EN BANC

[G.R. No. 161434. March 3, 2004]

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents.

[G.R. No. 161634. March 3, 2004]

ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.

[G. R. No. 161824. March 3, 2004]

VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents. DECISION
VITUG, J.:

Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a precious heritage, as well as an inestimable acquisition,[1]that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not?

The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe.

On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe,a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case.

Jurisdiction of the Court In G. R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code

Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy

may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code -

Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate. Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads

"Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land. In G. R. No. 161434 and G. R. No. 161634 Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003

and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,[4] as not (being) justiciable controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the VicePresident-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a postelection scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise -

Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines. Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest. Rule 14. Election Protest. - Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner.

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. [5] In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a postelection scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office. [6] Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a selfsufficient existence.[7] The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.[8] In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice.[9] Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power. [10] The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security.[11] The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship.[12]

The Local Setting - from Spanish Times to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects."[13] In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees.[14] Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts;[15] however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,[16] the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.[18] The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws.[19] It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. -

(a) Persons born in Spanish territory, (b) Children of a Spanish father or mother, even if they were born outside of Spain, (c) Foreigners who have obtained naturalization papers, (d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy.
[20]

The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact.

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.[21] Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."
[22]

Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines -

".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."
[23]

Under the organic act, a citizen of the Philippines was one who was an inhabitant of the Philippines, and a Spanish subject on the 11 th day of April 1899. The term inhabitant was taken to include 1) a native-born inhabitant, 2) an inhabitant who was

a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.[24] Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period.[25] More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 -

"Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."
[26]

With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -

That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April

1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country. While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship -

Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution (2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines. (4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. (5) Those who are naturalized in accordance with law.
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns -

Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. (2) Those whose fathers or mothers are citizens of the Philippines. (3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five.

(4) Those who are naturalized in accordance with law.

For good measure, Section 2 of the same article also further provided that

"A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionableproviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides:

The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. (2) Those whose fathers or mothers are citizens of the Philippines. (3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law.
The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses:

"No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."[27] The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization,jus soli, res judicata and jus sanguinis[28] had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a natural-born citizen of the Philippines. Jus soli, perRoa vs. Collector of Customs[29] (1912), did not

last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an uncertified copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that -

1. 2. 3. 4. 5.

The parents of FPJ were Allan F. Poe and Bessie Kelley; FPJ was born to them on 20 August 1939; Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; The father of Allan F. Poe was Lorenzo Poe; and At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by

respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals.

Section 3, Rule 130, Rules of Court states that Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: x x x xxx xxx

(d) When the original is a public record in the custody of a public office or is recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides:

Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facieevidence of the facts therein stated.
The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred.[31] The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902.

Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document.[32] Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that -

In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified.
In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition.[33] In Mendoza vs. Mella,[34] the Court ruled -

"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently

executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,[35] this Court defined what could constitute such a document as proof of voluntary acknowledgment:

"Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:

Art. 172. following:

The filiation of legitimate children is established by any of the

(1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. x x x xxx x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.
The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled:

"We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly -

"Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and

obedience among members of a family, and those which exist among members of a society for the protection of private interests."
[37]

In Yaez de Barnuevo vs. Fuster,[38] the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that -

"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" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,[39] such as on successional rights and family relations.[40] In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law[41] and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law.

The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides -

Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family -

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: 1. 2. 3. I am the sister of the late Bessie Kelley Poe. Bessie Kelley Poe was the wife of Fernando Poe, Sr. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ.

4.

Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. x x x xxx xxx

7.

Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year. Fernando Poe, Sr., and my sister Bessie had their first child in 1938. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944.

8. 9.

10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe. x x x xxx xxx

18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr. Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelley Mangahas Declarant
DNA Testing In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,[42] this Court has acknowledged the strong weight of DNA testing -

"Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and

expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress."
Petitioners Argument For Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,[43] citingChiongbian vs. de Leon[44] and Serra vs. Republic.[45] On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states -

"We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases. First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the

naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather. Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here. Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis. Finally, Paa vs. Chan. This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino.
[46]

The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. x x x xxx xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat. I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not
[47]

justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him. The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are those whose fathers are citizens of the Philippines. There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided. In Sum (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines. (2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latters capacity as the only tribunal to resolve a presidential and vice-

presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,[48] must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS 1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction. 2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED. Davide, Jr., C.J., see separate opinion, concurring. Puno, J., on leave but was allowed to vote; see separate opinion.

Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter. Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded. Ynares-Santiago, J., concurs and also with J. Punos separate opinion. Sandoval-Gutierrez, J., concurs, please see separate opinion. Carpio, J., see dissenting opinion. Austria-Martinez, J., concurs, please see separate opinion. Corona, J., joins the dissenting opinion of Justice Morales. Carpio-Morales, J., see dissenting opinion. Callejo, Sr., J., please see concurring opinion. Azcuna, J., concurs in a separate opinion. Tinga, J., dissents per separate opinion.

[1]

Tan Chong vs. The Secretary of Labor, 45 O.G. No. 31, 1269. Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (Rule 64) Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (Rule 65)

[2]

[3]

[4]

17 SCRA 761. See Rule 66, Revised Rules of Civil Procedure. The Politics of Aristotle, edited and translated by Ernest Barker, Oxford University Press, London, 1946. at p. 93. Id., at 95. Introduction, The Conditions of Citizenship, edited by Bart Van Steenbergen, Sage Publications, London, Thousand Oaks, New Delhi (1994). Ibid. Ibid. Ibid. Ibid.

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[6]

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[13]

Under the codified Novisima Recopilacion promulgated in Spain in 1805, the following were considered denizens (vecinos) " all foreigners who obtained the privilege of naturalization, those who were born in these kingdoms, those who residing therein may be converted to the holy Catholic faith; those, being self-supporting, established their domicile therein; and in the case of a foreign woman who married a native man, she thereby becomes subject to the same laws and acquires the same domicile as her husband; those who establish themselves in the country by acquiring real property; those who have trade or profession and go there to practice the same; also those who practice some mechanical trade therein or keep a retail store;....those who reside for a period of ten years in a home of his own; and also those foreigners who, in accordance with the common law, royal orders and other laws of the kingdoms, may have become naturalized or acquired residence therein. (Leon T. Garcia, The Problems of Citizenship in the Philippines, Rex Bookstore, 1949, at p. 4) Garcia, supra., at p. 3. Justices Malcolm, Recto and Florentino Torres believed that the law was effective in the Philippines. Those who entertained the contrary view were Justices Imperial and Villareal. (Garcia, supra., at 4.). Garcia, supra., pp. 5-6. Under the Royal Decree of August 23, 1868, the following were considered foreigners --- (1) The legitimate and recognized natural children of a father who belongs to another independent state, and the unrecognized and natural and other illegitimate children of a mother belonging to another State born outside of the Spanish dominions, (2) The children specified in the preceding paragraph, born in the Spanish dominions or on board Spanish vessels on the high seas if they do not, on attaining the age of majority fixed in the laws of the Kingdom, elect Spanish nationality, (3) Those being Spaniards, acquire another nationality, as well by renouncing the first as by accepting employment, from another government without the authority of the sovereign and (4) The woman who contracts marriage with a subject of another State. (Garcia, supra., pp. 6-7) Under the law, the following were foreigners (a) All persons born of foreign parents outside of the Spanish territory; (b) Those born outside of the Spanish territory of foreign fathers and Spanish mothers while they do not claim Spanish nationality, (3) Those born in Spanish territory of foreign parents or foreign fathers and Spanish mothers while they do not make that claim, (4) Spaniards who may have lost their nationality, (5) Those born outside of the Spanish territory of parents who may have lost their Spanish nationality; and (6), the Spanish woman married to a foreigner. (Garcia, supra., p. 7) Velayo, infra., p. 11. Article 17, The Civil Code of Spain. Garcia, supra, pp. 6-7. Ramon M. Velayo, Philippine Citizenship And Naturalization, Central Book Supply, Manila (1965), pp. 22-23. Ibid., p. 30. Garcia, supra, at pp. 31-32. Garcia, supra, pp. 23-26. Velayo, supra, p. 31 Section 2, Article IV, 1987 Constitution. Per amicus curiae Joaquin G. Bernas, SJ. 23 Phil 315 (1912).

