that article 22 of the Penal Code can only be invoked when the provisions of some other penal law than the provisions of the Penal Code are under consideration. In other words, the provisions of article 22 can only be invoked with reference to some other penal law. It has no application to the provisions of the Penal Code except in relation with some other law. It is not believed, therefore, that the Legislature in enacting article 7 of the Penal Code intended to provide that article 22 should not be applicable to special laws. There can be no doubt whatsoever that such was the intention of the legislature, in view of the doctrine laid down by the supreme court of Spain, whose authority as regards the application and interpretation of the provisions of the Penal Code of the Philippines is unquestionable, because said Code is the same as that of Spain. In two cases (decisions of July 13, 1889 and April 26, 1892), among others decided by that court, in which article 22 of the Penal Code was alleged to have been violated by the imposition of the penalty of prison correccional prescribed by the said Code, instead of prison menor, prescribed by article 168 of the Election Law of August 30, 1870, upon the accused therein, who were found guilty of a violation of the said Election Law, which, was therefore, a special law in force prior to the said Penal Code of that same year, the said Code having substitute the penalty of prision correccional for that of prision menor, said court held that the appeal was not well taken on the ground that the penalty of prision correccional had taken the place of that of prision menor prescribed by the Election Law, and while the duration of both penalties was the same, the correctional penalty was lighter and more advantageous and favorable to the accused than prision menor, as it was of a less grave nature; so that in those two cases, the supreme court of Spain not only applied the provisions of the Penal Code to a special law, but also gave retroactive effect to said provisions on account of being more favorable to the therein accused, in accordance with the precept of article 22 of the Penal Code. And here we have a most complete, clear and satisfactory solution of whatever doubt might have arisen as to the interpretation of articles 7 and 22 of the Penal Code aforesaid. It cannot be maintained that said article 22 of the Penal Code refers only to penalties and is not applicable to appeals and proceedings, because the prescription of the crime is intimately connected with that of the penalty, for the length of time fixed by the law for the prescription depends upon the gravity of the offense, as may be seen from Title VI of Book I of the Penal Code, containing, as its heading indicates, "General Provisions Regarding Felonies and Misdemeanors, the Persons Liable and the Penalties," without distinguishing between the penalties and the extinguishing of the criminal responsibility dealt with in said Title VI of said Book, which title comes next to Title V, treating of the penalties incurred by those who evade service of sentence and those who, while serving sentence, or after having been convicted by a final judgment not yet served, commit some other crime. And aside from this intimate connection between the prescription of the crime and that of the penalty, a statute declaring the prescription of the crime has no other object and purpose than to prevent or annul the prosecution of the

offender and, in the last analysis, the imposition of the penalty. Moreover, if the provisions relative to the prescription of ownership and to the prescription of actions in civil matters are part of the civil law, it cannot be denied that the provisions relative to the prescription of crimes and of penalties are penal laws or form part thereof. With regard to the question whether prescription must be considered as a matter of procedural or formal law, or as a substantive law for the purpose of the retroactivity of laws, we must state, with reference to the present case, that the prescription provided in section 71 of Act No. 3030 is of the nature both of a substantive law, in so far as it gives a person accused of any of the crimes therein referred to, the right not to be prosecuted nor punished after the lapse of the period of one year from the commission of said crimes, within which the criminal action must be commenced, and of a procedural or adjective law in so far as it fixes the time within which such action must necessarily be commenced in order that the prosecution may be legal and the proper penalty may lawfully be imposed. but however said provision may be considered, the same must have a retroactive effect, as will be seen later on. Therefore, as the instant case involves two special laws of the Philippine Legislature, to wit, the Election Law contained in the above-mentioned chapters of the Administrative Code, and Act No. 3030 which amended and modified the former, it is evident that the provision declaring that offenses resulting from the violations of said Act shall prescribe one year after their commission must have retroactive effect, the same being favorable to the accused. This, however, is objected to, although it is based on a general principle frequently applied by many courts of the American Union, and in support of the objection, several decisions of the said courts and a doctrine concerning the matter found in Corpus Juris (volume 16, p. 222) and in Ruling Case Law are cited, wherein it is established that laws fixing a period of prescription are not applicable to crimes previously committed, unless by their terms they are clearly retroactive or contain an express provisions to that effect. We need not discuss each and every one of the said cases, it being sufficient for our purpose to take up one of them, namely, that of Martin vs. State ([1859], 24 Tex., 62). There the Supreme Court of Texas held that as regards crimes and misdemeanors, prescription had no retroactive effect and that the Statute of Limitations enacted in 1854 could not have the effect of barring a criminal action instituted within two years after the enactment of said Act, provided that no period of prescription was fixed in a former law for the crime in question, that is to say, that prescription cannot be invoked as a bar to a criminal action for an offense like that of falsification involved in that case, where said action was commenced under a statute authorizing it and in the old law penalizing that crime no period was fixed for the prescription thereof. As can be seen from a reading of the context of the decision in the aforesaid case and the opinion of the writer thereof, said doctrine was announced without taking into account the difference between the rule governing prescription in criminal procedure and that applicable to civil actions, but on the contrary,

application was made only of the latter; hence the holding that a special provisions as to prescription was necessary in the later statute to give it a retroactive effect. It should be noted, however, that the Chief Justice of that Supreme Court voted vigorously against the said decision, stating in a well-reasoned dissenting opinion the following: I . . . am of opinion, that the limitation prescribe to prosecution applies as well to prosecutions for offenses, committed before the passage of the statute, as afterwards; and that, as the words of the statute plainly import, the limitation commences to run from the time of the "commission of the offense," whether that was before or after its passage. The statute makes no distinction, as respects the limitation; it makes no exception, from its provision, of offenses previously committed; and I know of no principle, or rule of construction, which will authorize the court to engraft an exception upon the statute. It is a statute relating to the remedy, and being enacted for the benefit of persons accused, is not an ex post facto law. The constitutional inhibition of the enactment of retroactive laws, and laws impairing the obligation of contracts, has no application to penal statutes. Retroactive criminal laws, which are forbidden, are those which come under the denomination of ex post facto laws. There is nothing to prevent statutes, respecting crimes, from being restrospective, provided they do not come under that denomination. It is an acknowledged general rule, in the construction of statutes, that they will not be construed to have a restrospective operation so as to destroy or impair rights of property, or of action, unless the legislature have plainly expressed such to be their intention. But laws which affect the remedy merely are not held to be within the rule or the inhibition against retrospective laws, unless the remedy be entirely taken away, or so restricted, as to impair the right. Nor, as I conceive, do statutes relating to the punishment of offenses come within the rule of construction, or the constitutional inhibition, though their effect should be wholly to defeat a prosecution. On the contrary, laws respecting crimes, whether they relate to the remedy merely, or to the offense, are, I think, always construed to relate to past, as well as future offenses, where their operation is in any wise beneficial to the accused; unless the legislature have plainly declared that they are not to receive such a construction. To give such effect to laws respecting crimes and punishments, is not to render them retrospective, or retroactive laws, in the sense of the constitutional inhibition. These terms have no application to such laws, but relate exclusively to laws affecting civil rights. (De Cordova vs. City of Galveston, 4 Tex., 470.) I do not think the reservation contained in the 81st section of the act was intended to have, or should be construed to have, any effect upon the limitation contained in the 75th section. That section was intended only to prevent repeals by implication, and to enforce the observance of the rule, which would have applied on general principles, without its enactment, that where the act mitigates the punishment, the milder penalty should be imposed. To hold it to apply to the limitation prescribed for prosecution by the

act, would be to except all offenses committed before the passage of the act, from the operation of the periods of limitation therein contained, and to hold that those offenses would never become barred under its provisions. I cannot think that such was the intention of the legislature. There may be differences of opinion, respecting the policy of prescribing so short periods of limitation, to prosecution for high crimes. But that was a question for the law-making power; and I can see no reason why the legislature should have intended the limitation to apply to future, and not to pas, offense. The same reasons, and the same policy, which dictated that the prosecution should be commenced within a prescribed period, after the offense was committed, would seem to apply equally to offenses committed before, as to those committed after the passage of the statute. Entertaining these views, I could not give my assent to the imposition of the pains and penalties of the law, where the prosecution had not been commenced until after the expiration of the time within which the legislature have positively enacted that the offense "shall be prosecuted," or be forever barred. Furthermore, Mr. Wharton, cited in one paragraph of the said dissenting opinion, in his work entitled Criminal Pleading and Practice, 9th edition, 1889, says that, as a general rule, the laws of prescription of actions apply as well to crimes committed before the enactment, as afterwards, and speaking of the rule to be applied to the prescription of actions and the interpretation of the laws on that subject, he says in section 316, page 215, of said book the following: We should at first observe that a mistake is sometimes made in applying to statute of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, the is no intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of these views, it

must be remembered that delay in instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to exact vigilant activity from its subaltern, and to secure for criminal trials the best evidence that can be obtained. But even if the rule generally and frequently applied by many courts of the American Union and the doctrine laid down by them were those announced in the above-mentioned paragraphs of the Corpus Juris and the Ruling Case Law, the precept of article 22 of the Penal Code being clear and unmistakable, according to which, penal laws have retroactive effect in so far as they are favorable to persons accused of a felony or misdemeanor, the courts of justice of these Islands cannot, and must not, make any application of the said rule and doctrine, but must, on the contrary, abide by the said precept and comply with it and carry it into effect, as hereinbefore stated, although no petition to that effect is made by the accused that may be favored by those laws. And a provision for the retroactivity of penal laws having, as it has, been made in the said article in the terms already mentioned, it is evidently that when the Philippine Legislature, the majority of whose members are also members of the Philippine Bar, and, therefore, were aware of this legal provision, drew section 71 of the Election Law, Act No. 3030, to the effect that the offenses resulting from the violations of the said law prescribe one year after their commission, it ought to have known that it was not necessary for it to say that said provision was to have retroactive effect in so far as it was favorable to the accused, inasmuch as such provision had already expressly been made in article 22 of the Penal Code, which was applicable not only to the prescription therein provided when the same might be favorable to persons accused of those crimes, but also to every penal law the retroactivity of which might be favorable to persons accused of a felony or misdemeanor. And, this is the best and most conclusive proof that in making the provision in section 71 aforecited, the Legislature intended that same be given a retroactive effect, because the members thereof could not ignore the law. From all of which it also necessarily follows that, if that doctrine established by many courts of the metropolis is to be applied in the instant case, it must be by saying that the same is useless or that it was complied with in so far as the giving of a retroactive effect to the said prescription was concerned, because that provision regarding retroactivity has already been expressly made in article 22 of the Penal Code, and, therefore, it is of no importance that in the former Election Law, that in, the amended law, no provisions was made regarding prescription to give immediate and full effect to the retroactivity provided in section 71 of Act No. 3030. The provisions of article 22 of the Penal Code, declaring the retroactivity of laws favorable to persons accused of a felony or misdemeanor, is to be deemed as if also expressly made in any new law at the time of its enactment, when said law is a penal law, or one of a penal character, such as the prescription contained in section 71 of Act No. 3030 here in question, which is of that nature, as above stated, and there is no necessity of making in that law any provisions to that same effect. And this is

the reason why in the case of Pardo de Tavera vs. Garcia Valdez, one of the first cases in the Philippine Jurisprudence (1 Phil., 468) in which, the question, among others, was raised whether the defendant, who was accused of grave insult defined and punished in paragraph 1, article 458, of the Penal Code, should be punished under said article, or under the provisions of Act No. 277, which is the Libel Law and went into effect after the publication of the libelous article and the institution of the criminal action, the court held, as stated in the syllabus, that: "The general rule that penal laws shall be retroactive in so far as they favor the accused has no application where the later law is expressly made inapplicable to pending actions or existing cause of action," which clearly means that in order for a penal statute favorable to the accused to have a retroactive effect, it is not necessary that it be so expressly provided in the statues, or, to put it in another way, that the provision declaring the retroactivity be repeated therein, but that if the Legislature intends it not to have a retroactive effect, it should expressly so state in the same statute. And the reason for it is obvious. For it being the general rule, according to article 22 of the Penal Code, that penal laws have retroactive effect in so far as they favor the accused, said general rule applies to all laws that may be enacted in the future, and if the Legislature intends to make an exception to the said rule, it should expressly say so. Now, the eminent professor of International Law, Mr. Fiore, in his work on the Irretroactivity and Interpretation of Statutes, which is termed by various eminent jurists "a work full of juridical science," after recognizing as a rule universally accepted by the courts and expressly sanctioned by most of modern legislation that no penal law can have any retroactive effect, that is, that no action or omission shall be held to be a crime, nor its author punished, except by virtue of a law in force at the time the act was committed, advocates the retroactivity of a penal law favorable to the offender, not as a right of the latter, but founded on the very principles on which the right of the State to punish and the combination of the penalty are based, and regards it not as an exception based on political consideration, but as a rule founded on principles of strict justice. The same author, on studying the question that may arise in case the new land should have changed the rules regarding prescription, that is to say, the retroactivity of the law as to prescription, says: The modifications as to prescription introduced by the new law may affect the penal action or the penalty itself. With respect to the former, it can be imagined that the new law has modified the rules as to the applicability or inapplicability of the prescription to a given crime, or the necessary conditions for its effectiveness, or, finally, the time and period when it will have effect. The authors who had studied this question have reached different conclusions, because some have considered prescription as a law of procedure or of form, while others have regarded it as a substantive law, thereby admitting, therefore, the principle of vested right on the part of the offender.

Those who have considered the statutes of limitations as of a formal or remedial nature have maintained the opinion that the new law must always be applied in all cases of prescription where the period was already running at the time of the enactment of the new law on the ground that all procedural laws must be deemed retroactive by nature. Against this theory, however, it has been said that even admitting the principle enunciated, the truth is that the culprit cannot be placed in a worse situation, as would be the case if that theory is adopted, for although the prescription begun under the former law, fixing a shorter period, might have been completed, he would be subject to criminal action under the new law prescribing a longer term, even if the provisions of the latter, concerning the substance of the penal action, were not in force at the time of the commission of the crime. Again, setting aside the theory of vested right on the part of the accused, as we have already done (for we cannot admit any vested right on the part of a private individual as against that which is considered by the sovereign power as indispensable for maintaining the juridical order), it can, however, be maintained that the application of the new law about the prescription of the criminal action, when said law has extended the time of the prescription, is tantamount to giving that penal law a retroactive effect, as regards the very substance of punishment, thus prejudicing the offender and admitting, as to him, a right to punish, which, on account of the longer period fixed in the new law, cannot be considered as based on any law in force and already promulgated at the time of the commission of the crime. On the other hand, those who have considered prescription as a substantive law hold that the old law should always be applied, the principal reason adduced by them in support of this opinion being that the accused must at all events suffer the consequences of the situation created by himself by committing the crime. Against this opinion, it has been held, however, that the consideration of public policy, which naturally prevails in matters of prescription, constitutes an obstacle to the invariable application of the old law, for if the new law is less severe as regards prescription, the result would be that the culprit would be subject to the more severe law, which has been modified in harmony with the more modern criteria sanctioned by the new law as more in consonance with justice. xxx xxx xxx

To our mind, in accordance with the principles underlying all the foregoing theories regarding the retroactivity of a less severe penal law, it must be admitted that also when the question is one of prescription must the new law be considered retroactive if it is more favorable to the accused than the former law, and that contrariwise it should not be so considered, if it is found to be more prejudicial. Although we are maintaining this opinion, we do not thereby accept the unjustified theory above set forth of those who believe that there must be admitted here the supposed vested right on the part of the offender, for we have already stated the reason why no such vested right can be recognized as against the penalty provided by law. On the contrary, we admit this theory, but founded on the principles of justice itself upon which the right to punish, considered as a supreme right of sovereignty, rests.

In fact, where the new law has shortened the time of prescription or established easier conditions for its effectiveness with respect to a given crime, it is clear that the reduction of the period made in the new law implies an acknowledgment on the part of the sovereign power that the greater severity of the provision of the former statute relative to the substance of the criminal action is unjust. Consequently, if the sovereign power should enforce its right under the former law it would be guilty of an inconsistency in view of its implied admission that the old law was too severe and consequently unjust. The necessity therefore of applying the less severe new law rests upon the principle that the sovereign power cannot exercise its right to punish except only within those limits of justice which that sovereign power has established as being just and equitable at the time of exercising that right. On the other hand, when the latter statute of limitations of criminal actions is more severe than the former, either as to the applicability of the prescription itself, or as to the requirements and duration of the action, the application of the said law to crime committed before its enactment must be avoided not because the culprit has acquired any right to prevent said application, but for the reasons above set out. Indeed, on what ground can the culprit pretend to prevent the sovereign power from doing what it has the right to do for the purpose of maintaining the juridical order? There exists, therefore, no reason in support of the theory of vested right on the part of the culprit, but what must inevitably be admitted is that the sovereign power cannot, without doing an injustice, apply the more severe legal provision in the matter of prescription; and that that provision cannot justly be applied unless it was previously promulgated, as even the right itself to punish cannot come into existence except by virtue of a law duly promulgated and in force at the time that it was violated and the crime committed. The more severe law in matter of prescription extends the field of criminal action and affects the substance of the same, because it determines the basis and the sphere of the right to punish. Now, can the sovereign power do all this without any law? Can it, without committing an injustice, extend the effect of the new law to acts committed before its enactment? As the sovereign power cannot punish any act not expressly penalized by a former law, nor punish with a more severe penalty any act performed before said penalty was prescribed and the law fixing it promulgated, so it cannot extend the criminal action (that is, its right to punish) by virtue of a later law by applying to acts completed before its promulgation the less favorable provisions therein made regarding prescription. In fact, in any case where reduction of the time of prescription formerly fixed is to be made under a new law, or where harder conditions are required by said law for effectively taking advantage of the prescription, the sovereign power is exercising the right to punish acts committed prior to the promulgation of the new law, and it is evident that no such right can be recognized in the sovereign power. From all of the foregoing, we conclude that upon the very principles of justice, under which the less severe provisions of the new law must regulate all the

elements of the criminal action, said less severe new law must also control the matter of prescription, provided that there is no final and irrevocable judgment, and this rule holds good even if the modifications of the statute have reference to the prescription of the penalty, because in substance the prescription of the penalty is equivalent to the prescription of the criminal action. (Fiore, pages 423-428.) Wharton gives a clear explanation of the distinction to be made between the construction of prescription in criminal actions and that of prescription in civil case in the paragraph above quoted from his book, and the grounds for the distinction are also clear and are not unknown to anybody, for, as Wharton says, they are inherent in the origin and nature itself of the law of prescription, which must be liberally construed in favor of the accused for if prescription in criminal matters is, as said author says, a benefit, a grace granted by the State, and a waiver of its right to prosecute and an announcement that the crime is no longer the subject of prosecution, from the moment that the granting of that grace or benefit, or the making of such waiver, is known, the prosecution for the said crime and the punishment of the offender would be a juridical contradiction. But the opinions discussed by Fiore in his book abovementioned are more in point, for he refers precisely to the prescription provided in a later statute the subject of which is the criminal action or the penalty, that is, the prescription of the crime, as is the case now before us, or the prescription of the penalty, whether prescription be regarded as a law of procedure or of form, or as substantive law. After examining the different opinions of the writers on the matter, Fiore has come, as seen from the above quotation, to the conclusion that, whether the statute relative to prescription be considered as of a procedural or formal, or substantive, nature, the new statute must be applied if it is less severe or more favorable to the accused, but not if it is more prejudicial, notwithstanding the general rule that all procedural laws are retroactive in regard to prescription. In view of the special motion filed by the accused on May 2, 1922, it does not matter and it is of no importance, so far as the question herein raised is concerned, whether the provision contained in section 71 of Act No. 3030 be considered as of a substantive, procedural, or adjective character, because applying the principles above enunciated, the result is the same, and the more severe law in the matter of prescription extends, as Fiore says, the field of the criminal action and affects the very substance thereof, because it determines the basis and the sphere of the rights to punish. It may, perhaps, be argued that no term having been fixed in the Election Law prior to Act No. 3030 for the prescription of the offenses resulting from the violations thereof, and said Act No. 3030 having fixed at one year the period for the prescription, the former law is more lenient, less severe, and more favorable to the persons accused of those offenses than the latter. Such an argument, however, is absolutely erroneous and untenable, if it is borne in mind that no period of prescription having been fixed in the former law, those offense were imprescriptible, and the offender could be prosecuted and

punished at any time and indefinitely, even ten, twenty, or more years after the commission thereof, whereas the new law, that is, Act No. 3030 in providing the period of one year for the prescription, has, in effect, shortened the time of prescription fixed in the old law by virtue of the silence thereof, reducing it to one year and has established less difficult conditions for the application of the same as regards those offenses, which is evidently more favorable and lenient to the violators of the said former law, and, as Fiore says in one of the paragraph above quoted from his book, the reduction made by the new law implies a recognition on the part of the sovereign power that the greater severity of the former law, as regards the substance of the criminal action, is unjust, and it would contradict itself if it would attempt to enforce its right under the conditions of the former law which has already been regarded by the conscientious public opinion as juridically burdensome, and, therefore, unjust, and the sovereign power cannot exercise the right to punish except within the limits regarded by it as just at the time of exercising it. If, therefore, in reviewing the former Election Law contained in the two chapters of the Administrative Code hereinbefore mentioned, for the purpose of amending and reforming it in accordance with the dictates of reason, justice and experience, the Legislature did amend and reform it by the enactment of Act No. 3030, which supplied the deficiency found in the old law with regard to the prescription of the crimes penalized therein, by providing in section 71 of Act No. 3030 that those crimes, which year after their commission, because their imprescriptibility was considered by the conscientious public opinion as juridically burdensome, and, therefore, unjust, it is evident that the State, the Government and the courts of justice representing it, cannot, without committing a gross injustice, exercise the right to prosecute and punish the violator of the old law under the conditions required by the law and outside of the limits now regarded by the sovereign power, that is to say, the Legislature, as just by the enactment of said Act No. 3030, which took effect on March 9, 1922. And such injustice would be more apparent still, if the violators of the old Election Law, which was amended by Act No. 3030, would be prosecuted and convicted five, ten, twenty, or more years after the said violations when the proof of their innocence may not have been kept by them, while violators of Act No. 3030, who may not have been prosecuted within the one year fixed by section 71 aforesaid, would be free from being prosecuted and punished for the crimes committed by them. And this injustice, which is so contrary to conscientious public opinion and repugnant to humane sentiments, would necessarily result, if the provisions of section 71 of Act No. 3030, which is now in force, are not immediately applied right at this stage of the case in favor of the herein accused, by taking up first the special motion of the accused filed on May 2d of this year, before the petition for reconsideration and re-hearing hereinbefore mentioned, or, better, by ignoring the said petition and disposing of the case by deciding the motion of May 2d, wherein the accused invoked the prescription provided in the said section, for the reason that this action was commenced on December 20, 1920, one year and a half after the commission of the offense resulting from the violation of the Election Law with which they are charged. In view of the foregoing, we find the said crime to have prescribed, and setting aside the decision of this court published on the 31st of March of this year, the

present action is dismissed with all the costs de oficio, and the bond given by the accused for their provisional release is cancelled, which release is hereby declared final. So ordered. G.R. No. L-5221 BENITO FERRER Y RODRIGUEZ, petitioner, vs. POTENCIANO PECSON, Judge of the Court of First Instance of Manila and THE PEOPLE OF THE PHILIPPINES, respondents. Maximo Calalang for petitioner. Assistant Fiscal Pedro Ma. Sison, Jr. for respondents. , J.: On March 1, 1949, the petitioner Benito Ferrer Y Rodriguez was accused before the municipal court of Manila of serious physical injuries through reckless imprudence under criminal case No. 10050 of said court. The complaint alleged that on February 2, 1949, in the City of Manila, petitioner, driver of a jeepney, operated it along Dapitan Street in a careless, reckless and imprudent manner as a result of which said jeepney driven by him sideswiped another jeepney thereby causing a collision, inflicting on a passenger named Avelino Tiu physical injuries of fracture compound, communited, middle third, humerus left; fracture compound, communited, neck, radius, left, fracture, simple, middle third, radius, ulna left, which injuries have required and will require medical attendance for a period of from six (6) to eight (8) months and have prevented and will prevent the said offended party from engaging in his customary labor during the same period of time. After trial the Municipal Court of Manila found him guilty and sentenced him to three (3) months of arresto mayor. Defendant appealed the case to the Court of First Instance of Manila. On November 27, 1950, petitioner through counsel filed a motion to dismiss the case on the ground that the Municipal Court of Manila had no jurisdiction over the offense and, consequently, the court of first instance had no appellate jurisdiction. The motion to dismiss was denied by Judge Potenciano Pecson presiding over the court of first instance, but upon motion for reconsideration, the same judge in his order of June 6, 1951 (Annex D), granted the motion for reconsideration and dismiss the case for lack of jurisdiction. On a motion for reconsideration filed by the Fiscal, Judge Pecson in his order dated August 29, 1951 (Annex E), revoked his order of June 6, 1951 (Annex D) and declared his first order of December 14, 1950, denying the motion to dismiss as in force. Counsel for defendant Ferrer asked for a reconsideration of this order and upon denial of his motion by order of the respondent judge dated October 31, 1951 (Annex I), has filed the present petition for certiorari to revoked the order of August 29, 1951 (Annex E), and to reinstate the order of June 6, 1951 (Annex D). After a careful study of this case, we are inclined to agree with the petitioner. The jurisdiction of the court to try a criminal case is to be determined by the law at the time of the institution of the action, (People vs. Pegarum, 58 Phil. 715). At the time that the complaint in this case was filed on March 1, 1949, in the Municipal Court of Manila, the law penalizing the act imputed to the petitioner was the Revised Motor Vehicle Law (Act No. 3932), section 67 of which provides that if as a result of negligence or reckless or unreasonably fast driving any accident occurs resulting in death or serious bodily injury to any

person, the one responsible upon conviction shall be punished by imprisonment for not less than fifteen (15) days nor more than six (6) years in the discretion of the court. According to a series of cases decided by this court, among them that of Eustaquio vs. Liwag (86 Phil. 540) and People vs. Moreno (60 Phil. 712), an act of negligence or reckless or unreasonably fast driving resulting in death or serious physical injuries to any person, should be prosecuted under section 67 of the Revised Motor Vehicle Law and not under the Revised Penal Code. The criminal jurisdiction of a justice of the peace or a municipal court as defined in the Judiciary Act of 1948 approved in June 1948, is confined to offenses in which the penalty is not more than six (6) months. From this it is clear that the Municipal Court of Manila had no jurisdiction over this case where a maximum penalty of six (6) years may be imposed; and if it had no original jurisdiction, the court of first instance presided over by Judge Pecson had likewise no appellate jurisdiction. It is true that section 67 of the Revised Motor Vehicle Law (Act No. 3932) was amended by section 16 of Republic Act No. 587 which went into effect on January 1, 1951, in the sense that acts of negligence or reckless or unreasonably fast driving resulting in death or serious bodily injury upon any person shall be prosecuted and punished under the provisions of the Revised Penal Code. But this act may not be given retroactive effect so as to confer on the municipal court jurisdiction which it did not have when it tried and decided the case against petitioner. It may be true that the provisions of the penal code are more favorable to the petitioner in this case as regards the penalty, but when the very accused (herein petitioner) far from invoking the benefits of said Republic Act No. 587, disregards it and instead, invokes the Revised Motor Vehicle Law (Act No. 3932) which was in force at the time that the acts imputed to him were committed, at least for that reason alone the question of retroactivity cannot and will not be considered. Respondents contend that under the Judiciary Act of 1948 as well as the Charter of the City of Manila, the Municipal Court of Manila is given jurisdiction to try criminal cases of assaults where the intent to kill is not evident from the evidence, regardless of the penalty attached to the crime. But it is obvious that acts of negligence in the operation of a motor vehicle which cause a collision and result in physical injuries can hardly be regarded as assaults without the intent to kill. For the foregoing reasons, the petition for certiorari is hereby granted and the order of respondent judge of June 6, 1951 (Annex D) dismissing the case for lack of jurisdiction is hereby reinstated. No costs. TAYAG vs. CA and LEYVA G.R. No. 96053 March 3, 1993 Facts: Siblings Juan Galicia Sr. and Celerina Labuguin entered into a contract to sell a parcel of land in Nueva Ecija to a certain Albrigido Leyva: o 3K upon agreement o 10K ten days after the agreement o 10K representing vendors indebtedness to Phil Veterans Bank o 27K payable within one year from execution of contract. Leyva only paid parts of the obligation. But even after the grace period for payment made in the contract and while

litigation of such case, the petitioners still allowed Leyva to make payments. With regards to the obligation payable to the Phil Veterans bank by the vendee, as they deemed that it was not paid in full, such obligation they completed by adding extra amount to fulfill such obligation. This was fatal in their case as this is Leyvas argument that they constructively fulfilled the obligation which is rightfully due to him. (Trivia: It was Celerina, Juans sister, that paid the bank to complete such obligation). Petitioners claim that they are only OBLIGEES with regards to the contract, so the principle of constructive fulfillment cannot be invoked against them. Petitioners, being both creditor and debtor to private respondent, in accepting piecemeal payment even after the grace period, are barred to take action through estoppel. Issue: 1. WON there was constructive fulfillment in the part of the petitioners that shall make rise the obligation to deliver to Leyva the deed of sale? YES 2. WON they are still entitled to rescind the contract? NO, barred by estoppel. Held: 1.In a contract of purchase, both parties are mutually obligors and also obligees, and any of the contracting parties may, upon non-fulfillment by the other privy of his part of the prestation, rescind the contract or seek fulfillment (Article 1191, Civil Code). In short, it is puerile for petitioners to say that they are the only obligees under the contract since they are also bound as obligors to respect the stipulation in permitting private respondent to assume the loan with the Philippine Veterans Bank which petitioners impeded when they paid the balance of said loan. As vendors, they are supposed to execute the final deed of sale upon full payment of the balance as determined hereafter. 2.Petitioners accepted Leyvas delayed payments not only beyond the grace periods but also during the pendency of the case for specific performance. Indeed, the right to rescind is not absolute and will not be granted where there has been substantial compliance by partial payments. By and large, petitioners actuation is susceptible of but one construction that they are now estopped from reneging from their commitment on account of acceptance of benefits arising from overdue accounts of private respondent. DBP V. CA G.R. NO. 28774 Facts: DBP bought 91,188.30 square meters of land, consisting of 159 lots, in the proposed Diliman Estate Subdivision of the PHHC. However, the sale of the lots to DBP, Lots 2 and 4, which form part of said 159 lots, were still sold by PHHC to the spouses Nicandro, for which 2 deeds of sale were issued to them by PHHC. Upon learning of PHHCs previous transaction with DBP, the spouses filed a complaint against DBP and the PHHC to rescind the sale of Lots 2 and 4 by PHHC in favor of DBP. The CFI held that the sale of Lots 2 and 4, to DBP is null and void, for being in violation of Section 13 of the DBP Charter. Issue: Do the spouses possess the legal personality to question the legality of the sale? Held: Yes. The spouses stand to be prejudiced by reason of their payment in full of the purchase price for the same lots which had been sold to DBP by virtue of

the transaction in question.The general rule is that the action for the annulment of contracts can only be maintained by those who are bound either principally or subsidiarily by virtue thereof. However, a person who is not obliged principally or subsidiarily in a contract may exercise an action for nullity of the contract if he is prejudiced in his rights with respect to one of the contracting parties, and can show the detriment which could positively result to him from the contract in which he had no intervention. G.R. No. L-23127 April 29, 1971 FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee, vs. PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant. Dionisio E. Moya for plaintiff-appellee. Ramon B. de los Reyes for defendant-appellant. FERNANDO, J.: A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit against defendant, now appellant Philippine National Bank, permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense raised by appellant that if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In arriving at such a conclusion, the lower court manifested a tenacious adherence to the inflexible view that an unconstitutional act is not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to the force of the principle adopted by this Court that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the lower court resulted in an erroneous decision. We find for appellant Philippine National Bank, and we reverse. There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against defendant Provincial Sheriff, which was made permanent in the decision now on appeal. Defendant Bank in its answer prayed for the dismissal of the suit as even on plaintiff's own theory

the defense of prescription would not be available if the period from March 10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative act 2 extending the period of moratorium was declared invalid, were to be deducted from the computation of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower court did not find such contention persuasive and decided the suit in favor of plaintiff. Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given to a statute subsequently declared invalid. 1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. 3 It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication. In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official." 4 This language has been quoted with approval in a resolution in Araneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. 7