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Supra., which held that jus soli was never applied in the Philippines. Antillon vs. Barcelon, 37 Phil 148. Article 131 Old Civil Code. Dayrit vs. Piccio, 92 Phil 729. 17 SCRA 788. 95 Phil 167. 125 SCRA 835. Vicente J. Fransisco, Civil Code of the Philippines, Bk I, 1953 at p. 5 29 Phil 606. Article 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, 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 thenational 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. Article 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. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.

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Article 10. Marriages between Filipino citizens abroad may be solemnized by a consul general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.

Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. Article 26. xxx

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. Article 80. In the absence of a contrary stipulation in the marriage settlements, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for their extrinsic validity.
[41]

See Ching Leng vs. Galang, L-11931, October 1958, unreported. 354 SCRA 17. 20 SCRA 562, Paa vs. Chan 21 SCRA 753. 82 Phil. 771. 91 Phil. 914, unreported. 21 SCRA 753. 68 Phil 12. 248 SCRA 300 (1995)

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Tecson vs. COMELEC , GR 16134 , March 3, 2004

FACTS: Petitioners questioned the jurisdiction of the COMELEC in taking cognizance of and deciding the citizenship issue affecting Fernando Poe Jr. They asserted that under Section 4(7) , Article VII of the 1987 Constituition, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue of the case. ISSUE: As the Presidential Electoral Tribunal (PET) , does the Supreme Court have jurisdiction over the qualifications of presidential candidates? RULING: No. An examination of the phraseology in Rule 12, 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court on April 1992 categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vicepresidency before the elections are held.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 148408 July 14, 2006

CONCEPCION PARAYNO, petitioner, vs. JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN, * respondents. DECISION CORONA, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court questioning the resolution of the Court of Appeals (CA) which dismissed the petition for certiorari, mandamus and prohibition, with prayer for issuance of a preliminary

and mandatory injunction, filed by petitioner Concepcion Parayno against respondents Jose Jovellanos and the Municipality of Calasiao, Pangasinan. Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality for the closure or transfer of the station to another location. The matter was referred to the Municipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire Protection for investigation. Upon their advise, the Sangguniang Bayan recommended to the Mayor the closure or transfer of location of petitioner's gasoline station. In Resolution No. 50, it declared: a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit: The Official Zoning Code of Calasiao, Art. 6, Section 44, 1 the nearest school building which is San Miguel Elementary School and church, the distances are less than 100 meters. No neighbors were called as witnesses when actual measurements were done by HLURB Staff, Baguio City dated 22 June 1989. b) The gasoline station remains in thickly populated area with commercial/residential buildings, houses closed (sic) to each other which still endangers the lives and safety of the people in case of fire. Moreover, additional selling and storing of several LPG tanks in the station (sic). c) The residents of our barangay always complain of the irritating smell of gasoline most of the time especially during gas filling which tend to expose residents especially children to frequent colds, asthma, cough and the like nowadays. d) xxx the gasoline station violated Building and Fire Safety Codes because the station has 2nd floor storey building used for business rental offices, with iron grilled windows, no firewalls. It also endangers the lives of people upstairs. e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance and exit are closed to the street property lines. It couldn't cope situation (sic) on traffic because the place is a congested area. 2 Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a special civil action for prohibition and mandamus with the Regional Trial Court (RTC) of Dagupan City, Branch 44 against respondents. The case, docketed as SP Civil Case No. 99-03010-D, was raffled to the sala of Judge Crispin Laron. Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning Code since it was not a "gasoline service station" but a "gasoline filling station" governed by Section 21 thereof. She added that the decision of the Housing and Land Use Regulatory Board (HLURB), 3 in a previous case filed by the same respondent Jovellanos against her predecessor (Dennis Parayno), barred the grounds invoked by respondent municipality in Resolution No. 50. In the HLURB case, respondent Jovellanos opposed the establishment of the gas station on the grounds that: (1) it was within the 100meter prohibited radius under Section 44 and (2) it posed a pernicious effect on the health and safety of the people in Calasiao. After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory injunction, the trial court ruled: There is no basis for the court to issue a writ of preliminary prohibitory and mandatory injunction. Albeit,Section 44 of the Official Zoning Code of respondent municipality does not mention a gasoline filling station, [but] following the principle of ejusdem generis, a gasoline filling station falls within the ambit of Section 44. The gasoline filling station of the petitioner is located under the establishment belonging to the petitioner and is very near several buildings occupied by several persons. Justice dictates that the same should not be allowed to continue operating its business on that particular place. Further, the gasoline filling station endangers the lives and safety of people because once there is fire, the establishment and houses nearby will be razed to the ground.4(emphasis supplied) Petitioner moved for reconsideration of the decision but it was denied by the trial court. Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus, 5 with a prayer for injunctive relief. She ascribed grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of Judge Laron who dismissed her case.

After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same was denied. Hence, this appeal. Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her case; (2) the closure/transfer of her gasoline filling station by respondent municipality was an invalid exercise of the latter's police powers and (3) it was the principle of res judicata that applied in this case.6 We find merit in the petition. The Principle of Ejusdem Generis We hold that the zoning ordinance of respondent municipality made a clear distinction between "gasoline service station" and "gasoline filling station." The pertinent provisions read: xxx xxx xxx

Section 21. Filling Station. A retail station servicing automobiles and other motor vehicles with gasoline and oil only.7 xxx xxx xxx

Section 42. Service Station. A building and its premises where gasoline oil, grease, batteries, tires and car accessories may be supplied and dispensed at retail and where, in addition, the following services may be rendered and sales and no other. a. Sale and servicing of spark plugs, batteries, and distributor parts; b. Tire servicing and repair, but not recapping or regrooving; c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light bulbs, fuses, floor mats, seat covers, windshield wipers and wiper blades, grease retainers, wheel, bearing, mirrors and the like; d. Radiator cleaning and flushing; e. Washing and polishing, and sale of automobile washing and polishing materials; f. Grease and lubricating; g. Emergency wiring repairs; h. Minor servicing of carburators; i. Adjusting and repairing brakes; j. Minor motor adjustments not involving removal of the head or crankcase, or raising the motor. 8 xxx xxx xxx

It is evident from the foregoing that the ordinance intended these two terms to be separate and distinct from each other. Even respondent municipality's counsel admitted this dissimilarity during the hearing on the application for the issuance of a writ of preliminary prohibitory and mandatory injunction. Counsel in fact admitted: 1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not yet amended;