2. Such an approach all the more commends itself whenever police power legislation intended to promote public welfare but adversely affecting property rights is involved. While subject to be assailed on due process, equal protection and non-impairment grounds, all that is required to avoid the corrosion of invalidity is that the rational basis or reasonableness test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in sheer oppression. It may be of course that if challenged, an adverse judgment could be the result, as its running counter to the Constitution could still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation, never static but subject to change, a measure valid when enacted may subsequently, due to altered circumstances, be stricken down. That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the then President Osmea, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v. Esteban 8 where such enactment was considered in 1953 "unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect." 9 At the time of the issuance of the above Executive Order in 1945 and of the passage of such Act in 1948, there was a factual justification for the moratorium. The Philippines was confronted with an emergency of impressive magnitude at the time of her liberation from the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate. Measures, radical measures, were then devised to tide her over until some semblance of normalcy could be restored and an improvement in her economy noted. No wonder then that the suspension of enforcement of payment of the obligations then existing was declared first by executive order and then by legislation. The Supreme Court was right therefore in rejecting the contention that on its face, the Moratorium Law was unconstitutional, amounting as it did to the impairment of the obligation of contracts. Considering the circumstances confronting the legitimate government upon its return to the Philippines, some such remedial device was needed and badly so. An unyielding insistence then on the rights to property on the part of the creditors was not likely to meet with judicial sympathy. Time passed however, and conditions did change. When the legislation was before this Court in 1953, the question before it was its satisfying the rational basis test, not as of the time of its enactment but as of such date. Clearly, if then it were found unreasonable, the right to nonimpairment of contractual obligations must prevail over the assertion of community power to remedy an existing evil. The Supreme Court was convinced that such indeed was the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an

opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could affect a liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States. 10 The conclusion to which the foregoing considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That before the decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. 3. Precisely though because of the judicial recognition that moratorium was a valid governmental response to the plight of the debtors who were war sufferers, this Court has made clear its view in a series of cases impressive in their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has been held from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is that as of the time of the lower court decision on January 27, 1960, at least eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments Corp. 14 has categorized it as having been "explicitly and consistently rejected by this Court." 15 The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were started by appellant Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then, when resort was had extrajudicially to the foreclosure of the mortgage obligation, there was time to spare before prescription could be availed of as a defense. WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10, 1959 dismissed. No costs. [G.R. No. L-6897. November 29, 1956.] In the Matter of the Claim for Attorneys Fees. CLARO M. RECTO, claimantAppellee, vs. ESPERANZA P. DE HARDEN and FRED M. HARDEN, DefendantsAppellants. DECISION CONCEPCION, J.: This is an appeal taken by Esperanza P. de Harden and Fred M. Harden from a

decision of the Court of First Instance of Manila, the pertinent part of which is of the following tenor:chanroblesvirtuallawlibrary. The contingent fee to which the claimant is entitled under paragraph 3 of the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of P384,110.97. WHEREFORE, this Court hereby approves the recommendation of the Commissioner with the above-stated modification, and finds that Attorney Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR THOUSAND ONE HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS (P384,110.97), representing 20% of Esperanza P. de Hardens share in the conjugal properties owned by her and her husband, Fred M. Harden, as contingent fee stipulated in paragraph 3 of the Contract of Professional Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby ordered to pay the said amount above-stated. It appears that sometime in July, 1941, Appellant, Mrs. Harden, and Appellee, Claro M. Recto, executed the following:chanroblesvirtuallawlibrary CONTRACT OF PROFESSIONAL SERVICES KNOW ALL MEN BY THESE PRESENTS:chanroblesvirtuallawlibrary That I, ESPERANZA PEREZ DE HARDEN, of age, married to Fred M. Harden, and temporarily residing in the Philippines, with address at 534 Sales Street, Manila, have engaged the services of Attorney Claro M. Recto to appear and act as my counsel in the action which I will file against my husband, Fred M. Harden, for the purpose of securing an increase in the amount of support being received by me from the conjugal partnership of myself and said Fred M. Harden, and for the purpose likewise of protecting and preserving my rights in the properties of the said conjugal partnership, in contemplation of the divorce suit which I intent to file against him in the competent Court of California and of the liquidation of the conjugal partnership between us, this contract of services to be under the following conditions:chanroblesvirtuallawlibrary 1. That in lieu of retainer fee, which under the circumstances I am not in a position to pay, I hereby agree to pay Attorney Claro M. Recto, such payment to be made monthly, during the pendency of the litigation and until the termination of the same, twenty-five (25%) per cent of the total increase in allowance or pension which may be awarded to me by the court over and above the amount of P1,500.00 which I now receive monthly from Defendant Fred M. Harden out of the funds of the conjugal partnership; chan roblesvirtualawlibraryProvided, that should the case be terminated or an amicable settlement thereof be arrived at by the parties before the expiration of two years from the date of the filing of the complaint, I shall continue to pay the said twenty-five (25%) per cent up to the end of said period. 2. That the aforesaid monthly payments shall be in addition to whatever amount may be adjudged by the court against the Defendant Fred M. Harden or against the conjugal partnership by way of litis expense, that is, attorneys fees chargeable as expenses of litigation.

3. That as full and complete satisfaction of the fees of Attorney Claro M. Recto in connection with the case above referred to, and said case being for the purposes aforestated, that is, to secure an increase in the amount of support I now receive as well as to protect and preserve my rights and interest in the properties of the conjugal partnership, in contemplation of divorce and of the liquidation of said partnership, I hereby agree to pay said Attorney Claro M. Recto twenty (20%) per cent of the value of the share and participation which I may receive in the funds and properties of the said conjugal partnership of myself and Defendant Fred M. Harden, as a result of the liquidation thereof either by death, divorce, judicial separation, compromise or by any means or method by virtue of which said partnership is or may be liquidated. 4. All expenses in connection with the litigation are to be for my account, but the same may be advanced by Attorney Claro M. Recto, to be reimbursed to him either from the money which I receive by way of support or from the funds of the conjugal partnership. 5. It is hereby understood that this contract includes the services of Attorney Claro M. Recto in connection with the securing of the liquidation of the properties and assets of the conjugal partnership of myself and Fred M. Harden, upon dissolution of said partnership or for any other cause mentioned in Paragraph (3) hereof. IN WITNESS WHEREOF, I have signed these presents in the City _____ of Manila, Philippines this _______ day of July, 1941. s/ Esperanza P. de Harden t/ ESPERANZA P. DE HARDEN ACCEPTED:chanroblesvirtuallawlibrary s/ Claro M. Recto t/ CLARO M. RECTO In compliance therewith, on July 12, 1941, the Appellee, as counsel for Mrs. Harden, commenced Civil Case No. 59634 of the Court of First Instance of Manila, entitled Esperanza P. de Harden vs. Fred M. Harden and Jose Salumbides. In the complaint therein filed, it was prayed, among other things:chanroblesvirtuallawlibrary (a) that Mrs. Harden be given the exclusive administration of the business and all properties of the conjugal partnership of Mr. and Mrs. Harden; chan roblesvirtualawlibrary(b) that, in the event of denial of this prayer, the Defendants be ordered to inform her of everything pertaining to the administration of said business and properties, as well as to render accounts thereof and to permit her to examine the books and records pertinent thereto; chan roblesvirtualawlibrary(c) that Mr. Harden be ordered to account to Mrs. Harden, and to return to this jurisdiction, the sum of P449,015.44 allegedly withdrawn by him from the Philippines or sent by him to

Hongkong on April 1, 1941; chan roblesvirtualawlibrary(d) that Defendant Salumbides be ordered to account for all moneys, amounting to P285,000.00, belonging to the business and assets of said conjugal partnership and deposited by him in a safety box, either in his name, or in that of Antonio Wilson, from January 23 to December 23, 1940; chan roblesvirtualawlibrary(e) that the transfer, in the name of Salumbides, of certain shares of stock, allegedly belonging to the conjugal partnership, be rescinded and said Defendant ordered to transfer said shares of stock in the name of Mrs. Harden or in that of Mr. and Mrs. Harden, should Mr. Harden be allowed to continue as administrator of said partnership; chan roblesvirtualawlibrary( f ) that the transfer, made by Mr. Harden and/or by Defendant Salumbides, as his attorney-in-fact, of 36,000 shares of stock of the Angelo Mining Company, to some residents of Hongkong, be rescinded and said shares returned to the assets of the conjugal partnership and placed in the name of Mr. and Mrs. Harden; chan roblesvirtualawlibrary(g) that the monthly allowance of Mrs. Harden be increased from P1,500 to P15,000; chan roblesvirtualawlibrary(h) that, pending final decision, Mr. Harden be ordered to increase the allowance or pension of Mrs. Harden and their daughter Sarah Elizabeth to P10,000 a month; chan roblesvirtualawlibraryand (i) that a writ of preliminary injunction be issued restraining the Defendants from disposing of the assets of the conjugal partnership in fraud of Mrs. Harden. By an order dated July 12, 1941, the court authorized the issuance of said writ, upon the filing of the corresponding bond. It appears that, pursuant to an agreement submitted by both parties, and with a view to avoiding unnecessary embarrassment, restraint or inconvenience in the financial operations of the business enterprises affected by said writ of preliminary injunction, the same was amended by an order dated July 19, 1941, in the sense that. cralaw without prejudicing in any way the rights of the parties in this case, a separate bank account be established in the Chartered Bank of India, Australia and China, of Manila, and all transactions in connection with the aforesaid businesses passed through that account by Mr. Harden or his duly authorized representative, who at present is Mr. Salumbides, without the necessity of securing a particular order from this Court on each occasion; chan roblesvirtualawlibrarythat the present funds in the Philippine National Bank in the name of Plaza Lunch and Fred M. Harden be utilized for the purpose of starting said special bank account in the Chartered Bank of India, Australia and China; chan roblesvirtualawlibrarythat all income from the aforesaid businesses be deposited in this special bank account and no checks be drawn upon the same, except to pay the necessary overhead and running expenses including purchases of tobacco, merchandise, etc., required for the proper operation of said businesses; chan roblesvirtualawlibrarythat a new set of books be opened by Mr. Harden or his duly authorized representative covering all business transactions passed through said special bank account and the same be opened for inspection by the Plaintiffs duly authorized representative. The order of injunction of July 12, 1941, is modified only to the above extent, and in all other respects is maintained.

Subsequently, the Philippines was invaded by the Japanese and placed under military occupation. Then came the liberation, in the course of which the records of this case were destroyed. On October 23, 1946, said records were reconstituted at the instance of Appellee herein. Thereafter, the proceedings were resumed and, in due course, the Court of First Instance of Manila rendered, on or about October 31, 1949, a decision the dispositive part of which we quote:chanroblesvirtuallawlibrary In view of the foregoing considerations, this court finds and so holds that (a) Fred M. Harden abandoned his domicile of origin in New Jersey and established a domicile of choice in Manila, Philippines, since 1901; (b) The matrimonial domicile of Fred M. Harden and Esperanza P. de Harden was established in Manila, Philippines, from the date of their marriage on December 14, 1917; (c) Since they did not execute any antenuptial contract before their marriage, all the properties, real or personal, acquired by either or both of them on and after December 14, 1917, up to the present, over and above the sum of P20,000.00 representing Fred M. Hardens capital, are hereby declared conjugal properties; (d) The total amount of P1,944,794.37 representing deposits in safety deposit boxes in the name of Jose Salumbides, the selling price of the house in Los Angeles, California, and the pre-war and post-war remittances abroad of Fred M. Harden, from which has already been deducted the sum of P160,000.00 covering payments for deficiency Federal income taxes and attorneys fees, both in the tax case and the present one, is hereby declared chargeable to the share of Defendant Harden and deductible from whatever participation he may still have in the said conjugal partnership upon the liquidation thereof, upon his failure to return and deposit them in the name of the Plaza Lunch with the Manila branch of the Chartered Bank of India, Australia and China up to the time this decision shall become final; (e) A conjugal lien be annotated in the original and owners duplicate of Transfer Certificates of Title Nos. 24393, 52436 and 54911 of the Register of Deeds of Manila and in Original Certificate of Title No. 2292 of Quezon Province, and on all the certificates of shares belonging to said conjugal partnership, as well as in the corresponding books of the companies or corporations issuing them, whereby it will be made to appear that any subsequent alienation or encumbrance of said properties by Fred M. Harden alone or his representative without the consent of his wife will be deemed fraudulent and subject to revocation or cancellation for being in fraud and prejudicial to the right of Esperanza P. de Harden; ( f ) Within a period of fifteen (15) days after this decision shall have become final, Fred M. Harden and Esperanza P. de Harden are hereby ordered to execute a document to be approved by this court creating and express active trust upon the remaining cash assets and income of the conjugal partnership in the Philippines, whereby the Philippine Trust Company, with offices in Manila, will act as trustee, subject to the right of Fred M. Harden to receive therefrom the sum of P2,500,00 a month by way of allowance and an equal amount for the Plaintiff as separate support and maintenance; (g) Within thirty (30) days after this decision shall have become final, Fred M. Harden shall inform the Plaintiff of all the properties and businesses of the

conjugal partnership, be they in the Philippines or abroad, and render a true and complete accounting of the earnings and profits thereof; (h) The Plaintiff is entitled to litis expensae in the amount of P175,000.00 for services rendered by her counsel up to the rendition of this judgment, which Fred M. Harden or the herein receiver is ordered to pay within a period of fifteen (15) days after this decision has become final; chan roblesvirtualawlibraryand (i) The writ of preliminary injunction of July 12, 1941, is hereby declared permanent and the order of receivership of November 20, 1946, is hereby maintained, but said auxiliary remedies will be automatically lifted upon the conclusion of the annotation of the conjugal lien and the execution of the deed of trust above mentioned. Without costs. IT IS SO ORDERED. The Defendants appealed from said decision to this Court, where the case was docketed as case No. L-3687. While the appeal was thus pending before us, herein Appellee filed a manifestation and a motion, both dated February 20, 1952. In said manifestation, Appellee stated that Mrs. Harden had instructed him, by letter, to discontinue all proceedings relative to said case, vacate all orders and judgments rendered therein, and abandon and nullify all her claims to the conjugal partnership existing between her and Mr. Harden, in accordance with several instruments dated January 29, 1952, and executed without the knowledge, advise and consent of said Appellee, as counsel for Mrs. Harden, whereby:chanroblesvirtuallawlibrary (1) Mr. and Mrs. Harden had purportedly agreed to settle their differences in consideration of the sum of $5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of P500 to be paid by him to her; chan roblesvirtualawlibrary(2) Mr. Harden had created a trust fund of $20,000 from which said monthly pension of $500 would be taken; chan roblesvirtualawlibraryand (3) Mr. and Mrs. Harden had mutually released and forever discharged each other from all actions, debts, duties, accounts, demands and claims to the conjugal partnership, in consideration of the sum of $1. It was further asserted, in Appellees manifestation, that the purpose of the said instruments, executed by Mr. and Mrs. Harden, was to defeat the claim of the former for attorneys fees, for which reason, he prayed, in his aforementioned motion, that a) Pending the resolution of this motion, the receiver appointed herein be authorized to continue holding the properties above mentioned in his custody in order not to defeat the undersigneds inchoate lien on them; b) A day set aside to receive the evidence of the undersigned and those of the Plaintiff and the Defendant Fred M. Harden, in order to determine the amount of fees due to the undersigned, by the appointment of a referee or commissioner for the reception of such c) After due hearing, the undersigned be declared entitled to the sum of P400,000.00 as his fees for services rendered in behalf of the Plaintiff in this case, under paragraph 3 of the contract, Annex A, and to that end a charging lien therefore be established upon the properties above-mentioned; d) And the receiver be ordered to pay to the undersigned the full amount of the fees to which the latter is found to be entitled. Counsel for the Defendants-Appellants, in turn, moved for the dismissal of the case, to which Appellee objected. Acting upon the issues raised in such motion for dismissal and in Appellees motion to establish and enforce his charging

lien, as counsel for Mrs. Harden, this Court issued on July 22, 1952, a resolution the pertinent part of which reads:chanroblesvirtuallawlibrary It will be seen from the above that the Defendants-Appellants pray for the complete dismissal of the above entitled case without prejudice to the annotation of the contingent claim of Attorney Claro M. Recto on the property under receivership, other than the 368,553 shares of the Balatoc Mining Company which belong to Fred M. Harden. On the other hand, Attorney Claro M. Recto agrees to the lifting of the writ of preliminary injunction, the orders of contempt and commitment, and all other interlocutory orders which were issued in the course of this case, with the exception of the receivership, but objects to the dismissal of the case on the ground that, since receivership is merely an auxiliary remedy, the present case should be allowed to remain pending for the purpose of maintaining the receivership to safeguard his right to collect the fees that may be due him. Attorney Claro M. Recto prays that a commissioner or referee be immediately appointed by this Court to receive evidence in support of his allegations as to his attorneys lien and its enforcement. Counsel for the Defendants-Appellants does not object to this proceeding provided that the restrictions set forth by him be observed. However, this Court does not have the proper facilities for receiving evidence in order to determine the amount of the fees claimed by Attorney Claro M. Recto, and it is deemed advisable that this matter be determined by the Court of First Instance. This is specially so considering the opposition to the claim of Attorney Claro M. Recto filed by Attorney J. W. Ferrier, Sr. in behalf of Esperanza P. de Harden. In view of the foregoing, the above entitled case is hereby remanded to the court of origin in order to determine the amount of fees claimed by Attorney Claro M. Recto in his motion dated February 20, 1952. It is understood that, after said fees had been finally determined and paid, this case will be completely dismissed as prayed for by the DefendantsAppellants, without prejudice to considering the claim of the receiver for compensation as stated in his urgent motion dated July 2, 1952. Pending the determination of the amount of fees claimed by Attorney Claro M. Recto, the writ of preliminary injunction, the orders of contempt and commitment, and all interlocutory orders which were issued in the course of this case, are hereby lifted and vacated, and with regard to the receivership, the same is hereby dissolved, only with respect to the 368,553 shares of the Balatoc Mining Company. As to the rest of the properties, the receivership shall be maintained. In compliance with said resolution, the records of this case were remanded to the lower court, which, on September 2, 1952, designated a commissioner to receive evidence on the amount of the fees collectible by herein Appellee and to report thereon. After due hearing, said commissioner submitted, on February 6, 1953, a report of about one hundred (100) pages of the printed record on appeal, setting forth, in detail, the evidence introduced by both parties, and his findings of fact, with the following conclusion and recommendation:chanroblesvirtuallawlibrary Taking into consideration the value of the properties involved in this litigation, the length of time in which claimant had handled the same for Esperanza Harden, the volume and quality of the work performed, the complicated legal

questions involved, the responsibility assumed by the claimant as counsel, his reputation in the bar, the difficulties encountered by him while handling the same in which he had to work hard every inch of the way because of the stiff oppositions filed by adverse counsel, the diligence he employed not only in the preservation of the records in his possession during the days of enemy occupation but also in the protection of the interests of Esperanza Harden, his successful handling of said case and those cases growing out of it which reached the Supreme Court, and the extra services he rendered in her behalf in the tax and other court cases, the undersigned Commissioner concludes that claimant is entitled to the full amount of 20% of Esperanza Hardens share of the conjugal properties, as provided in paragraph 3 of the Contract of Professional Services, Exhibit JJJ. WHEREFORE, the undersigned Commissioner respectfully recommends that Atty. Claro M. Recto be paid the equivalent amount of 20% of Esperanza P. de Hardens share of the conjugal properties or the sum of P369,410.04 as his contingent fee for services rendered in her behalf. After appropriate proceedings, the lower court rendered a decision dated April 30, 1953, adopting substantially said report of the commissioner, but increasing the contingent fee of Appellee herein from P369,410.04, the sum recommended in the report, to P384,110.97. Hence, this appeal taken by Mr. and Mrs. Harden. The first question for determination therein is the validity of the above-quoted contract of services, which the Appellants assail as void, mainly, upon the ground:chanroblesvirtuallawlibrary (1) that Mrs. Harden cannot bind the conjugal partnership without her husbands consent; chan roblesvirtualawlibrary(2) that Article 1491 of the Civil Code of the Philippines in effect prohibits contingent fees; chan roblesvirtualawlibrary(3) that the contract in question has for its purpose to secure a decree of divorce, allegedly in violation of Articles 1305, 1352 and 1409 of the Civil Code of the Philippines; chan roblesvirtualawlibraryand (4) that the terms of said contract are harsh, inequitable and oppressive. The first objection has no foundation in fact, for the contract in dispute does not seek to bind the conjugal partnership. By virtue of said contract, Mrs. Harden merely bound herself or assumed the personal obligation to pay, by way of contingent fees, 20% of her share in said partnership. The contract neither gives, nor purports to give, to the Appellee any right whatsoever, personal or real, in and to her aforesaid share. The amount thereof is simply a basis for the computation of said fees. For the same reason, the second objection is, likewise, untenable. Moreover, it has already been held that contingent fees are not prohibited in the Philippines and are impliedly sanctioned by our Cannons (No. 13) of Professional Ethics. (see, also, Ulanday vs. Manila Railroad Co., 45 Phil., 540, 554.) Such is, likewise, the rule in the United States (Legal Ethics by Henry S. Drinker, p. 176).

cralaw in the United States, the great weight of authority recognizes the validity of contracts for contingent fees, provided such contracts are not in contravention of public policy, and it is only when the attorney has taken an unfair or unreasonable advantage of his client that such a claim is condemned. (See 5 Am. Jur. 359 et seq.; chan roblesvirtualawlibraryBallentine, Law Dictionary, 2nd ed., p. 276.) Needless to say, there is absolutely nothing in the records before us to show that Appellee herein had, in any manner, taken an unfair or unreasonable advantage of his client Mrs. Harden. The third objection is not borne out, either by the language of the contract between them, or by the intent of the parties thereto. Its purpose was not to secure a divorce, or to facilitate or promote the procurement of a divorce. It merely sought to protect the interest of Mrs. Harden in the conjugal partnership, during the pendency of a divorce suit she intended to file in the United States. What is more, inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States, their status and the dissolution thereof are governed pursuant to Article 9 of the Civil Code of Spain (which was in force in the Philippines at the time of the execution of the contract in question) and Article 15 of the Civil Code of the Philippines by the laws of the United States, which sanction divorce. In short, the contract of services, between Mrs. Harden and herein Appellee, is not contrary to law, morals, good customs, public order or public policy. The last objection is based upon principles of equity, but, pursuant thereto, one who seeks equity must come with clean hands (Bastida, et al., vs. Dy Buncio & Co., 93 Phil., 195; chan roblesvirtualawlibrary30 C.J. S. 475), and Appellants have not done so, for the circumstances surrounding the case show, to our satisfaction, that their aforementioned agreements, ostensibly for the settlement of the differences between husband and wife, were made for the purpose of circumventing or defeating the rights of herein Appellee, under his above-quoted contract of services with Mrs. Harden. Indeed, having secured a judgment in her favor, acknowledging her rights to the assets of the conjugal partnership, which turned out to be worth almost P4,000,000 in addition to litis expensae in the sum of P175,000, it is inconceivable that Mrs. Harden would have waived such rights, as well as the benefits of all orders and judgments in her favor, in consideration of the paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional sum of $20,000 to be paid by him in installments, at the rate of $500 a month. In fact, no explanation has been given for this most unusual avowed settlement between Mr. and Mrs. Harden. One cannot even consider the possibility of a reconciliation between the spouses, the same being inconsistent with the monetary consideration for said alleged settlement. What is more, the records show that the relations between said spouses which were bad indeed, not only in July, 1941, when Mrs. Harden engaged the services of the Appellee, but, even, before, for Mr. and Mrs. Harden were separated since 1938 had worsened considerably thereafter, as evidence by an action for divorce filed by Mr. Harden in New Jersey, in July 1948, upon the ground of repeated acts of infidelity allegedly committed by Mrs. Harden in 1940 and 1941.

Again, it appears that Appellee had rendered, under the contract in question, the following services, for the benefit of Mrs. Harden:chanroblesvirtuallawlibrary 1. He succeeded in defeating Defendants motion for the dissolution of the writ of preliminary injunction, issued by the Court on July 12, 1941, and amended on July 19, 1941. 2. On November 12, 1946, Appellee moved for the appointment of a receiver, upon the ground that, despite said writ of preliminary injunction, the Defendants had been disposing of the properties of the conjugal partnership for the purpose of defrauding Mrs. Harden. After due hearing, the court, by an order dated November 20, 1946, directed the appointment of Abelardo Perez as receiver of said properties, upon the filing of a P10,000 bond. Defendants asked, on February 13, 1947, that the receivership be suspended, or else, that they be allowed to file a bond for the discharge of the receivership. Appellee replied objecting thereto, unless the Defendants posted a P4,000,000 bond. Subsequently or on March 5, 1947, the Defendants sought a reconsideration of the order of November 20, 1946, and the discharge of the receiver. By an order dated March 21, 1947, the Court authorized said discharged upon the filing, by the Defendants, of a bond in the sum of P500,000, provided that Mr. Harden should bring back all the 368,553 shares of the Balatoc Mining Co., in his name to the Philippines for deposit with the Clerk of Court, or with the Chartered Bank of India, Australia and China, at Manila cralaw 3. On motion of the Appellee dated March 4, 1947, the Court, by an order dated April 5, 1947, directed Mr. Harden to remit to Mrs. Harden the sum of $2,500, to be charged against her litis expensae. Upon similar motion, filed by Appellee on or about April 26, 1947, the Court ordered Mr. Harden, on May 13, 1947, to furnish Mrs. Harden the sum of $5,000, under the same conditions. 4. On June 21, 1947, the Defendants instituted Civil Case No. G. R. No. L-1499 of this Court, entitled Fred M. Harden and Jose Salumbides vs. Emilio Pea, Abelardo Perez and Esperanza P. Harden for the purpose of annulling and setting aside, by writ of certiorari, the aforementioned orders of the lower court dated July 12, 1941, November 20, 1946, and April 5 and May 13, 1947, and to restrain, in the meantime, the enforcement thereof. After appropriate proceedings, in the course of which Appellee appeared as counsel for Mrs. Harden, and like counsel for the Petitioners therein, filed several lengthy, detailed pleadings and memoranda, decision was rendered on November 21, 1950, denying the writ of certiorari prayed for. 5. On or about September 9, 1947, Appellee filed a motion alleging that despite the writ of preliminary injunction above mentioned, the Defendants had, fraudulently and without judicial consent, remitted abroad several sums of money aggregating P1,000,608.66, and praying that Mr. Harden be ordered to return this sum to the Philippines, within a stated period, said sum to be deposited with the account of the Plaza Lunch at the Manila Branch of the Chartered Bank of India, Australia and China. Mr. Harden objected to said

motion. Appellee filed a rejoinder, to which Mr. Harden replied. Appellee filed a rejoinder to the rejoinder. On October 7, 1947, the Court granted Appellees motion. Mr. Harden sought a reconsideration, which was opposed by the Appellee on October 27, 1947, and denied by an order dated November 13, 1947. Mr. Harden moved, on November 18, 1947, for the suspension of this order, which was immediately objected to by the Appellee and then denied by the Court. 6. Inasmuch as said order of November 13, 1947 had not been complied with, Appellee filed on November 27, 1947, a motion praying that Mr. Harden be declared in contempt of court and punished accordingly. Meanwhile, or on November 24, 1947, Mr. Harden had instituted case G. R. No. L-1816 of this Court against Hon. Emilio Pea, as Judge of the Court of First Instance of Manila, and Mrs. Harden. In the petition therein filed, Mr. Harden applied for a writ of certiorari annulling said orders of Judge Pea of October 7 and November 13, 1947, and prayed that, pending disposition of the case, a writ of preliminary injunction be issued restraining the Respondents therein from enforcing said orders, particularly through contempt proceedings. Hence, the lower court deferred action on the aforementioned motion of November 27, 1947. After due hearing, this Court, in a resolution dated February 12, 1948, refused to issue the writ of preliminary injunction prayed for. Subsequently, or on November 21, 1950, decision was rendered denying the petition for a writ of certiorari. 7. Soon after the issuance of our resolution in said case G. R. No. 1816, dated February 12, 1948, or to be exact on March 27, 1948, the lower court issued an order directing Mr. Harden to comply, within five (5) days from notice, with the order of October 7, 1947. On April 6, 1948, Appellee filed with the lower court the corresponding formal charges against Mr. Harden for contempt of court. After due hearing, Mr. Harden was, by an order of April 28, 1948, found guilty as charged and ordered confined until he complies with the aforementioned orders of October 7, 1947 and March 27, 1948. On motion of Mr. Harden, said order of April 28, 1948 was suspended until May 4, 1948, on which date he was arrested and placed in confinement at the New Bilibid Prison, in Muntinglupa, Rizal. On July 10, 1948, he filed with this Court a petition for a writ of habeas corpus against the Director of Prisons, (G. R. No. L-2349, entitled Fred M. Harden vs. The Director of Prisons), which, in due course was denied in a decision promulgated on October 22, 1948. 8. During the military occupation of the Philippines by the Japanese, the Appellee made representations with the Japanese Government to prevent the commandeering of a business establishment belonging to Mr. and Mrs. Harden. Moreover, he succeeded in persuading the Japanese to refrain from interning Mrs. Harden and her daughter and to allow her to withdraw, from the formers deposit in a local bank, from P200 to P250 a month, for their subsistence. He, likewise, lent her money to meet her needs and spent the sum of P55,000 in the preservation of the records and papers pertaining to the business and other properties of the conjugal partnership of Mr. and Mrs. Harden. 9. Appellee assisted, also, the receiver, as his counsel and, in such capacity,

took all steps essential for the proper discharge of the duties of the former. Among other things, Appellee sought and obtained judicial authority for some important acts of administration of, and disposition by, the receiver. He (Appellee) secured judicial intervention for the protection and preservation of the assets of the conjugal partnership, including orders for the delivery of certificates of stock, the return thereof and/or its deposit with the clerk of court. He, likewise, represented the receiver in seeking war damage payments. 10. In civil case No. 6222 of the Court of First Instance of Manila, entitled Francisco Dalupan vs. Fred M. Harden for the recovery of P113,837.17, it was decided, through Appellees intervention, that the conjugal assets would bear the payment of P22,767.43 only, the balance to be chargeable exclusively against Mr. Hardens share of the conjugal partnership. 11. Appellee instituted civil case No. 6940 of the Court of First Instance of Manila, entitled Abelardo Perez vs. Chartered Bank of India, Australia and China and Fred M. Harden, for the recovery of P1,000,608.66 and the return of stock certificates of the Balatoc Mining Co., which had been sent abroad. 12. He (Appellee) represented Mrs. Harden in connection with a million-peso federal tax case against Mr. and Mrs. Harden. 13. Appellee successfully blocked Mr. Hardens attempts to withdraw:chanroblesvirtuallawlibrary (1) $53,000 and forward the same to the Collector of Internal Revenue of Los Angeles, California; chan roblesvirtualawlibrary(2) $50,000.00, allegedly to defray expenses in resisting a new tax assessment against him in the United States; chan roblesvirtualawlibraryand (3) P65,000 for his expenses. Then too, the conjugal partnership had varried and extensive business interests and its assets were worth almost P4,000,000. The pleadings, motions, oppositions, rejoinders, and memoranda filed, and the evidence introduced, in the aforementioned cases in which Appellee was pitted against one of the most experienced and able members of the Philippine Bar were numerous, extensive and exhaustive. For instance, the record on appeal in one of those cases, namely, G. R. No. L-3687, consisted of 966 pages. In short, considering the character of the services rendered by the Appellee, the nature and importance of the issues in said litigations, the amount of labor, time (1941 to 1952) and trouble involved therein, the skill displayed in connection with said cases, the value of the property affected by the controversy, the professional character and standing of the Appellee, the risks assumed and the results obtained, we are of the opinion, and so hold, that the contract of services in question is neither harsh nor oppressive or inequitable. Under their second assignment that:chanroblesvirtuallawlibrary of error, Appellants maintain