2. That under Article III of said official zoning code there [were] certain distinctions made by said municipality about the designation of the gasoline filling station and that of the gasoline service station as appearing in Article III, Nos. 21 and 42, [respectively]; 3. That the business of the petitioner [was] one of a gasoline filling station as defined in Article III, Section 21 of the zoning code and not as a service station as differently defined under Article 42 of the said official zoning code; 4. That under Section 44 of the official zoning code of Calasiao, the term filling station as clearly defined under Article III, Section 21, [did] not appear in the wordings thereof;9(emphasis supplied) The foregoing were judicial admissions which were conclusive on the municipality, the party making them. 10Respondent municipality thus could not find solace in the legal maxim of ejusdem generis11 which means "of the same kind, class or nature." Under this maxim, where general words follow the enumeration of particular classes of persons or things, the general words will apply only to persons or things of the same general nature or class as those enumerated.12 Instead, what applied in this case was the legal maxim expressio unius est exclusio alteriuswhich means that the express mention of one thing implies the exclusion of others. 13 Hence, because of the distinct and definite meanings alluded to the two terms by the zoning ordinance, respondents could not insist that "gasoline service station" under Section 44 necessarily included "gasoline filling station" under Section 21. Indeed, the activities undertaken in a "gas service station" did not automatically embrace those in a "gas filling station." The Exercise of Police Powers Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's gasoline station. While it had, under RA 7160,14 the power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given due deference to the law and the rights of petitioner. A local government is considered to have properly exercised its police powers only when the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive.15 The first requirement refers to the equal protection clause and the second, to the due process clause of the Constitution.16 Respondent municipality failed to comply with the due process clause when it passed Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from the nearest public school and church, the records do not show that it even attempted to measure the distance, notwithstanding that such distance was crucial in determining whether there was an actual violation of Section 44. The different local offices that respondent municipality tapped to conduct an investigation never conducted such measurement either. Moreover, petitioner's business could not be considered a nuisance which respondent municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property,17 hence, it cannot be closed down or transferred summarily to another location. As a rule, this Court does not pass upon evidence submitted by the parties in the lower courts. 18 We deem it necessary, however, to recall the findings of the HLURB which petitioner submitted as evidence during the proceedings before the trial court, if only to underscore petitioner's compliance with the requirements of law before she put up her gasoline station. Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in complying with the requirements of the several laws prior to the actual implementation of the project as can be attested by the fact that [petitioner] has secured the necessary building permit and approval of [her] application for authority to relocate as per the letter of the Energy Regulatory Board xxx. 19 On the alleged hazardous effects of the gasoline station to the lives and properties of the people of Calasiao, we again note: Relative to the allegations that the project (gasoline station) is hazardous to life and property, the Board takes cognizance of the respondent's contention that the project "is not a fire hazard since petroleum products shall be safely stored in underground tanks and that the installation and construction of the underground tanks shall be in accordance with the Caltex Engineering Procedures which is true to all gasoline stations in the country. xxx

Hence, the Board is inclined to believe that the project being hazardous to life and property is more perceived than factual. For, after all, even the Fire Station Commander, after studying the plans and specifications of the subject proposed construction, recommended on 20 January 1989, "to build such buildings after conform (sic) all the requirements of PP 1185." It is further alleged by the complainants that the proposed location is "in the heart of the thickly populated residential area of Calasiao." Again, findings of the [HLURB] staff negate the allegations as the same is within a designated Business/Commercial Zone per the Zoning Ordinance. xxx20 (emphasis supplied) The findings of fact of the HLURB are binding as they are already final and conclusive vis--vis the evidence submitted by respondents. The Principle of Res Judicata Petitioner points out that the HLURB decision in the previous case filed against her predecessor (Dennis Parayno) by respondent Jovellanos had effectively barred the issues in Resolution No. 50 based on the principle of res judicata. We agree. Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on all points and matters determined in the former suit. 21 For res judicata to apply, the following elements must be present: (1) the judgment or order must be final; (2) the judgment must be on the merits; (3) it must have been rendered by a court having jurisdiction over the subject matter and the parties and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.22 Respondent municipality does not contest the first, second and third requisites. However, it claims that it was not a party to the HLURB case but only its co-respondent Jovellanos, hence, the fourth requisite was not met. The argument is untenable. The absolute identity of parties is not required for the principle of res judicata to apply.23 A shared identity of interests is sufficient to invoke the application of this principle. 24 The proscription may not be evaded by the mere expedient of including an additional party.25 Res judicata may lie as long as there is a community of interests between a party in the first case and a party in the second case although the latter may not have been impleaded in the first. 26 In the assailed resolution of respondent municipality, it raised the same grounds invoked by its co-respondent in the HLURB: (1) that the resolution aimed to close down or transfer the gasoline station to another location due to the alleged violation of Section 44 of the zoning ordinance and (2) that the hazards of said gasoline station threatened the health and safety of the public. The HLURB had already settled these concerns and its adjudication had long attained finality. It is to the interest of the public that there should be an end to litigation by the parties over a subject matter already fully and fairly adjudged. Furthermore, an individual should not be vexed twice for the same cause. 27 WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court of the Appeals isREVERSED and SET ASIDE. Respondent Municipality of Calasiao is hereby directed to cease and desist from enforcing Resolution No. 50 against petitioner insofar as it seeks to close down or transfer her gasoline station to another location. No costs. SO ORDERED. Puno, Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur.

Footnotes
*

Hon. Crispin C. Laron, of the Regional Trial Court of Dagupan City, Branch 44, was impleaded as respondent. Under Section 4, Rule 45 of the 1997 Rules of Court, lower courts or judges thereof need not be impleaded either as petitioners or respondents.
1

Section 44. Gasoline Service Stations:

In business or industrial zones, no gasoline service station, commercial gasoline bus station or public parking lot shall be allowed within one hundred (100) meters away from any public or private school, public library, playground, church, and hospital based on the straight line method measured from the nearest side of the building nearest the lot if there are no intervening buildings to the nearest pump of the gasoline station; records, pp. 69-70. (italics supplied)
2

Rollo, pp. 9-10. HLURB Case No. TPZ-C-01-9-0003, entitled "Jose Jovellanos v. Dennis Parayno." Rollo, pp. 72-75. CA-G.R. SP No. 61838. Rollo, p. 7. Rollo, p. 39. Id., p. 40. Annex "E," rollo, p. 70. Section 4, Rule 129, Rules of Court; see also Evidence, by R.J. Francisco, 1996 Edition. Memorandum of Respondent, rollo, p. 125. Ching v. Salinas, G.R. No. 161295, 29 June 2005.

10

11

12

13

NFA v. Masada Security Agency, Inc., G.R. No. 163448, 8 March 2005, 453 SCRA 70; Strong v. Repide, 6 Phil. 680 (1906). The Local Government Code of 1991; Section 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare within their respective territorial jurisdictions. Local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents xxx.
14 15

Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., G.R. No. 148339, 23 February 2005, 452 SCRA 174. Id. Monteverde v. Generoso, 52 Phil. 123 (1982).

16

17

18

Factual issues are not within the province of the Supreme Court, as it is not a trier of facts and it is not required to examine or contrast the oral and documentary evidence de novo. Nevertheless, the Court has the authority to review, even reverse, the factual findings of lower courts in exceptional instances. (Lagon v. Hooven Comalco Industries, Inc., G.R. No. 135657, 17 January 2001, 349 SCRA 363.)
19

Rollo, p. 66. Id., p. 65. Taganas v. Emuslan, G.R. No. 146980, 2 September 2003, 410 SCRA 237.

20

21

22

Development Bank of the Philippines v. La Campana Development Corporation, G.R. No. 137694, 17 January 2005, 448 SCRA 384.
23

Carlet v. Court of Appeals, 341 Phil. 99 (1997). Id. Heirs of the Late Faustina Adalid v. Court of Appeals, G.R. No. 122202, 26 May 2005, 459 SCRA 27. Sempio v. Court of Appeals, 348 Phil. 627 (1998). Id.