The lower court erred in failing to find as a fact borne out by the evidence that the legal services of Attorney Claro M. Recto to Mrs. Esperanza P. de Harden,

payment, for which is sought by him in this case, have already been paid by his immediate execution pending appeal of the decision in Civil Case No. CFI-R59634 (SC-G.R. No. L- 3687), wherein he collected the sum of P176,000.00 for all such legal services. Said decision, however, states clearly that the aforementioned sum of P175,000 represents litis expensae, and the contract between the Appellee and Mrs. Harden explicitly declares that said litis expensae shall be in addition to Appellees share of 25% of the increase in the allowance of Mrs. Harden and his attorneys fees of 20% of her share in the conjugal partnership. The second assignment of error is, therefore, devoid of merit. Appellants, further contend, that:chanroblesvirtuallawlibrary 3. The lower court erred in holding that the inchoate share of the wife, Esperanza P. de Harden, in the undissolved and unliquidated conjugal partnership properties of the Harden spouses, is capable of certain valuation before such dissolution and liquidation, and summarily assessing the value of Mrs. Hardens share in such conjugal properties without proper evidence. 4. The lower court erred in awarding 20% of such inchoate share to Attorney Claro M. Recto from Mrs. Hardens interests in the Harden conjugal properties, summarily assessing such 20% inchoate share as of a value of P384,110.97, and ordering the payment of said sum to Attorney Recto in pursuance of the provisions of paragraph 3 of the Contract of Professional Services. Appellants arguments in support thereof may be summarized as follows:chanroblesvirtuallawlibrary The contract of services in question provides that Appellees contingent fees shall be 20% of the share of Mrs. Harden in the conjugal partnership. Pursuant to law, the share of Mrs. Harden shall be determined upon the liquidation of said partnership, which has not taken place, as yet. What is more, it cannot be effected until the dissolution of the marriage relation between Mr. and Mrs. Harden. Inasmuch as this relation subsists, it follows that the amount of attorneys fees due to Appellee herein should not have been determined in the decision appealed from. This line of argument overlooks the fact that said contract of services was made, principally, in contemplation of a suit for divorce that, according to Mrs. Harden, she intended to file before a competent court in California, and of the liquidation of the conjugal partnership between her and Mr. Harden. Had she filed said action for divorce and secured a decree of divorce, said conjugal partnership would have been dissolved and then liquidated, and the share of Mrs. Harden therein would have been fixed. However, this cannot take place, either now, or in the foreseeable future, owing to the aforementioned agreements between Mr. and Mrs. Harden, which were made for the evident purpose of defeating Appellees claim for attorneys fees. In other words, the occurrence, within the time contemplated by the parties bearing in mind the nature of, and the circumstances under which they entered into, said contract of services of the event upon which the amount of said fees depended, was rendered impossible by Mrs. Harden. Hence, whether such event be regarded

as a condition or as a period, she may not insist upon its occurrence, prior to the enforcement of the rights of the herein Appellee, for the condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment (Art. 1186, Civil Code) and the debtor shall lose every right to make use of the period when he violates any undertaking, in consideration of which the creditor agreed to the period. (Art. 1198, Civil Code.) It should be noted, also, that the compensation agreed upon for Appellees services, consists of three (3) parts, namely:chanroblesvirtuallawlibrary (a) 25% of the increase in the allowance of Mrs. Harden; chan roblesvirtualawlibrary(b) litis expensae; chan roblesvirtualawlibraryand (c) 20% of her share in the conjugal partnership. The first part was dealt with in the first paragraph of their contract of services. The second and third parts were the object of the second and third paragraphs, respectively. The first paragraph limited the rights of Appellee thereunder to two (2) years, in the event of termination of the case or amicable settlement thereof within two (2) years from the filing of the complaint. No such limitation appears in the second and third paragraphs of said contract. Hence, the same were intended by the parties to be fully operative under any and all conditions. It may not be amiss to add that the value of the properties involved has been assessed, not summarily, but after due notice and full dress hearing, in the course of which both parties introduced testimonial and documentary evidence. Appellants presented Exhibits 1 to 58, whereas those of the Appellee were so numerous that, having begun with Exhibit A, his last piece of documentary evidence was marked Exhibit 26 Ys. The transcript of the hearing, which lasted ten (10) days, covers over 220 pages. The other assignments of error made by Appellants herein are mere corollaries of those already disposed of, and, hence, no further discussion thereof is necessary. In conclusion, it appears that the assets of the conjugal partnership between Mr. and Mrs. Harden are reasonably valued at P3,841,109.70. One-half (1/2) thereof, representing the share of Mrs. Harden, is therefore, worth P1,920,554.85. Twenty percentum (20%) of this sum is P384,110.97, which is the contingent fee due to the Appellee, apart from the litis expensae already paid to him. Inasmuch as the Appellee has collected, also, the sum of P80,000.00, on account of said contingent fees, there results in his favor a balance of P304,110.97. Subject to this qualification, the decision appealed from is hereby affirmed, therefore, with costs against the Appellants. SO ORDERED. G.R. No. 79576 August 3, 1988 CELSO M. LARGA, Petitioner, vs. HON. SANTIAGO RANADA JR., Presiding Judge, Regional Trial Court of Makati, Branch 137, ASSISTANT FISCAL EDWIN CONDAYA, Prosecuting Fiscal of Branch 137, and HOME DEVELOPMENT MUTUAL FUND, Respondents. FELICIANO, J.:

This is a Petition for Certiorari, Prohibition and mandamus with Preliminary Injunction seeking to set aside the orders of respondent Judge dated 9 June 1987 and 24 June 1987 denying, respectively, petitioner Larga's Motion to Quash and his Motion for Reconsideration of the order denying his Motion to Quash, in Criminal Case No. 29102.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner Celso M. Larga, one of the owners and operators of the "Bistcor Diesel Calibration Service," issued in favor of respondent Home Development Mutual Fund ("HDMF") Security Bank & Trust Company Check No. 225466 in the amount of P3,840.00 as payment of the employer-employee contributions to the Pag-Ibig Fund pertaining to the period from January to April 1984. The check was, however, dishonored for being stale when it was presented for payment by the drawee bank. Demand was made upon petitioner Larga to replace the dishonored check or otherwise to pay the amount thereof in full, but he failed and refused to comply.chanroblesvirtualawlibrary chanrobles virtual law library It turns out that petitioner Larga failed to remit to the Pag-ibig Fund considerably more employer-employee contributions than just the P3,840.00. On 23 February 1987, Special Prosecutor Luis B. Pangilinan, Jr. filed an information against petitioner Larga for violation of Section 23 of Presidential Decree No. 1752, known as "The Home Development Mutual Fund Law of 1980," committed as follows: The undersigned Special Prosecutor accuses CELSO LARGA AND DIOSCORO LARGA of the crime of violation of Section 23 of P.D. 1752 committed as follows: chanrobles virtual law library That on or about the period from January 1984 up to the present in the Municipality of Makati, Metro Manila, Philippines and within the junction of this Honorable Court, the above named a being then the owners and operators of BIMOR DIESEL CALIBRATION SERVICE conspiring and confederating together and both of them mutually helping and aiding one another and with intent to defraud the HDMF, did then and there willfully, unlawfully and feloniously fail and refuse to remit to the HDMF the employer employee monthly contributions amounting to TWENTY SIX THOUSAND EIGHT HUNDRED EIGHTY (P26,880.00) PESOS, more or less, computed as of April 1986 despite regular deductions made on their monthly salaries.chanroblesvirtualawlibrary chanrobles virtual law library CONTRARY TO LAW. 1 chanrobles virtual law library On 10 April 1987, petitioner filed a Motion to Quash asserting as ground thereof that the criminal liability for the offense with which he was charged was extinguished with the issuance of Executive Order No. 90 dated 17 December 1986 by the President of the Philippines, since Section 10 thereof had made contributions to the Home Development Mutual Fund ("HDMF") voluntary. Consequently, petitioner argues, the respondent court had lost its jurisdiction

to try and sentence the petitioner for the crime charged in the above-quoted information.chanroblesvirtualawlibrary chanrobles virtual law library On 18 May 1987, private respondent HDMF filed an Opposition to the Motion to Quash, arguing that Section 10 of Executive Order No. 90 had merely amended the portion of Presidential Decree No. 1752 dealing with the nature of contributions to the Pag-Ibig Fund by making such contributions voluntary commencing from January 1987, and that non-remittance of contributions accruing before January 1987 was still punishable under Section 23 of Presidential Decree No. 1752.chanroblesvirtualawlibrary chanrobles virtual law library On 9 June 1987, the Regional Trial Court denied the Quash.chanroblesvirtualawlibrary chanrobles virtual law library Motion to

On 10 June 1987, petitioner filed a Reply to the Opposition to the Motion to Quash, there arguing that Section 1 0 (b) and (c) of Executive Order No. 90 and the Implementing Rules operated as an absolute repeal of Section 23 of Presidential Decree No. 1752. Considering that said repeal was favorable to the petitioner, he urged that it should be applied retroactively to cover his case.chanroblesvirtualawlibrary chanrobles virtual law library The Regional Trial Court treated the Reply to the Opposition as a Motion for Reconsideration of the Court's Order of 9 June 1987, which Motion the Court denied on 27 July 1987.chanroblesvirtualawlibrary chanrobles virtual law library In the instant Petition, petitioner urges once more that criminal liability for the acts with which he was charged has been extinguished and that the Regional Trial Court has lost its jurisdiction to try and sentence the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library Most briefly put, Presidential Decree No. 1752 created the HDMF which was funded by savings which covered government and private sector employees contributed for that purpose every month and by the counterpart amounts which employers contributed, based on a graduated percentage of the basic monthly pay of the employees. These percentage were: 1% - in 1981; 2% - in 1982; and 3% - in 1983 and onwards.chanroblesvirtualawlibrary chanrobles virtual law library Section 4 of P.D. No. 1752 prescribed mandatory coverage in the following terms: Section 4. Fund Coverage. - Coverage of the Fund shall be mandatory upon all employees covered by the Social Security System and the Government Service Insurance System, and their respective employers. Such coverage may be extended to other working groups, with or without employer contributions, as may be determined by the Board of Trustees.' (Italics supplied) chanrobles virtual law library

Section 23 of the same statute established penal sanctions for violations of the statute and of its Implementing Rules and Regulations in the following manner: Section 23. Penal Provisions. - Refusal or failure without lawful cause or with fraudulent intent to comply with the provisions of this Decree, as well as the implementing rules and regulations adopted by the Board of Trustees, particularly with respect to registration of employees, collection and remittance of employee savings as well as employer counterparts, or the correct amount due, within the time set in the implementing rules and regulations or specific call or extension made by the Fund Management, shall constitute an offense punishable by a fine of not less, but not more than twice, the amount involved or imprisonment of not more than six (6) years, or both such fine and imprisonment, in the discretion of the Court, apart from the civil liabilities andlor obligations of the offender or delinquent. When the offender is a corporation, the penalty shall be imposed upon the members of the governing board and the President or General Manager, without prejudice to the prosecution of related offenses under the Revised Penal Code and other laws, revocation and denial of operating rights and privileges in the Philippines, and deportation when the offender is a foreigner. (Emphasis supplied) Executive Order No. 90, which addresses and seeks to implement the National Shelter Program of the Government, defines the roles therein of the various government agencies involved in that Program. Executive Order No. 90 provides, among other things, as follows: Section 9. Funding Sources. - To enable the Social Security System, the Government Service Insurance System and the Home Development Mutual Fund to provide benefits to their members and to generate the necessary longterm funds for housing, a rationalization of all employer and employee contributions for all social insurance and provident fund benefits is hereby directed to include the following: chanrobles virtual law library a. Raising the Social Security System maximum compensation, inclusive of the Cost of Living Allowance, as basis for contributions from Pl,000.00 to P3,000.00; chanrobles virtual law library b. Making contributions to the Home Development Mutual Fund voluntary on the parts of both employees and employers; chanrobles virtual law library c. Instituting a single mandatory contribution rate for employees and employers for all social insurance programs.chanroblesvirtualawlibrary chanrobles virtual law library Sec. 10. Home Development Mutual Fund as Voluntary Fund. - In the implementation of the above rationalization program, the following shall govern the operations of the Home Development Mutual Fund: chanrobles virtual law library a. All existing contributions together with their accumulated earnings shall

be retained in the Home Development Mutual Fund until their maturity in accordance with existing rules and regulations.chanroblesvirtualawlibrary chanrobles virtual law library b. Membership in the fund for new private and government employees and their respective employers shall be voluntary after December 31, 1986. c. After December 31, 1986, existing members, both employees and employers, shall have the option to continue or discontinue new Fund contributions. d. To encourage provident fund savings for home acquisition, all government instrumentalities, agencies and corporations shall match the voluntary contributions made by government employees in accordance with existing ratios. Private employers are urged to match the contributions of their employees who opt to continue their membership in the Fund. (Emphasis supplied) It should be made clear, in the first place, that Sections 9 and 10 of Executive Order No. 90 had the effect of modifying Section 4 of P.D. No. 1752. That modification consisted in rendering fund coverage voluntary, or nonmandatory, after December 31, 1986. Clearly, Executive Order No. 90, did not by its terms purport to eliminate the obligatory character of fund coverage - or more precisely, the consequences of obligatory coverage accruing - prior to 1 January 1987. It follows that employer-employee contributions to the Fund which had accrued on or before December 31, 1986 still had to be remitted to the Fund. Obligations under the statute already accrued as of 1 January 1987 did not lose their positive law obligatory character. More specifically, the obligation to remit to the Fund previously accrued employer-employee contributions continued to exist and be exigible. Put a little differently, Sections 9 and 10 of Executive Order No. 90 amended Section 4 of P.D. No. 1752, not retroactively, but only prospectively. It is perhaps well to stress that there was no constitutional compulsion upon the legislative authority to amend Section 4 of P.D. No. 1752 retroactively. A court, moreover, cannot give retroactive effect to Sections 9 and 10 of Executive Order No. 90, even though favorable to the accused-petitioner, against the express terms of the amending provisions themselves . 2 chanrobles virtual law library It is equally clear that Executive Order No. 90 did not purport to "decriminalize" all prior violations of P.D. No. 1752 and its Implementing Rules and Regulations, and did not modify or repeal, whether expressly or impliedly, Section 23 of P.D. No. 1752. It is commonplace Teaming that implied repeals are not favored in law and are not casually to be assumed. The first effort of a court must always be to reconcile or adjust the provisions of one statute with those of another so as to give sensible effect to both provisions 3 Only where there is clear inconsistency and irreconcilable conflict between the provisions of two (2) statutes, may a court hold that the provisions later in point of time have impliedly repealed the earlier ones. 4 That is not the case here in respect of Sections 9 and 10 of E. O. No. 90 and Section 23 of P.D. No. 1752. It goes without saying that from 1 January 1987 onwards, refusal of an employee or an

employer to become or remain a member of the Pag-Ibig Fund is no longer a violation of Section 4 of P.D. No. 1752 and by the same token can no longer be the subject of criminal prosecution under Section 23 of P.D. No. 1752. However, failure to remit contributions accruing on or before 31 December 1986 in a timely manner, remains punishable as a violation of P.D. No. 1752 and of the Implementing Rules and Regulations adopted by the HDMF Board of Trustees. 5 In the instant case, petitioner was prosecuted for failure to remit to the HDMF employer-employee contributions which had accrued on or before April 1986. Indeed, it may be useful to note here that failure on the part of an employer to remit the voluntary contributions of its employees accruing after 1 January 1987, in accordance with the Implementing Rules and Regulations of Pag-Ibig Fund, also constitutes a violation punishable under Section 23 of P.D. No. 1752. 6 chanrobles virtual law library WHEREFORE, the Court Resolved to DISMISS the Petition for Certiorari, Prohibition and mandamus with Preliminary Injunction, for lack of merit. Costs against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. G.R. No. L-16704 March 17, 1962

VICTORIAS MILLING COMPANY, INC., Petitioner-Appellant, vs. SOCIAL SECURITY COMMISSION, Respondent-Appellee. BARRERA, J.: chanrobles virtual law library On October 15, 1958, the Social Security Commission issued its Circular No. 22 of the following tenor: . Effective November 1, 1958, all Employers in computing the premiums due the System, will take into consideration and include in the Employee's remuneration all bonuses and overtime pay, as well as the cash value of other media of remuneration. All these will comprise the Employee's remuneration or earnings, upon which the 3-1/2% and 2-1/2% contributions will be based, up to a maximum of P500 for any one month. Upon receipt of a copy thereof, petitioner Victorias Milling Company, Inc., through counsel, wrote the Social Security Commission in effect protesting against the circular as contradictory to a previous Circular No. 7, dated October 7, 1957 expressly excluding overtime pay and bonus in the computation of the employers' and employees' respective monthly premium contributions, and submitting, "In order to assist your System in arriving at a proper interpretation of the term 'compensation' for the purposes of" such computation, their observations on Republic Act 1161 and its amendment and on the general interpretation of the words "compensation", "remuneration" and "wages". Counsel further questioned the validity of the circular for lack of authority on the part of the Social Security Commission to promulgate it without the approval of the President and for lack of publication in the Official Gazette.chanroblesvirtualawlibrary chanrobles virtual law library Overruling these objections, the Social Security Commission ruled that Circular

No. 22 is not a rule or regulation that needed the approval of the President and publication in the Official Gazette to be effective, but a mere administrative interpretation of the statute, a mere statement of general policy or opinion as to how the law should be construed.chanroblesvirtualawlibrary chanrobles virtual law library Not satisfied with this ruling, petitioner comes to this appeal.chanroblesvirtualawlibrary chanrobles virtual law library Court on

The single issue involved in this appeal is whether or not Circular No. 22 is a rule or regulation, as contemplated in Section 4(a) of Republic Act 1161 empowering the Social Security Commission "to adopt, amend and repeal subject to the approval of the President such rules and regulations as may be necessary to carry out the provisions and purposes of this Act." chanrobles virtual law library There can be no doubt that there is a distinction between an administrative rule or regulation and an administrative interpretation of a law whose enforcement is entrusted to an administrative body. When an administrative agency promulgates rules and regulations, it "makes" a new law with the force and effect of a valid law, while when it renders an opinion or gives a statement of policy, it merely interprets a pre-existing law (Parker, Administrative Law, p. 197; Davis, Administrative Law, p. 194). Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are often times left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law. (Davis, op. cit., p. 194.) .chanroblesvirtualawlibrary chanrobles virtual law library A rule is binding on the courts so long as the procedure fixed for its promulgation is followed and its scope is within the statutory authority granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom (Davis, op. cit., 195-197). On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means.chanroblesvirtualawlibrary chanrobles virtual law library Circular No. 22 in question was issued by the Social Security Commission, in view of the amendment of the provisions of the Social Security Law defining the term "compensation" contained in Section 8 (f) of Republic Act No. 1161 which, before its amendment, reads as follows: . (f) Compensation - All remuneration for employment include the cash value of any remuneration paid in any medium other than cash except (1) that part of

the remuneration in excess of P500 received during the month; (2) bonuses, allowances or overtime pay; and (3) dismissal and all other payments which the employer may make, although not legally required to do so. Republic Act No. 1792 changed the definition of "compensation" to: (f) Compensation - All remuneration for employment include the cash value of any remuneration paid in any medium other than cash except that part of the remuneration in excess of P500.00 received during the month. It will thus be seen that whereas prior to the amendment, bonuses, allowances, and overtime pay given in addition to the regular or base pay were expressly excluded, or exempted from the definition of the term "compensation", such exemption or exclusion was deleted by the amendatory law. It thus became necessary for the Social Security Commission to interpret the effect of such deletion or elimination. Circular No. 22 was, therefore, issued to apprise those concerned of the interpretation or understanding of the Commission, of the law as amended, which it was its duty to enforce. It did not add any duty or detail that was not already in the law as amended. It merely stated and circularized the opinion of the Commission as to how the law should be construed.chanroblesvirtualawlibrary chanrobles virtual law library The case of People v. Jolliffe (G.R. No. L-9553, promulgated on May 30, 1959) cited by appellant, does not support its contention that the circular in question is a rule or regulation. What was there said was merely that a regulation may be incorporated in the form of a circular. Such statement simply meant that the substance and not the form of a regulation is decisive in determining its nature. It does not lay down a general proposition of law that any circular, regardless of its substance and even if it is only interpretative, constitutes a rule or regulation which must be published in the Official Gazette before it could take effect.chanroblesvirtualawlibrary chanrobles virtual law library The case of People v. Que Po Lay (50 O.G. 2850) also cited by appellant is not applicable to the present case, because the penalty that may be incurred by employers and employees if they refuse to pay the corresponding premiums on bonus, overtime pay, etc. which the employer pays to his employees, is not by reason of non-compliance with Circular No. 22, but for violation of the specific legal provisions contained in Section 27(c) and (f) of Republic Act No. 1161.chanroblesvirtualawlibrary chanrobles virtual law library We find, therefore, that Circular No. 22 purports merely to advise employersmembers of the System of what, in the light of the amendment of the law, they should include in determining the monthly compensation of their employees upon which the social security contributions should be based, and that such circular did not require presidential approval and publication in the Official Gazette for its effectivity.chanroblesvirtualawlibrary chanrobles virtual law library It hardly need be said that the Commission's interpretation of the amendment embodied in its Circular No. 22, is correct. The express elimination among the

exemptions excluded in the old law, of all bonuses, allowances and overtime pay in the determination of the "compensation" paid to employees makes it imperative that such bonuses and overtime pay must now be included in the employee's remuneration in pursuance of the amendatory law. It is true that in previous cases, this Court has held that bonus is not demandable because it is not part of the wage, salary, or compensation of the employee. But the question in the instant case is not whether bonus is demandable or not as part of compensation, but whether, after the employer does, in fact, give or pay bonus to his employees, such bonuses shall be considered compensation under the Social Security Act after they have been received by the employees. While it is true that terms or words are to be interpreted in accordance with their well-accepted meaning in law, nevertheless, when such term or word is specifically defined in a particular law, such interpretation must be adopted in enforcing that particular law, for it can not be gainsaid that a particular phrase or term may have one meaning for one purpose and another meaning for some other purpose. Such is the case that is now before us. Republic Act 1161 specifically defined what "compensation" should mean "For the purposes of this Act". Republic Act 1792 amended such definition by deleting same exemptions authorized in the original Act. By virtue of this express substantial change in the phraseology of the law, whatever prior executive or judicial construction may have been given to the phrase in question should give way to the clear mandate of the new law.chanroblesvirtualawlibrary chanrobles virtual law library IN VIEW OF THE FOREGOING, the Resolution appealed from is hereby affirmed, with costs against appellant. So ordered. G.R. No. L-5221 BENITO FERRER Y RODRIGUEZ, petitioner, vs. POTENCIANO PECSON, Judge of the Court of First Instance of Manila and THE PEOPLE OF THE PHILIPPINES, respondents. Maximo Calalang for petitioner. Assistant Fiscal Pedro Ma. Sison, Jr. for respondents. , J.: On March 1, 1949, the petitioner Benito Ferrer Y Rodriguez was accused before the municipal court of Manila of serious physical injuries through reckless imprudence under criminal case No. 10050 of said court. The complaint alleged that on February 2, 1949, in the City of Manila, petitioner, driver of a jeepney, operated it along Dapitan Street in a careless, reckless and imprudent manner as a result of which said jeepney driven by him sideswiped another jeepney thereby causing a collision, inflicting on a passenger named Avelino Tiu physical injuries of fracture compound, communited, middle third, humerus left; fracture compound, communited, neck, radius, left, fracture, simple, middle third, radius, ulna left, which injuries have required and will require medical attendance for a period of from six (6) to eight (8) months and have prevented and will prevent the said offended party from engaging in his customary labor during the same period of time. After trial the Municipal Court

of Manila found him guilty and sentenced him to three (3) months of arresto mayor. Defendant appealed the case to the Court of First Instance of Manila. On November 27, 1950, petitioner through counsel filed a motion to dismiss the case on the ground that the Municipal Court of Manila had no jurisdiction over the offense and, consequently, the court of first instance had no appellate jurisdiction. The motion to dismiss was denied by Judge Potenciano Pecson presiding over the court of first instance, but upon motion for reconsideration, the same judge in his order of June 6, 1951 (Annex D), granted the motion for reconsideration and dismiss the case for lack of jurisdiction. On a motion for reconsideration filed by the Fiscal, Judge Pecson in his order dated August 29, 1951 (Annex E), revoked his order of June 6, 1951 (Annex D) and declared his first order of December 14, 1950, denying the motion to dismiss as in force. Counsel for defendant Ferrer asked for a reconsideration of this order and upon denial of his motion by order of the respondent judge dated October 31, 1951 (Annex I), has filed the present petition for certiorari to revoked the order of August 29, 1951 (Annex E), and to reinstate the order of June 6, 1951 (Annex D). After a careful study of this case, we are inclined to agree with the petitioner. The jurisdiction of the court to try a criminal case is to be determined by the law at the time of the institution of the action, (People vs. Pegarum, 58 Phil. 715). At the time that the complaint in this case was filed on March 1, 1949, in the Municipal Court of Manila, the law penalizing the act imputed to the petitioner was the Revised Motor Vehicle Law (Act No. 3932), section 67 of which provides that if as a result of negligence or reckless or unreasonably fast driving any accident occurs resulting in death or serious bodily injury to any person, the one responsible upon conviction shall be punished by imprisonment for not less than fifteen (15) days nor more than six (6) years in the discretion of the court. According to a series of cases decided by this court, among them that of Eustaquio vs. Liwag (86 Phil. 540) and People vs. Moreno (60 Phil. 712), an act of negligence or reckless or unreasonably fast driving resulting in death or serious physical injuries to any person, should be prosecuted under section 67 of the Revised Motor Vehicle Law and not under the Revised Penal Code. The criminal jurisdiction of a justice of the peace or a municipal court as defined in the Judiciary Act of 1948 approved in June 1948, is confined to offenses in which the penalty is not more than six (6) months. From this it is clear that the Municipal Court of Manila had no jurisdiction over this case where a maximum penalty of six (6) years may be imposed; and if it had no original jurisdiction, the court of first instance presided over by Judge Pecson had likewise no appellate jurisdiction. It is true that section 67 of the Revised Motor Vehicle Law (Act No. 3932) was amended by section 16 of Republic Act No. 587 which went into effect on January 1, 1951, in the sense that acts of negligence or reckless or unreasonably fast driving resulting in death or serious bodily injury upon any person shall be prosecuted and punished under the provisions of the Revised

Penal Code. But this act may not be given retroactive effect so as to confer on the municipal court jurisdiction which it did not have when it tried and decided the case against petitioner. It may be true that the provisions of the penal code are more favorable to the petitioner in this case as regards the penalty, but when the very accused (herein petitioner) far from invoking the benefits of said Republic Act No. 587, disregards it and instead, invokes the Revised Motor Vehicle Law (Act No. 3932) which was in force at the time that the acts imputed to him were committed, at least for that reason alone the question of retroactivity cannot and will not be considered. Respondents contend that under the Judiciary Act of 1948 as well as the Charter of the City of Manila, the Municipal Court of Manila is given jurisdiction to try criminal cases of assaults where the intent to kill is not evident from the evidence, regardless of the penalty attached to the crime. But it is obvious that acts of negligence in the operation of a motor vehicle which cause a collision and result in physical injuries can hardly be regarded as assaults without the intent to kill. For the foregoing reasons, the petition for certiorari is hereby granted and the order of respondent judge of June 6, 1951 (Annex D) dismissing the case for lack of jurisdiction is hereby reinstated. No costs. G.R. No. L-37914 MANUEL RODRIGUEZ, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. The petitioner in his own behalf. Attorney-General Jaranilla for respondent. VILLA-REAL, J.: This is an original petition for habeas corpus filed by prisoner Manuel Rodriguez, praying that after proper proceedings an order be issued requiring the respondent Director of Prisons to immediately set him at liberty, on the ground that he is illegally detained, inasmuch as he has already served the penalty corresponding to his offense under the provisions of the Revised Penal Code. The pertinent facts necessary for a solution of the question raised in the present petition are as follows: Upon arraignment for the crime of estafa in the Court of First Instance of Manila, the petitioner spontaneously pleaded guilty, whereupon the trial court rendered a judgment of conviction, and there being no circumstance to modify his criminal liability, imposed upon him the minimum of the medium degree of the penalty of presidio correccional in its minimum and medium degrees, in accordance with the provisions of paragraph 3, article 534 of the old Penal Code, that is, one year, eight months, and twenty- one days of presidio correccional, to pay an indemnity of P647.70, and to suffer subsidiary imprisonment in case of insolvency.