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27

lawphil

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 113092 September 1, 1994 MARTIN CENTENO, petitioner, vs. HON. VICTORIA VILLALON-PORNILLOS, Presiding Judge of the Regional Trial Court of Malolos, Bulacan, Branch 10, and THE PEOPLE OF THE PHILIPPINES, respondents. Santiago V. Marcos, Jr. for petitioner.

REGALADO, J.: It is indeed unfortunate that a group of elderly men, who were moved by their desire to devote their remaining years to the service of their Creator by forming their own civic organization for that purpose, should find themselves enmeshed in a criminal case for making a solicitation from a community member allegedly without the required permit from the Department of Social Welfare and Development. The records of this case reveal that sometime in the last quarter of 1985, the officers of a civic organization known as the Samahang Katandaan ng Nayon ng Tikay launched a fund drive for the purpose of renovating the chapel of Barrio Tikay, Malolos, Bulacan. Petitioner Martin Centeno, the chairman of the group, together with Vicente Yco, approached Judge Adoracion G. Angeles, a resident of Tikay, and solicited from her a contribution of P1,500.00. It is admitted that the solicitation was made without a permit from the Department of Social Welfare and Development. As a consequence, based on the complaint of Judge Angeles, an information 1 was filed against petitioner Martin Centeno, together with Religio Evaristo and Vicente Yco, for violation of Presidential Decree No. 1564, or the Solicitation Permit Law, before the Municipal Trial Court of Malolos, Bulacan, Branch 2, and docketed as Criminal Case No. 2602. Petitioner filed a motion to quash the information 2 on the ground that the facts alleged therein do not constitute an offense, claiming that Presidential Decree No. 1564 only covers solicitations made for charitable or public welfare purposes, but not those made for a religious purpose such as the construction of a chapel. This was denied 3 by the trial court, and petitioner's motion for reconsideration having met the same fate, trial on the merits ensued. On December 29, 1992, the said trial court rendered judgment 4 finding accused Vicente Yco and petitioner Centeno guilty beyond reasonable doubt and sentencing them to each pay a fine of P200.00. Nevertheless, the trial court recommended that the accused be pardoned on the basis of its finding that they acted in good faith, plus the fact that it believed that the latter should not have been criminally liable were it not for the existence of Presidential Decree No. 1564 which the court opined it had the duty to apply in the instant case. Both accused Centeno and Yco appealed to the Regional Trial Court of Malolos, Bulacan, Branch 10. However, accused Yco subsequently withdrew his appeal, hence the case proceeded only with respect to petitioner Centeno. On May 21, 1993, respondent Judge Villalon-Pornillos affirmed the decision of the lower court but modified the penalty, allegedly because of the perversity of the act committed which caused damage and prejudice to the complainant, by sentencing petitioner Centeno to suffer an increased penalty of imprisonment of 6 months and a fine of P1,000.00, without subsidiary imprisonment in case of insolvency. 5 The motion for reconsideration of the decision was denied by the court. 6 Thus it is that a fine of P200.00 imposed as a penalty by the lowest court in the judicial hierarchy eventually reached this highest tribunal, challenged on the sole issue of whether solicitations for religious purposes are within the ambit of Presidential Decree No. 1564. Quantitatively, the financial sanction is a nominal imposition but, on a question of principle, it is not a trifling matter. This Court is gratified that it can now grant this case the benefit of a final adjudication. Petitioner questions the applicability of Presidential Decree No. 1564 to solicitations for contributions intended for religious purposes with the submissions that (1) the term "religious purpose" is not expressly included in the provisions of the statute, hence what the law does not include, it excludes; (2) penal laws are to be construed strictly against the State and liberally in favor of the accused; and (3) to subject to State regulation solicitations made for a religious purpose would constitute an abridgment of the right to freedom of religion

guaranteed under the Constitution. Presidential Decree No. 1564 (which amended Act No. 4075, otherwise known as the Solicitation Permit Law), provides as follows: Sec. 2. Any person, corporation, organization, or association desiring to solicit or receive contributions for charitable or public welfare purposes shall first secure a permit from the Regional Offices of the Department of Social Services and Development as provided in the Integrated Reorganization Plan. Upon the filing of a written application for a permit in the form prescribed by the Regional Offices of the Department of Social Services and Development, the Regional Director or his duly authorized representative may, in his discretion, issue a permanent or temporary permit or disapprove the application. In the interest of the public, he may in his discretion renew or revoke any permit issued under Act 4075. The main issue to be resolved here is whether the phrase "charitable purposes" should be construed in its broadest sense so as to include a religious purpose. We hold in the negative. I. Indeed, it is an elementary rule of statutory construction that the express mention of one person, thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim "expressio unius est exclusio alterius." Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. 7 It will be observed that the 1987 Constitution, as well as several other statutes, treat the words "charitable" and "religious" separately and independently of each other. Thus, the word "charitable" is only one of three descriptive words used in Section 28 (3), Article VI of the Constitution which provides that "charitable institutions, churches and personages . . ., and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation." There are certain provisions in statutes wherein these two terms are likewise dissociated and individually mentioned, as for instance, Sections 26 (e) (corporations exempt from income tax) and 28 (8) (E) (exclusions from gross income) of the National Internal Revenue Code; Section 88 (purposes for the organization of non-stock corporations) of the Corporation Code; and Section 234 (b) (exemptions from real property tax) of the Local Government Code. That these legislative enactments specifically spelled out "charitable" and "religious" in an enumeration, whereas Presidential Decree No. 1564 merely stated "charitable or public welfare purposes," only goes to show that the framers of the law in question never intended to include solicitations for religious purposes within its coverage. Otherwise, there is no reason why it would not have so stated expressly. All contributions designed to promote the work of the church are "charitable" in nature, since religious activities depend for their support on voluntary contributions. 8 However, "religious purpose" is not interchangeable with the expression "charitable purpose." While it is true that there is no religious purpose which is not also a charitable purpose, yet the converse is not equally true, for there may be a "charitable" purpose which is not "religious" in the legal sense of the term. 9 Although the term "charitable" may include matters which are "religious," it is a broader term and includes matters which are not "religious," and, accordingly, there is a distinction between "charitable purpose" and "religious purpose," except where the two terms are obviously used synonymously, or where the distinction has been done away with by statute. 10 The word "charitable," therefore, like most other words, is capable of different significations. For example, in the law, exempting charitable uses from taxation, it has a very wide meaning, but under Presidential Decree No. 1564 which is a penal law, it cannot be given such a broad application since it would be prejudicial to petitioners. To illustrate, the rule is that tax exemptions are generally construed strictly against the taxpayer. However, there are cases wherein claims for exemption from tax for "religious purposes" have been liberally construed as covered in the law granting tax exemptions for "charitable purposes." Thus, the term "charitable purposes," within the meaning of a statute providing that the succession of any property passing to or for the use of any institution for purposes only of public charity shall not be subject to succession tax, is deemed to include religious purposes. 11A gift for "religious purposes" was considered as a bequest for "charitable use" as regards exemption from inheritance tax. 12 On the other hand, to subsume the "religious" purpose of the solicitation within the concept of "charitable" purpose which under Presidential Decree No. 1564 requires a prior permit from the Department of Social Services and Development, under paid of penal liability in the absence thereof, would be prejudicial to petitioner. Accordingly, the term "charitable" should be strictly construed so as to exclude solicitations for "religious" purposes. Thereby, we adhere to the fundamental doctrine underlying virtually all penal

legislations that such interpretation should be adopted as would favor the accused. For, it is a well-entrenched rule that penal laws are to be construed strictly against the State and liberally in favor of the accused. They are not to be extended or enlarged by implications, intendments, analogies or equitable considerations. They are not to be strained by construction to spell out a new offense, enlarge the field of crime or multiply felonies. Hence, in the interpretation of a penal statute, the tendency is to subject it to careful scrutiny and to construe it with such strictness as to safeguard the rights of the accused. If the statute is ambiguous and admits of two reasonable but contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. The principle is that acts in and of themselves innocent and lawful cannot be held to be criminal unless there is a clear and unequivocal expression of the legislative intent to make them such. Whatever is not plainly within the provisions of a penal statute should be regarded as without its intendment. 13 The purpose of strict construction is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts. 14 The word "charitable" is a matter of description rather than of precise definition, and each case involving a determination of that which is charitable must be decided on its own particular facts and circumstances. 15 The law does not operate in vacuo nor should its applicability be determined by circumstances in the abstract. Furthermore, in the provisions of the Constitution and the statutes mentioned above, the enumerations therein given which include the words "charitable" and "religious" make use of the disjunctive "or." In its elementary sense, "or" as used in a statute is a disjunctive article indicating an alternative. It often connects a series of words or propositions indicating a choice of either. When "or" is used, the various members of the enumeration are to be taken separately. 16 Accordingly, "charitable" and "religious," which are integral parts of an enumeration using the disjunctive "or" should be given different, distinct, and disparate meanings. There is no compelling consideration why the same treatment or usage of these words cannot be made applicable to the questioned provisions of Presidential Decree No. 1564. II. Petitioner next avers that solicitations for religious purposes cannot be penalized under the law for, otherwise, it will constitute an abridgment or restriction on the free exercise clause guaranteed under the Constitution. It may be conceded that the construction of a church is a social concern of the people and, consequently, solicitations appurtenant thereto would necessarily involve public welfare. Prefatorily, it is not implausible that the regulatory powers of the State may, to a certain degree, extend to solicitations of this nature. Considering, however, that such an activity is within the cloak of the free exercise clause under the right to freedom of religion guaranteed by the Constitution, it becomes imperative to delve into the efficaciousness of a statutory grant of the power to regulate the exercise of this constitutional right and the allowable restrictions which may possibly be imposed thereon. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the constitution embraces two concepts, that is, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definitions to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised, in attaining a permissible end, as not to unduly infringe on the protected freedom. 17 Whence, even the exercise of religion may be regulated, at some slight inconvenience, in order that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The State is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort, or convenience. 18 It does not follow, therefore, from the constitutional guaranties of the free exercise of religion that everything which may be so called can be tolerated. 19 It has been said that a law advancing a legitimate governmental interest is not necessarily invalid as one interfering with the "free exercise" of religion merely because it also incidentally has a detrimental effect on the adherents of one or more religion. 20 Thus, the general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise. 21 Even with numerous regulative laws in existence, it is surprising how many operations are carried on by persons and associations who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a

generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them. The State has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitation of contributions under the guise of charitable and benevolent purposes is grossly abused is a matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. 22 The objectionable practices of unscrupulous persons are prejudicial to worthy and proper charities which naturally suffer when the confidence of the public in campaigns for the raising of money for charity is lessened or destroyed. 23 Some regulation of public solicitation is, therefore, in the public interest. 24 To conclude, solicitation for religious purposes may be subject to proper regulation by the State in the exercise of police power. However, in the case at bar, considering that solicitations intended for a religious purpose are not within the coverage of Presidential Decree No. 1564, as earlier demonstrated, petitioner cannot be held criminally liable therefor. As a final note, we reject the reason advanced by respondent judge for increasing the penalty imposed by the trial court, premised on the supposed perversity of petitioner's act which thereby caused damage to the complainant. It must be here emphasized that the trial court, in the dispositive portion of its decision, even recommended executive clemency in favor of petitioner and the other accused after finding that the latter acted in good faith in making the solicitation from the complainant, an observation with which we fully agree. After all, mistake upon a doubtful and difficult question of law can be the basis of good faith, especially for a layman. There is likewise nothing in the findings of respondent judge which would indicate, impliedly or otherwise, that petitioner and his co-accused acted abusively or malevolently. This could be reflective upon her objectivity, considering that the complainant in this case is herself a judge of the Regional Trial Court at Kalookan City. It bears stressing at this point that a judge is required to so behave at all times as to promote public confidence in the integrity and impartiality of the judiciary, 25 should be vigilant against any attempt to subvert its independence, and must resist any pressure from whatever source. 26 WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and petitioner Martin Centeno is ACQUITTED of the offense charged, with costs de oficio. SO ORDERED. Narvasa, C.J. and Puno, JJ., concur.

Separate Opinions

MENDOZA, J.: I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or public welfare purposes." My reasons are three-fold. First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philantrophic as much as the religious fervor of the person who is solicited for contribution. Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually conducted among those belonging to the same religion, the need for public protection against fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for charity or civic projects so as to justify state regulation.

Third. To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may engage in business could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior permit for public assemblies and other uses of public parks and streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is not fairly possible by which a constitutional violation may be avoided. For these reasons, I vote to reverse the decision appealed from and to acquit petitioner. Padilla, J., concurs.

# Separate Opinions

MENDOZA, J.:

I concur in the result reached in this case that the solicitation of donations for the repair of a chapel is not covered by P.D. No. 1564 which requires a permit for the solicitation of contributions for "charitable or public welfare purposes." My reasons are three-fold. First. Solicitation of contributions for the construction of a church is not solicitation for "charitable or public welfare purpose" but for a religious purpose, and a religious purpose is not necessarily a charitable or public welfare purpose. A fund campaign for the construction or repair of a church is not like fund drives for needy families or victims of calamity or for the construction of a civic center and the like. Like solicitation of subscription to religious magazines, it is part of the propagation of religious faith or evangelization. Such solicitation calls upon the virtue of faith, not of charity, save as those solicited for money or aid may not belong to the same religion as the solicitor. Such solicitation does not engage the philantrophic as much as the religious fervor of the person who is solicited for contribution. Second. The purpose of the Decree is to protect the public against fraud in view of the proliferation of fund campaigns for charity and other civic projects. On the other hand, since religious fund drives are usually conducted among those belonging to the same religion, the need for public protection against fraudulent solicitations does not exist in as great a degree as does the need for protection with respect to solicitations for charity or civic projects so as to justify state regulation. Third. To require a government permit before solicitation for religious purpose may be allowed is to lay a prior restraint on the free exercise of religion. Such restraint, if followed, may well justify requiring a permit before a church can make Sunday collections or enforce tithing. But in American Bible Society v. City of Manila, 1 we precisely held that an ordinance requiring payment of a license fee before one may engage in business could not be applied to the appellant's sale of bibles because that would impose a condition on the exercise of a constitutional right. It is for the same reason that religious rallies are exempted from the requirement of prior permit for public assemblies and other uses of public parks and streets. 2 To read the Decree, therefore, as including within its reach solicitations for religious purposes would be to construe it in a manner that it violates the Free Exercise of Religion Clause of the Constitution, when what we are called upon to do is to ascertain whether a construction of the statute is not fairly possible by which a constitutional violation may be avoided. For these reasons, I vote to reverse the decision appealed from and to acquit petitioner. Padilla, J., concurs.
#Footnotes

1 Annex A, Petition; Rollo, 25. 2 Annex B, id.; ibid., 20. 3 Annex D, id.; ibid., 34.

4 Annex G, id.; ibid., 40. 5 Annex H, id.; ibid., 44. 6 Annex J, id.; ibid., 64. 7 Commissioner of Customs vs. Court of Tax Appeals, et al., G.R. Nos. 48886-88, July 21, 1993, 224 SCRA 665. 8 Scobey vs. Beckman, 41 N.E. 2d 84. 9 See Adye vs. Smith, 26 Am. Rep. 424. 10 See Read vs. McLean, 200 So. 109. 11 In re Seaman's Estate, 139 N.E. 2d 17. 12 In re Clark's Estate, 159 A. 500. 13 Martin, Statutory Construction, 1979 ed., 183. 14 Gaanan vs. Intermediate Appellate Court, et al., G.R. No. 69809, October 16, 1986, 145 SCRA 112. 15 Topeka Presbyterian Manor, Inc. vs. Board, 402 P. ed. 802. 16 Martin, op. cit., 81. 17 Cantwell vs. Connecticut, 301 U.S. 296 (1940). 18 Id., loc. cit. 19 16 Am. Jur. 2d, Constitutional Law, 283. 20 Ibid., id., 282. 21 Cantwell vs. Connecticut, supra. 22 Id., loc. cit. 23 City of Seattle vs. Rogers, 106 P. 2d 598. 24 Commonwealth vs. Creighton, et al., 170 A. 720. 25 Rule 2.01, Code of Judicial Conduct. 26 Rule 1.03. id. MENDOZA, J., concurring: 1 101 Phil. 386 (1957). 2 B.P. Blg. 880, 3(a).

The Lawphil Project - Arellano Law Foundation

lawphil

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 14129 July 31, 1962

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. GUILLERMO MANANTAN, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant. Padilla Law Office for defendant-appellee. REGALA, J.: This is an appeal of the Solicitor General from the order of the Court of First Instance of Pangasinan dismissing the information against the defendant. The records show that the statement of the case and the facts, as recited in the brief of plaintiff-appellant, is complete and accurate. The same is, consequently, here adopted, to wit: In an information filed by the Provincial Fiscal of Pangasinan in the Court of First Instance of that Province, defendant Guillermo Manantan was charged with a violation Section 54 of the Revised Election Code. A preliminary investigation conducted by said court resulted in the finding a probable cause that the crime charged as committed by defendant. Thereafter, the trial started upon defendant's plea of not guilty, the defense moved to dismiss the information on the ground that as justice of the peace the defendant is one of the officers enumerated in Section 54 of the Revised Election Code. The lower court denied the motion to dismiss holding that a justice of the peace is within the purview Section 54. A second motion was filed by defense counsel who cited in support thereof the decision of the Court of Appeals in People vs. Macaraeg, (CA-G.R. No. 15613-R, 54 Off. Gaz., pp. 1873-76) where it was held that a justice of the peace is excluded from the prohibition of Section 54 of the Revised Election Code. Acting on this second motion to dismiss, the answer of the prosecution, the reply of the defense, and the opposition of the prosecution, the lower court dismissed the information against the accused upon the authority of the ruling in the case cited by the defense. Both parties are submitting this case upon the determination of this single question of law: Is a justice the peace included in the prohibition of Section 54 of the Revised Election Code? Section 54 of the said Code reads: No justice, judge, fiscal, treasurer, or assessor of any province, no officer or employee of the Army, no member of the national, provincial, city, municipal or rural police force and no classified civil service officer or employee shall aid any candidate, or exert any influence in any manner in a election or take part therein, except to vote, if entitled thereto, or to preserve public peace, if he is a peace officer. Defendant-appellee argues that a justice of the peace is not comprehended among the officers enumerated in Section 54 of the Revised Election Code. He submits the aforecited section was taken from Section 449 of the Revised Administrative Code, which provided the following: SEC. 449. Persons prohibited from influencing elections. No judge of the First Instance, justice of the peace, or treasurer, fiscal or assessor of any province and no officer or employee of the Philippine Constabulary, or any Bureau or employee of the classified civil service, shall aid any candidate or exert influence in any manner in any election or take part therein otherwise than exercising the right to vote. When, therefore, section 54 of the Revised Election Code omitted the words "justice of the peace," the omission revealed the intention of the Legislature to exclude justices of the peace from its operation. The above argument overlooks one fundamental fact. It is to be noted that under Section 449 of the Revised Administrative Code, the word "judge" was modified or qualified by the phrase "of First instance", while under Section 54 of the Revised Election Code, no such modification exists. In other words, justices of the peace were expressly included in Section 449 of the Revised Administrative Code because the kinds of judges therein were specified, i.e., judge of the First Instance and justice of the peace. In Section 54, however, there was no necessity therefore to include justices of the peace in the enumeration because the legislature had availed itself of the more generic and broader term, "judge." It was a term not modified by any word or phrase and was intended to comprehend all kinds of judges, like judges of the courts of First Instance, Judges of the courts of Agrarian Relations, judges of the courts of Industrial Relations, and justices of the peace. It is a well known fact that a justice of the peace is sometimes addressed as "judge" in this jurisdiction. It is because a justice of the peace is indeed a judge. A "judge" is a public officer, who, by virtue of his office, is clothed with judicial authority (U.S. v. Clark, 25 Fed. Cas. 441, 422). According to Bouvier Law Dictionary, "a judge is a public officer lawfully appointed to decide litigated questions according to law. In its most extensive sense the term includes all officers appointed to decide litigated questions while acting in that capacity, including justices of the peace, and even jurors, it is said, who are judges of facts."

A review of the history of the Revised Election Code will help to justify and clarify the above conclusion. The first election law in the Philippines was Act 1582 enacted by the Philippine Commission in 1907, and which was later amended by Act. Nos. 1669, 1709, 1726 and 1768. (Of these 4 amendments, however, only Act No. 1709 has a relation to the discussion of the instant case as shall be shown later.) Act No. 1582, with its subsequent 4 amendments were later on incorporated Chapter 18 of the Administrative Code. Under the Philippine Legislature, several amendments were made through the passage of Acts Nos. 2310, 3336 and 3387. (Again, of these last 3 amendments, only Act No. 3587 has pertinent to the case at bar as shall be seen later.) During the time of the Commonwealth, the National Assembly passed Commonwealth Act No. 23 and later on enacted Commonwealth Act No. 357, which was the law enforced until June 1947, when the Revised Election Code was approved. Included as its basic provisions are the provisions of Commonwealth Acts Nos. 233, 357, 605, 666, 657. The present Code was further amended by Republic Acts Nos. 599, 867, 2242 and again, during the session of Congress in 1960, amended by Rep. Acts Nos. 3036 and 3038. In the history of our election law, the following should be noted: Under Act 1582, Section 29, it was provided: No public officer shall offer himself as a candidate for elections, nor shall he be eligible during the time that he holds said public office to election at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the First Instance, justice of the peace, provincial fiscal, or officer or employee of the Philippine Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take part in any municipal, provincial, or Assembly election under the penalty of being deprived of his office and being disqualified to hold any public office whatsoever for a term of 5 year: Provide, however, That the foregoing provisions shall not be construe to deprive any person otherwise qualified of the right to vote it any election." (Enacted January 9, 1907; Took effect on January 15, 1907.) Then, in Act 1709, Sec. 6, it was likewise provided: . . . No judge of the First Instance, Justice of the peace provincial fiscal or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner to take part in any municipal provincial or Assembly election. Any person violating the provisions of this section shall be deprived of his office or employment and shall be disqualified to hold any public office or employment whatever for a term of 5 years, Provided, however, that the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election. (Enacted on August 31, 1907; Took effect on September 15, 1907.) Again, when the existing election laws were incorporated in the Administrative Code on March 10, 1917, the provisions in question read: SEC. 449. Persons prohibited from influencing elections. No judge of the First Instance, justice of the peace, or treasurer, fiscal or assessor of any province and no officer or employee of the Philippine Constabulary or any Bureau or employee of the classified civil service, shall aid any candidate or exert influence in any manner in any election or take part therein otherwise than exercising the right to vote. (Emphasis supplied) After the Administrative Code, the next pertinent legislation was Act No. 3387. This Act reads: SEC. 2636. Officers and employees meddling with the election. Any judge of the First Instance, justice of the peace, treasurer, fiscal or assessor of any province, any officer or employee of the Philippine Constabulary or of the police of any municipality, or any officer or employee of any Bureau of the classified civil service, who aids any candidate or violated in any manner the provisions of this section or takes part in any election otherwise by exercising the right to vote, shall be punished by a fine of not less than P100.00 nor more than P2,000.00, or by imprisonment for not less than 2 months nor more than 2 years, and in all cases by disqualification from public office and deprivation of the right of suffrage for a period of 5 years. (Approved December 3, 1927.) (Emphasis supplied.) Subsequently, however, Commonwealth Act No. 357 was enacted on August 22, 1938. This law provided in Section 48: SEC. 48. Active Interventation of Public Officers and Employees. No justice, judge, fiscal, treasurer or assessor of any province, no officer or employee of the Army, the Constabulary of the national, provincial, municipal or rural police, and no classified civil service officer or employee shall aid any candidate, nor exert influence in any manner in any election nor take part therein, except to vote, if entitled thereto, or to preserve

public peace, if he is a peace officer. This last law was the legislation from which Section 54 of the Revised Election Code was taken. It will thus be observed from the foregoing narration of the legislative development or history of Section 54 of the Revised Election Code that the first omission of the word "justice of the peace" was effected in Section 48 of Commonwealth Act No. 357 and not in the present code as averred by defendant-appellee. Note carefully, however, that in the two instances when the words "justice of the peace" were omitted (in Com. Act No. 357 and Rep. Act No. 180), the word "judge" which preceded in the enumeration did not carry the qualification "of the First Instance." In other words, whenever the word "judge" was qualified by the phrase "of the First Instance", the words "justice of the peace" would follow; however, if the law simply said "judge," the words "justice of the peace" were omitted. The above-mentioned pattern of congressional phraseology would seem to justify the conclusion that when the legislature omitted the words "justice of the peace" in Rep. Act No. 180, it did not intend to exempt the said officer from its operation. Rather, it had considered the said officer as already comprehended in the broader term "judge". It is unfortunate and regrettable that the last World War had destroyed congressional records which might have offered some explanation of the discussion of Com. Act No. 357 which legislation, as indicated above, has eliminated for the first time the words "justice of the peace." Having been completely destroyed, all efforts to seek deeper and additional clarifications from these records proved futile. Nevertheless, the conclusions drawn from the historical background of Rep. Act No. 180 is sufficiently borne out by reason hid equity. Defendant further argues that he cannot possibly be among the officers enumerated in Section 54 inasmuch as under that said section, the word "judge" is modified or qualified by the phrase "of any province." The last mentioned phrase, defendant submits, cannot then refer to a justice of the peace since the latter is not an officer of a province but of a municipality. Defendant's argument in that respect is too strained. If it is true that the phrase "of any province" necessarily removes justices of the peace from the enumeration for the reason that they are municipal and not provincial officials, then the same thing may be said of the Justices of the Supreme Court and of the Court of Appeals. They are national officials. Yet, can there be any doubt that Justices of the Supreme Court and of the Court of Appeals are not included in the prohibition? The more sensible and logical interpretation of the said phrase is that it qualifies fiscals, treasurers and assessors who are generally known as provincial officers. The rule of "casus omisus pro omisso habendus est" is likewise invoked by the defendant-appellee. Under the said rule, a person, object or thing omitted from an enumeration must be held to have been omitted intentionally. If that rule is applicable to the present, then indeed, justices of the peace must be held to have been intentionally and deliberately exempted from the operation of Section 54 of the Revised Election Code. The rule has no applicability to the case at bar. The maxim "casus omisus" can operate and apply only if and when the omission has been clearly established. In the case under consideration, it has already been shown that the legislature did not exclude or omit justices of the peace from the enumeration of officers precluded from engaging in partisan political activities. Rather, they were merely called by another term. In the new law, or Section 54 of the Revised Election Code, justices of the peace were just called "judges." In insisting on the application of the rule of "casus omisus" to this case, defendant-appellee cites authorities to the effect that the said rule, being restrictive in nature, has more particular application to statutes that should be strictly construed. It is pointed out that Section 54 must be strictly construed against the government since proceedings under it are criminal in nature and the jurisprudence is settled that penal statutes should be strictly interpreted against the state. Amplifying on the above argument regarding strict interpretation of penal statutes, defendant asserts that the spirit of fair play and due process demand such strict construction in order to give "fair warning of what the law intends to do, if a certain line is passed, in language that the common world will understand." (Justice Holmes, in McBoyle v. U.S., 283 U.S. 25, L. Ed. 816). The application of the rule of "casus omisus" does not proceed from the mere fact that a case is criminal in nature, but rather from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enumeration. In the present case, and for reasons already mentioned, there has been no such omission. There has only been a substitution of terms. The rule that penal statutes are given a strict construction is not the only factor controlling the interpretation of such laws; instead, the rule merely serves as an additional, single factor to be considered as an aid in determining the meaning of penal laws. This has been recognized time and again by decisions of various courts. (3 Sutherland, Statutory Construction, p. 56.)

Thus, cases will frequently be found enunciating the principle that the intent of the legislature will govern (U.S. vs. Corbet, 215 U.S. 233). It is to be noted that a strict construction should not be permitted to defeat the policy and purposes of the statute (Ash Sheep Co. v. U.S., 252 U.S. 159). The court may consider the spirit and reason of a statute, as in this particular instance, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law makers (Crawford, Interpretation of Laws, Sec. 78, p. 294). A Federal District court in the U.S. has well said: The strict construction of a criminal statute does not mean such construction of it as to deprive it of the meaning intended. Penal statutes must be construed in the sense which best harmonizes with their intent and purpose. (U.S. v. Betteridge 43 F. Supp. 53, 56, cited in 3 Sutherland Statutory Construction 56.) As well stated by the Supreme Court of the United States, the language of criminal statutes, frequently, has been narrowed where the letter includes situations inconsistent with the legislative plan (U.S. v. Katz, 271 U.S. 354; See also Ernest Brunchen, Interpretation of the Written Law (1915) 25 Yale L.J. 129.) Another reason in support of the conclusion reached herein is the fact that the purpose of the statute is to enlarge the officers within its purview. Justices of the Supreme Court, the Court of Appeals, and various judges, such as the judges of the Court of Industrial Relations, judges of the Court of Agrarian Relations, etc., who were not included in the prohibition under the old statute, are now within its encompass. If such were the evident purpose, can the legislature intend to eliminate the justice of the peace within its orbit? Certainly not. This point is fully explained in the brief of the Solicitor General, to wit: On the other hand, when the legislature eliminated the phrases "Judge of First Instance" and justice of the peace", found in Section 449 of the Revised Administrative Code, and used "judge" in lieu thereof, the obvious intention was to include in the scope of the term not just one class of judges but all judges, whether of first Instance justices of the peace or special courts, such as judges of the Court of Industrial Relations. . . .. The weakest link in our judicial system is the justice of the peace court, and to so construe the law as to allow a judge thereof to engage in partisan political activities would weaken rather than strengthen the judiciary. On the other hand, there are cogent reasons found in the Revised Election Code itself why justices of the peace should be prohibited from electioneering. Along with Justices of the appellate courts and judges of the Court of First Instance, they are given authority and jurisdiction over certain election cases (See Secs. 103, 104, 117-123). Justices of the peace are authorized to hear and decided inclusion and exclusion cases, and if they are permitted to campaign for candidates for an elective office the impartiality of their decisions in election cases would be open to serious doubt. We do not believe that the legislature had, in Section 54 of the Revised Election Code, intended to create such an unfortunate situation. (pp. 708, Appellant's Brief.) Another factor which fortifies the conclusion reached herein is the fact that the administrative or executive department has regarded justices of the peace within the purview of Section 54 of the Revised Election Code. In Tranquilino O. Calo, Jr. v. The Executive Secretary, the Secretary of Justice, etc. (G.R. No. L-12601), this Court did not give due course to the petition for certiorari and prohibition with preliminary injunction against the respondents, for not setting aside, among others, Administrative Order No. 237, dated March 31, 1957, of the President of the Philippines, dismissing the petitioner as justice of the peace of Carmen, Agusan. It is worthy of note that one of the causes of the separation of the petitioner was the fact that he was found guilty in engaging in electioneering, contrary to the provisions of the Election Code. Defendant-appellee calls the attention of this Court to House Bill No. 2676, which was filed on January 25, 1955. In that proposed legislation, under Section 56, justices of the peace are already expressly included among the officers enjoined from active political participation. The argument is that with the filing of the said House Bill, Congress impliedly acknowledged that existing laws do not prohibit justices of the peace from partisan political activities. The argument is unacceptable. To begin with, House Bill No. 2676 was a proposed amendment to Rep. Act No. 180 as a whole and not merely to section 54 of said Rep. Act No. 180. In other words, House Bill No. 2676 was a proposed re-codification of the existing election laws at the time that it was filed. Besides, the proposed amendment, until it has become a law, cannot be considered to contain or manifest any legislative intent. If the motives, opinions, and the reasons expressed by the individual members of the legislature even in debates, cannot be properly taken into consideration in ascertaining the meaning of a statute (Crawford, Statutory Construction, Sec. 213, pp. 375-376), a fortiori what weight can We give to a mere draft of a bill. On law reason and public policy, defendant-appellee's contention that justices of the peace are not covered by the injunction of Section 54 must be rejected. To accept it is to render ineffective a policy so clearly and emphatically laid down by the legislature.

Our law-making body has consistently prohibited justices of the peace from participating in partisan politics. They were prohibited under the old Election Law since 1907 (Act No. 1582 and Act No. 1709). Likewise, they were so enjoined by the Revised Administrative Code. Another which expressed the prohibition to them was Act No. 3387, and later, Com. Act No. 357. Lastly, it is observed that both the Court of Appeals and the trial court applied the rule of "expressio unius, est exclusion alterius" in arriving at the conclusion that justices of the peace are not covered by Section 54. Said the Court of Appeals: "Anyway, guided by the rule of exclusion, otherwise known as expressio unius est exclusion alterius, it would not be beyond reason to infer that there was an intention of omitting the term "justice of the peace from Section 54 of the Revised Election Code. . . ." The rule has no application. If the legislature had intended to exclude a justice of the peace from the purview of Section 54, neither the trial court nor the Court of Appeals has given the reason for the exclusion. Indeed, there appears no reason for the alleged change. Hence, the rule of expressio unius est exclusion alterius has been erroneously applied. (Appellant's Brief, p. 6.) Where a statute appears on its face to limit the operation of its provisions to particular persons or things by enumerating them, but no reason exists why other persons or things not so enumerated should not have been included, and manifest injustice will follow by not so including them, the maxim expressio unius est exclusion alterius, should not be invoked. (Blevins v. Mullally 135 p. 307, 22 Cal. App. 519.) . FOR THE ABOVE REASONS, the order of dismissal entered by the trial court should be set aside and this case is remanded for trial on the merits. Bengzon, C.J., Bautista Angelo, Labrador, Concepcion, Barrera and Makalintal, JJ., concur. Padilla and Dizon, JJ., took no part. Reyes, J.B.L., J., is on leave.

The Lawphil Project - Arellano Law Foundation

lawphil

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14859 March 31, 1962

MACARIO KING, ET AL., petitioners-appellees, vs. PEDRO S. HERNAEZ, ETC., ET AL., respondents-appellants. Sycip, Salazar and Associates for petitioners-appellees. Office of the Solicitor General for respondents-appellants. BAUTISTA ANGELO, J.: On January 1, 1957, Macario King, a naturalized Filipino citizen, became the owner of the business establishment known as "Import Meat and Produce", a grocery wholesale and retail business, previously owned by the Philippine Cold Stores, Inc. In the business 15 persons were employed 12 of whom are Filipinos and the other 3 Chinese. The three Chinese were old employees of the previous owner, the Philippine Cold Stores, Inc., one having been employed as purchaser and the other two as salesmen. Three weeks after King had acquired the business as aforesaid, he sought permission from the President of the Philippines to retain the services of the three Chinese employees pursuant to Section 2-A of Commonwealth Act 108, coursing his letter thru the Secretary of Commerce and Industry. This official recommended to the President the disapproval of King's request on the ground that aliens may not be appointed to operate or administer a retail business under Section 1 of Republic Act No. 1180 which requires that its capital be wholly owned by citizens of the Philippines, the only exception thereto being the employment of technical personnel which may be allowed after securing to that effect an authorization from the President. The President approved the recommendation of the Secretary of Commerce and Industry since the positions of purchaser and salesmen occupied by the three Chinese employees are not technical positions within the meaning of Section 2-A of Commonwealth Act 108, as amended by Republic Act No. 134. As a result of such adverse ruling, Macario King and his three Chinese employees filed a petition for declaratory relief, injunction and mandamus on August 25, 1958 against the Secretary of Commerce and Industry and the Executive Secretary before the Court of First Instance of Manila praying that they be given relief because they are "uncertain and in doubt as to their rights and duties under Republic Act No. 1180 and Commonwealth Act No. 108, as amended by Republic Act No. 134, in view of the aforesaid rulings of the Department of Commerce and Industry and of the Executive Secretary." They alleged that said rulings are illegal in view of the respective situations and positions of petitioners in the retail establishment, the purpose and language of the laws abovementioned, and the constitutional guarantee of the rights of an employer to employ and of an employee to work accorded to citizens and aliens alike. The lower court issued a writ of preliminary injunction ex parte upon petitioners' filing a bond in the amount of P5,000.00.
1w ph1.t

Respondents filed an answer setting up certain affirmative and special defenses tending to show that the petition does not allege facts sufficient to constitute a cause of action. With regard to the declaratory relief, respondents claim that such remedy is not available to petitioners because they have already committed a breach of the statute which is apparent on the face of the

petition, meaning that the employment of the three Chinese as salesmen and purchaser in the store of Macario King is a violation of the Section 1 of the Retail Trade Act which provides that only citizens of the Philippines can engage in retail trade, as well as of Section 2-A of the Anti-Dummy Law which prohibits Chinese citizens to intervene in the management, operation, administration or control of such business, whether as an officer, employee or laborer with or without remuneration. Respondents further claim that the three Chinese employees are not technical men who are exempted from the operation of the law, and even if they are, they need the authorization of the President which they failed to obtain in their case. With regard to the petition for preliminary injunction, respondents contend that the requisites for its issuance have not