The first question to decide here is whether or not the provisions of the Revised Penal Code with reference to the crime of estafa, of which the petitioner was convicted, are more favorable to him than those of the old Penal Code. The penalty of one year, eight months, and twenty-one days imposed upon said petitioner by the trial court is the minimum of the medium degree of the penalty of presidio correccional in its minimum and medium degrees, ranging from six months and one day to four years and two months, as provided in article 534, paragraph 3, of the old Penal Code as amended by Act No. 3244. The penalty provided in the Revised Penal Code, article 315, paragraph 3, for the same offense is arresto mayor in the maximum degree to prision correccional in the minimum degree, that is from four months and one day to two years and four months, of which the medium degree is from one year and one day to one year and eight months, which is more lenient and hence more favorable to the petitioner than the same degree of penalty imposed by article 534, paragraph 3, of the former Penal Code cited above. Article 22 of the Revised penal Code provides: ART. 22. Retroactive effect of penal laws. ? 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 the same. As the provisions of the aforementioned Revised Penal Code with reference to the crime of estafa here in question are more favorable to the said petitioner, and as the latter is not habitual criminal, the more lenient penalty provided in the Revised Penal Code must be imposed upon him. The second question to decide is whether or not in habeas corpus proceedings the mitigating circumstance of voluntary confession of guilt established for the first time in article 13, paragraph 7, of the Revised Penal Code, can be taken into consideration. The mitigating circumstances, as their name indicates, serve to lessen the penalty fixed by law, and whenever they are present courts are bound to take them into consideration, according to article 77, in connection with article 80, paragraph 3, of the old Penal Code, and article 62, in connection with article 64, paragraph 2, of the Revised Penal Code. In the present case, the trial court could not legally take into account the mitigating circumstance of voluntary confession of guilt, established in article 13, paragraph 7, of the new Penal Code, because it did not exist in the old Penal Code under which the petitioner herein was prosecuted and sentenced. Article 22 of the Revised Penal code, above quoted, extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make use of such benefits is the writ of habeas corpus, inasmuch as, if the penalty imposed upon them under the former penal law was decreased by the revised

code, and the latter has retroactive effect, the excess has become illegal. Now then, it appearing from the sentence that there was a voluntary confession of guilt, and that it has served as the basis of conviction, and taking into consideration that had such circumstance been classified by the old Penal Code as a mitigating circumstance, the trial court would have been bound to give it effect, could we now disregard it without failing in our duty in order to give effect to the positive provisions of the law which make all penal laws retroactive in so far as they favor the accused, who is not an habitual criminal, there being no necessity to review the proceeding? In the case before us, the voluntary confession of guilt appears in the sentence and has served as the basis of the defendants conviction by the trial court; for which reason we must take it into account, in order to give retroactive effect to article 22, cited above of the Revised Penal Code for the benefit of the petitioner herein. As we have seen, the aforesaid petitioner was sentenced to one year, eight months, and twenty-one days of presidio correccional, to pay an indemnity of P647.70, and to suffer subsidiary imprisonment in case of insolvency, which is the minimum of the medium degree (from one year, eight months, and twentyone days to two years, eleven months, and ten days) of the penalty of presidio correccional in the minimum and medium degrees (from six months and one day to four years and two months), prescribed by article 534, paragraph 3, of the old Penal Code, as amended by Act No. 3244. The penalty provided in article 315, paragraph 3, of the Revised Penal Code for the same crime is arresto mayor in the maximum degree to prision correccional in the minimum degree, that is, four months and one day to two years and four months, which is more lenient than that provided in the old Penal Code. Taking into account the mitigating circumstance of voluntary confession of guilt, without any aggravating circumstance to offset it, the penalty provided in the Revised Penal Code must be imposed in the minimum degree, that is, four months and one day to one year (article 80, paragraph 2, of the old Penal Code, and article 64 of the Revised Penal Code), and inasmuch as it is the practice of Courts of First Instance in the exercise of their discretion (article 81, paragraph 7, as amended by section 1 of Act No. 2298) to fix the penalty in the minimum period, and the trial court having fixed the penalty imposed upon the petitioner in the minimum period of the medium degree, we must also fix it accordingly, that is, four months and one day of arresto mayor, which is the minimum period of the minimum degree of the penalty provided by the Revised Penal Code. The herein petitioner having already served seven months and twenty-nine days of imprisonment, as against the penalty of four months and twenty-one days, with all possible allowances, in accordance with the Revised Penal Code, he has already more than served his sentence and is entitled to be released immediately. For the foregoing considerations, we are of opinion and hold that when in a sentence of conviction it appears that the defendant voluntarily confessed his guilt in court before the prosecution has presented its evidence, such voluntary confession shall be taken into account in a petition for habeas corpus to give effect to article 22 of the Revised Penal Code.

Wherefore, the herein petitioner being illegally detained, the petition is granted and the respondent Director of Prison is hereby ordered to set him at liberty immediately, without special pronouncement of costs. So ordered. G.R. No. 119987-88 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO CORDERO, respondents. KAPUNAN, J.:The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death? , J.: The sole issue in the case at bench involves a question of law. After finding that an accused individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion in imposing either the penalty of Reclusion Perpetua or Death? The facts antecedent to the case before this Court, as narrated by petitioner, 1 involve the perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men: On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen floating along Del Pan St. near the corner of Lavesares St., Binondo, Manila. When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left ear, lacerations on her genitalia, and with her head bashed in. On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071, reads: That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one alias LANDO and other persons whose true names, identifies and present whereabouts are still unknown and helping one another, with treachery, taking advantage of their

superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latters will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a. LANDO and others, caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. Booster, of 1198 Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. Lando, of 1274 Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. Curimao, also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. Joel, of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138, allegedly committed as follows: That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring and confederating with ABUNDIO LAGUNDAY Alias JR, JEOFREY and HENRY LAGARTO y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength and nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latters will and consent and on said occasion the said accused together with their confederates ABUNDIO LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately thereafter. CONTRARY TO LAW. The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided over by respondent Judge. Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12, 1994), pleaded Not Guilty. Abundio Lagunday was dropped from the Information. After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a decision 2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced

both accused with the penalty of reclusion perpetua with all the accessories provided for by law. 3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995, filed a Motion for Reconsideration, praying that the Decision be modified in that the penalty of death be imposed against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads: The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila. WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein accused is hereby reiterated. The Clerk of this Court is hereby directed to transmit the complete records of these cases, together with the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure. SO ORDERED. Hence, the instant petition. The trial courts finding of guilt is not at issue in the case at bench. The basis of the trial courts determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to the instant case relevant to the determination of the legal question at hand, i.e., whether or not the respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding the accused guilty of the crime of Rape with Homicide. We find for petitioner. Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, 4 resist encroachments by governments, political parties, 5 or even the interference of their own personal beliefs. In the case at bench, respondent judge, after weighing the evidence of the prosecution and the defendant at trial found the accused guilty beyond

reasonable doubt of the crime of Rape with Homicide. Since the law in force at the time of the commission of the crime for which respondent judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions. Section 11 of R.A. No. 7659 provides: Sec. 11. Article 335 of the same Code is hereby amended to read as follows: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation. 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. . . . 6 Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty of Reclusion Perpetua, it allows judges the discretion depending on the existence of circumstances modifying the offense committed to impose the penalty of either Reclusion Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these three instances. The law plainly and unequivocably provides that [w]hen by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. The provision leaves no room for the exercise of discretion on the part of the trial judge to impose a penalty under the circumstances described, other than a sentence of death. We are aware of the trial judges misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and welldefined instances. The discomfort faced by those forced by law to impose the

death penalty is an ancient one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of laws. In People vs. Limaco 7 we held that: [W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the law-making body. 8 Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose the proper penalty and civil liability provided for by the law on the accused. 9 This is not a case of a magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the penalty of Death. WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with respondent judges finding that the private respondents in the instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty. SO ORDERED. G.R. No. 148311. March 31, 2005 IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. DECISION

SANDOVAL-GUTIERREZ, J.: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to "Garcia," her mothers surname, and that her surname "Garcia" be changed to "Catindig," his surname. On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus: "After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED."4 On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name.

On May 28, 2001,6 the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mothers surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that "the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother."7 We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.8 It is both of personal as well as public interest

that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.9 Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: "Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall

be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x" Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x" However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus "Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child

may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion."12 (Emphasis supplied) In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13 Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree

of adoption.14 The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the adopted.20 One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23 Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount consideration,26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.27 Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law."28 Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname "GARCIA" as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. G.R. No. ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON, respondents. MELENCIO-HERRERA, J.: In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioners business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right

to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had no community property as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding. Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. Certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction.[[1]] Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondents claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. [[3]] As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings: xxx xxx xxx You are hereby authorized to accept service of Summons, to file an Answer,

appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. That there are no community obligations to be adjudicated by the court. xxx xxx xxx There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,[[5]] only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.[[6]] In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own countrys Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wifes obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDERED. G.R. No. 80116

IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents. REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980.[[1]] Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982.[[2]] Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 8315866.[[3]] On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction.[[4]] On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983. Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence.[[5]] However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986,

directing the filing of two complaints for adultery against the petitioner.[[6]] The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled People of the Philippines vs. Imelda Pilapil and William Chia, docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, People of the Philippines vs. Imelda Pilapil and James Chua, docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court.[[7]] On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed.[[8]] A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings and to elevate the entire records of both cases to his office for review.[[9]] Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon.[[10]] As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice.[[11]] A motion to quash was also filed in the same case on the ground of lack of jurisdiction,[[12]] which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment.[[13]] Later, private respondent entered a plea of not guilty.[[14]] On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint.[[15]] On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently,

on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and, upholding petitioners ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner.[[16]] We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code,[[17]] the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called private crimes or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial.[[20]] Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison detre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.[[21]] In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion.[[22]] In the cited Loftus case, the Supreme Court of Iowa held that No prosecution for adultery can be commenced except on the complaint of the husband or wife. Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,[[24]] after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. [[25]] Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family,

which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery although the marriage be afterwards declared void, the Court merely stated that the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect. Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondents invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited,[[27]] must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioners motion to quash is SET ASIDE and another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED. [G.R. No. 124371. November 23, 2000] PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents. DECISION PARDO, J.: The Case The case raises a conflict of laws issue. What is before us is an appeal from the decision of the Court of Appeals[1] modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City[2] declaring respondent Alicia F. Llorente (herinafter referred to as

Alicia), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as Lorenzo) may have acquired during the twenty-five (25) years that they lived together as husband and wife. The Facts The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957.[3] On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as Paula) were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur.[4] Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur.[5] On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York.[6] Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U. S. Navy, to visit his wife and he visited the Philippines.[7] He discovered that his wife Paula was pregnant and was living in and having an adulterous relationship with his brother, Ceferino Llorente.[8] On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as Crisologo Llorente, with the certificate stating that the child was not legitimate and the line for the fathers name was left blank.[9] Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzos salary and all other obligations for Paulas daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paulas father and stepmother. The agreement was notarized by Notary Public Pedro Osabel.[10] Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce.[11]

On December 4, 1952, the divorce decree became final.[12] In the meantime, Lorenzo returned to the Philippines. On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila.[13] Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. [14] From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife.[15] Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente.[16] On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit: (1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal properties and other movables or belongings that may be found or existing therein; (2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur; (3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196 and 165188, both of the Registry of Deeds of the province of Rizal, Philippines; (4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could only be sold, ceded, conveyed and disposed of by and among themselves; (5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of age, if of age; (6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond;

(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me; (8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorentes Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament.[17] On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate.[18] On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive.[19] On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate.[20] On June 11, 1985, before the proceedings could be terminated, Lorenzo died. [21] On September 4, 1985, Paula filed with the same court a petition[22] for letters of administration over Lorenzos estate in her favor. Paula contended (1) that she was Lorenzos surviving spouse, (2) that the various property were acquired during their marriage, (3) that Lorenzos will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property.[23] On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR755), a petition for the issuance of letters testamentary.[24] On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paulas petition in Sp. Proc. No. IR-888.[25] On November 6, 13 and 20, 1985, the order was published in the newspaper Bicol Star.[26] On May 18, 1987, the Regional Trial Court issued a joint decision, thus: Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1). On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and

then one-third should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares. Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the court and to perform all orders of this court by her to be performed. On the other matters prayed for in respective petitions for want of evidence could not be granted. SO ORDERED.[27] In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision.[28] On September 14, 1987, the trial court denied Alicias motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children legitimate or otherwise of Lorenzo since they were not legally adopted by him.[29] Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free portion of the estate.[30] On September 28, 1987, respondent appealed to the Court of Appeals.[31] On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise: WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired during the twenty-five (25) years of cohabitation. SO ORDERED.[32] On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision.[33] On March 21, 1996, the Court of Appeals,[34] denied the motion for lack of merit. Hence, this petition.[35] The Issue Stripping the petition of its legalese and sorting through the various arguments raised,[36] the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente? We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased. The Applicable Law

The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted and undisputed. Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law. The Civil Code clearly provides: Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (emphasis ours) True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.[37] While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was referred back to the law of the decedents domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that American law follows the domiciliary theory hence, Philippine law applies when determining the validity of Lorenzos will.[38] First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a resident.[39] Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial courts opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal circumstances here obtaining. Validity of the Foreign Divorce

In Van Dorn v. Romillo, Jr.[40] we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals,[41] that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could very well lose her right to inherit from him. In Pilapil v. Ibay-Somera,[42] we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these doctrines, the decision of the Court of Appeals must be reversed.[43] We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court. Validity of the Will The Civil Code provides: Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. (underscoring ours) The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on family rights and duties, status, condition and legal capacity.[44] Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.[45] Having thus ruled, we find it unnecessary to pass upon the other issues raised. The Fallo WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE. In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for

the County of San Diego, made final on December 4, 1952. Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorentes will and determination of the parties successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court. No costs. SO ORDERED. [G.R. No. 138322. October 2, 2001] GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent. DECISION PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026 AF. The assailed Decision disposed as follows: WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties.[3] The assailed Order denied reconsideration of the above-quoted Decision. The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On May 18, 1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian Citizenship issued by the Australian government.[6] Petitioner -- a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.[7] In their application for a marriage license, respondent was declared as single and Filipino.[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.[9] On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondents marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;[12] thus, he was legally capacitated to marry petitioner in 1994. On July 7, 1998 -- or about five years after the couples wedding and while the suit for the declaration of nullity was pending -- respondent was able to secure a divorce decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably broken down.[13] Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no cause of action.[14] The Office of the Solicitor General agreed with respondent.[15] The court marked and admitted the documentary evidence of both parties.[16] After they submitted their respective memoranda, the case was submitted for resolution.[17] Thereafter, the trial court rendered the assailed Decision and Order. Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more marital union to nullify or annul. Hence, this Petition.[18] Issues Petitioner submits the following issues for our consideration: 1 The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha

Samson thereby capacitating him to contract a second marriage with the petitioner. 2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioners marriage to the respondent 3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case. 4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. 5 The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts.[19] The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Courts Ruling The Petition is partly meritorious. First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial courts recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of the foreign law to show the conformity of the

marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a Filipino and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.[26] A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.[27] A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law.[28] Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.[29] Presentation solely of the divorce decree is insufficient. Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx xxx xxx

(5) If previously married, how, when and where the previous marriage was dissolved or annulled; xxx xxx x x x

ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery

of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons. Respondent, on the other hand, argues that the Australian divorce decree is a public document -- a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.[30] A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. [31] The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.[32] Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested[33] by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. [34] The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.[35] However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated. Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.[36] The trial court ruled that it was admissible, subject to petitioners qualification.[37] Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.[38] Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.[39] Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.[40] Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign

judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.[42] Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.[43] Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.[44] The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. Second Issue: Respondents Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondents contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.[45] There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.[46] Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from marrying again. The court may allow a remarriage only after proof of good behavior.[47] On its face, the herein Australian divorce decree contains a restriction that reads: 1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws. Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.[50] As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint;[51] (b) Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recio and Editha D. Samson was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;[57] (c) Exhibit 3 Certificate of Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.[60] Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioners contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioners prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under

Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondents legal capacity to marry petitioner; and failing in that, of declaring the parties marriage void on the ground of bigamy, as above discussed. No costs. SO ORDERED. G.R. No. 142820 June 20, 2003

WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of Makati RTC, Branch 149, respondents. QUISUMBING, J.: At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree obtained abroad by petitioner. In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the property settlement of the spouses and the custody of their children. Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987, respectively. On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case to the RTC. Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-Blankenese, promulgated on December 16, 1997. The decree provides in part: [T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997: The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of Hamburg-Altona is hereby dissolved. The parental custody for the children Carolynne Roehr, born 18 November 1981 Alexandra Kristine Roehr, born on 25 October 1987 is granted to the father. The litigation expenses shall be assumed by the Parties.9 In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that the trial court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had already been promulgated dissolving the marriage of petitioner and private respondent. On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the purpose of determining the issues of custody of children and the distribution of the properties between petitioner and private respondent. On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the ground that there is nothing to be done anymore in the instant case as the marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the decree of divorce promulgated by the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce had already been recognized by the RTC in its order of July 14, 1999, through the implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with the capacity to remarry under the Philippine law. On September 30, 1999, respondent judge issued the assailed order partially setting aside her order dated July 14, 1999 for the purpose of tackling the

issues of property relations of the spouses as well as support and custody of their children. The pertinent portion of said order provides: Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru counsel which was opposed by respondent and considering that the second paragraph of Article 26 of the Family Code was included as an amendment thru Executive Order 227, to avoid the absurd situation of a Filipino as being still married to his or her alien spouse though the latter is no longer married to the Filipino spouse because he/she had obtained a divorce abroad which is recognized by his/her national law, and considering further the effects of the termination of the marriage under Article 43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the property relations of the spouses, and the support and custody of their children, the Order dismissing this case is partially set aside with respect to these matters which may be ventilated in this Court. SO ORDERED.11 (Emphasis supplied.) Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge in an order dated March 31, 2000.12 Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of respondent judge. He cites as grounds for his petition the following: 1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by 1997 Rules of Civil Procedure.13 2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg, Germany.14 3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the Petition for Annulment of Marriage and in the Divorce petition, and the custody of the children had already been awarded to Petitioner Wolfgang Roehr.15 Pertinent in this case before us are the following issues: 1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September 30, 1999, which partially modified her order dated July 14, 1999; and 2. Whether or not respondent judge gravely abused her discretion when she assumed and retained jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree from a German court. On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides:

Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.) Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying the motion, or ordering the amendment of the pleading. Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999 because it had not yet attained finality, given the timely filing of respondents motion for reconsideration. Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which provides: Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the judgment or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order accordingly. Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear to the court to affect the issues as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest. (Emphasis supplied.) It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet attained finality. Considering that private respondent filed a motion for reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still be modified. Moreover, in Saado v. Court of Appeals,16 we held that the court could modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its decision unjust and inequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory17 and when it becomes imperative in the higher interest of justice or when supervening events warrant it.18 In our view, there are even more compelling reasons to do so when, as in this case, judgment has not yet attained finality. Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she partially set aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce decree from the Court of First Instance of Hamburg, Germany.

In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized the validity of a divorce obtained by a German citizen in his country, the Federal Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. In this case, the divorce decree issued by the German court dated December 16, 1997 has not been challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court recognized said decree to be valid and binding, thereby endowing private respondent the capacity to remarry. Thus, the present controversy mainly relates to the award of the custody of their two children, Carolynne and Alexandra Kristine, to petitioner. As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children, must still be determined by our courts.23 Before our courts can give the effect of res judicata to a foreign judgment, such as the award of custody to petitioner by the German court, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit: SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce the judgment is as follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing; (b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is essential that there should be an opportunity to challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the contrary.24 In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to have parental custody of their two children. The proceedings in the German court were summary. As to what was the extent of private respondents participation in the proceedings in the German court, the records remain unclear. The divorce decree itself states that neither has she commented on the proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner who was represented by two lawyers, private respondent had no counsel to assist her in said proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision to the effect that when a couple lived separately

for three years, the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending spouse was. Absent any finding that private respondent is unfit to obtain custody of the children, the trial court was correct in setting the issue for hearing to determine the issue of parental custody, care, support and education mindful of the best interests of the children. This is in consonance with the provision in the Child and Youth Welfare Code that the childs welfare is always the paramount consideration in all questions concerning his care and custody. 28 On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her jurisdiction when she claimed cognizance of the issue concerning property relations between petitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any conjugal or community property nor have they incurred any debts during their marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief warranted by the allegations and the proof.30 Given the factual admission by the parties in their pleadings that there is no property to be accounted for, respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy. In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two children born of the union between petitioner and private respondent. Private respondent erred, however, in claiming cognizance to settle the matter of property relations of the parties, which is not at issue. WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court has jurisdiction over the issue between the parties as to who has parental custody, including the care, support and education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial court for continuation of appropriate proceedings. No pronouncement as to costs. SO ORDERED. G.R. No. 152577 September 21, 2005 REPUBLIC OF THE PHILIPPINES, Petitioners, vs. CRASUS L. IYOY, Respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the Decision of the Court of Appeals in CAG.R. CV No. 62539, dated 30 July 2001,1 affirming the Judgment of the

Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB20077, dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines. The proceedings before the RTC commenced with the filing of a Complaint3 for declaration of nullity of marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City. As a result of their union, they had five children Crasus, Jr., Daphne, Debbie, Calvert, and Carlos who are now all of legal ages. After the celebration of their marriage, respondent Crasus discovered that Fely was "hot-tempered, a nagger and extravagant." In 1984, Fely left the Philippines for the United States of America (U.S.A.), leaving all of their five children, the youngest then being only six years old, to the care of respondent Crasus. Barely a year after Fely left for the U.S.A., respondent Crasus received a letter from her requesting that he sign the enclosed divorce papers; he disregarded the said request. Sometime in 1985, respondent Crasus learned, through the letters sent by Fely to their children, that Fely got married to an American, with whom she eventually had a child. In 1987, Fely came back to the Philippines with her American family, staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because he was afraid he might not be able to bear the sorrow and the pain she had caused him. Fely returned to the Philippines several times more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation of their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued to live with her American family in New Jersey, U.S.A. She had been openly using the surname of her American husband in the Philippines and in the U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she was named as "Mrs. Fely Ada Micklus." At the time the Complaint was filed, it had been 13 years since Fely left and abandoned respondent Crasus, and there was no more possibility of reconciliation between them. Respondent Crasus finally alleged in his Complaint that Felys acts brought danger and dishonor to the family, and clearly demonstrated her psychological incapacity to perform the essential obligations of marriage. Such incapacity, being incurable and continuing, constitutes a ground for declaration of nullity of marriage under Article 36, in relation to Articles 68, 70, and 72, of the Family Code of the Philippines. Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein that she was already an American citizen since 1988 and was now married to Stephen Micklus. While she admitted being previously married to respondent Crasus and having five children with him, Fely refuted the other allegations made by respondent Crasus in his Complaint. She explained that she was no more hot-tempered than any normal person, and she may had been indignant at respondent Crasus on certain occasions but it was because of the latters drunkenness, womanizing, and lack of sincere effort to find employment and to contribute to the maintenance of their household. She could not have been extravagant since the family hardly had enough money for basic needs. Indeed, Fely left for abroad for financial reasons as respondent Crasus had no job and what she was then earning as the sole breadwinner in

the Philippines was insufficient to support their family. Although she left all of her children with respondent Crasus, she continued to provide financial support to them, as well as, to respondent Crasus. Subsequently, Fely was able to bring her children to the U.S.A., except for one, Calvert, who had to stay behind for medical reasons. While she did file for divorce from respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting him to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely married her American husband and acquired American citizenship. She argued that her marriage to her American husband was legal because now being an American citizen, her status shall be governed by the law of her present nationality. Fely also pointed out that respondent Crasus himself was presently living with another woman who bore him a child. She also accused respondent Crasus of misusing the amount of P90,000.00 which she advanced to him to finance the brain operation of their son, Calvert. On the basis of the foregoing, Fely also prayed that the RTC declare her marriage to respondent Crasus null and void; and that respondent Crasus be ordered to pay to Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary damages, attorneys fees, and litigation expenses. After respondent Crasus and Fely had filed their respective Pre-Trial Briefs,5 the RTC afforded both parties the opportunity to present their evidence. Petitioner Republic participated in the trial through the Provincial Prosecutor of Cebu.6 Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his own testimony on 08 September 1997, in which he essentially reiterated the allegations in his Complaint;7 (2) the Certification, dated 13 April 1989, by the Health Department of Cebu City, on the recording of the Marriage Contract between respondent Crasus and Fely in the Register of Deeds, such marriage celebration taking place on 16 December 1961;8 and (3) the invitation to the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American husbands surname, Micklus.9 Felys counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses, namely, Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular officers of the Philippines in New York and California, U.S.A, where the said witnesses reside. Despite the Orders12 and Commissions13 issued by the RTC to the Philippine Consuls of New York and California, U.S.A., to take the depositions of the witnesses upon written interrogatories, not a single deposition was ever submitted to the RTC. Taking into account that it had been over a year since respondent Crasus had presented his evidence and that Fely failed to exert effort to have the case progress, the RTC issued an Order, dated 05 October 1998,14 considering Fely to have waived her right to present her evidence. The case was thus deemed submitted for decision. Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of respondent Crasus and Fely null and void ab initio, on the basis of the following findings

The ground bearing defendants psychological incapacity deserves a reasonable consideration. As observed, plaintiffs testimony is decidedly credible. The Court finds that defendant had indeed exhibited unmistakable signs of psychological incapacity to comply with her marital duties such as striving for family unity, observing fidelity, mutual love, respect, help and support. From the evidence presented, plaintiff adequately established that the defendant practically abandoned him. She obtained a divorce decree in the United States of America and married another man and has establish [sic] another family of her own. Plaintiff is in an anomalous situation, wherein he is married to a wife who is already married to another man in another country. Defendants intolerable traits may not have been apparent or manifest before the marriage, the FAMILY CODE nonetheless allows the annulment of the marriage provided that these were eventually manifested after the wedding. It appears to be the case in this instance. Certainly defendants posture being an irresponsible wife erringly reveals her very low regard for that sacred and inviolable institution of marriage which is the foundation of human society throughout the civilized world. It is quite evident that the defendant is bereft of the mind, will and heart to comply with her marital obligations, such incapacity was already there at the time of the marriage in question is shown by defendants own attitude towards her marriage to plaintiff. In sum, the ground invoked by plaintiff which is defendants psychological incapacity to comply with the essential marital obligations which already existed at the time of the marriage in question has been satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant Fely Ada Rosal Iyoy, firmly. Going over plaintiffs testimony which is decidedly credible, the Court finds that the defendant had indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital obligations. These are her excessive disposition to material things over and above the marital stability. That such incapacity was already there at the time of the marriage in question is shown by defendants own attitude towards her marriage to plaintiff. And for these reasons there is a legal ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy null and void ab initio.15 Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its Decision, dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible error therein. It even offered additional ratiocination for declaring the marriage between respondent Crasus and Fely null and void, to wit Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently residing in the United States. Plaintiff-appellee categorically stated this as one of his reasons for seeking the declaration of nullity of their marriage

Article 26 of the Family Code provides: "Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. "WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE LAW." The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she has obtained a divorce abroad. In the case at bench, the defendant has undoubtedly acquired her American husbands citizenship and thus has become an alien as well. This Court cannot see why the benefits of Art. 26 aforequoted can not be extended to a Filipino citizen whose spouse eventually embraces another citizenship and thus becomes herself an alien. It would be the height of unfairness if, under these circumstances, plaintiff would still be considered as married to defendant, given her total incapacity to honor her marital covenants to the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to remain married to a spouse who is incapacitated to discharge essential marital covenants, is verily to condemn him to a perpetual disadvantage which this Court finds abhorrent and will not countenance. Justice dictates that plaintiff be given relief by affirming the trial courts declaration of the nullity of the marriage of the parties.16 After the Court of Appeals, in a Resolution, dated 08 March 2002,17 denied its Motion for Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the following arguments/grounds I. Abandonment by and sexual infidelity of respondents wife do not per se constitute psychological incapacity. II. The Court of Appeals has decided questions of substance not in accord with law and jurisprudence considering that the Court of Appeals committed serious errors of law in ruling that Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar.18 In his Comment19 to the Petition, respondent Crasus maintained that Felys psychological incapacity was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family Code of the Philippines was indeed

applicable to the marriage of respondent Crasus and Fely, because the latter had already become an American citizen. He further questioned the personality of petitioner Republic, represented by the Office of the Solicitor General, to institute the instant Petition, because Article 48 of the Family Code of the Philippines authorizes the prosecuting attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene on behalf of the State, in proceedings for annulment and declaration of nullity of marriages. After having reviewed the records of this case and the applicable laws and jurisprudence, this Court finds the instant Petition to be meritorious. I The totality of evidence presented during trial is insufficient to support the finding of psychological incapacity of Fely. Article 36, concededly one of the more controversial provisions of the Family Code of the Philippines, reads ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases, this Court laid down guidelines for determining its existence. In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus ". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated21 The psychological incapacity must be characterized by (a) Gravity It must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and

(c) Incurability It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.22 More definitive guidelines in the interpretation and application of Article 36 of the Family Code of the Philippines were handed down by this Court in Republic v. Court of Appeals and Molina,23 which, although quite lengthy, by its significance, deserves to be reproduced below (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job (5) Such illness must be grave enough to bring about the disability of the party

to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.24 A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial. Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the totality of evidence presented by respondent Crasus failed miserably to establish the alleged psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage null and void under Article 36 of the Family Code of the Philippines. The only substantial evidence presented by respondent Crasus before the RTC was his testimony, which can be easily put into question for being self-serving, in the absence of any other corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on the recording with the Register of Deeds of the Marriage Contract between respondent Crasus and Fely, such marriage being celebrated on 16 December 1961; and (2) the invitation to the wedding of Crasus, Jr., their eldest son, in which Fely used her American husbands surname. Even considering the admissions made by Fely

herself in her Answer to respondent Crasuss Complaint filed with the RTC, the evidence is not enough to convince this Court that Fely had such a grave mental illness that prevented her from assuming the essential obligations of marriage. It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse.26 Irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do not warrant a finding of psychological incapacity under the said Article.27 As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume."28 The evidence may have proven that Fely committed acts that hurt and embarrassed respondent Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment of respondent Crasus; her marriage to an American; and even her flaunting of her American family and her American surname, may indeed be manifestations of her alleged incapacity to comply with her marital obligations; nonetheless, the root cause for such was not identified. If the root cause of the incapacity was not identified, then it cannot be satisfactorily established as a psychological or mental defect that is serious or grave; neither could it be proven to be in existence at the time of celebration of the marriage; nor that it is incurable. While the personal examination of Fely by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their marriage under Article 36 of the Family Code of the Philippines, by virtue of this Courts ruling in Marcos v. Marcos,29 respondent Crasus must still have complied with the requirement laid down in Republic v. Court of Appeals and Molina30 that the root cause of the incapacity be identified as a psychological illness and that its incapacitating nature be fully explained. In any case, any doubt shall be resolved in favor of the validity of the marriage.31 No less than the Constitution of 1987 sets the policy to protect and strengthen the family as the basic social institution and marriage as the foundation of the family.32 II Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar. According to Article 26, paragraph 2 of the Family Code of the Philippines

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple getting married is a Filipino citizen and the other a foreigner at the time the marriage was celebrated. By its plain and literal interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen. Although the exact date was not established, Fely herself admitted in her Answer filed before the RTC that she obtained a divorce from respondent Crasus sometime after she left for the United States in 1984, after which she married her American husband in 1985. In the same Answer, she alleged that she had been an American citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained a divorce from respondent Crasus. III The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for annulment and declaration of nullity of marriages. Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor General had no personality to file the instant Petition on behalf of the State. Article 48 provides ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal defender of the Government.33 His Office is tasked to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers.34

The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the land, then his intervention in such proceedings could only serve and contribute to the realization of such intent, rather than thwart it. Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals.35 While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the State. In fact, this Court had already recognized and affirmed the role of the Solicitor General in several cases for annulment and declaration of nullity of marriages that were appealed before it, summarized as follows in the case of Ancheta v. Ancheta36 In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Id., at 213] This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its pronouncement in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State37 Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,38 which became

effective on 15 March 2003, should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are reproduced below Sec. 5. Contents and form of petition. (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 19. Decision. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. Sec. 20. Appeal. (2) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Given the foregoing, this Court arrives at a conclusion contrary to those of the

RTC and the Court of Appeals, and sustains the validity and existence of the marriage between respondent Crasus and Fely. At most, Felys abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds to file for legal separation under Article 55 of the Family Code of the Philippines, but not for declaration of nullity of marriage under Article 36 of the same Code. While this Court commiserates with respondent Crasus for being continuously shackled to what is now a hopeless and loveless marriage, this is one of those situations where neither law nor society can provide the specific answer to every individual problem.39 WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE. The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting. SO ORDERED. G.R. No. 154380 October 5, 2005 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent. DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.3 The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4 The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.6 For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.7 At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or 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. ... The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8 This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have

capacity to remarry under Philippine law. (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a

foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent.12 If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence.13 Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent must also show that

the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED.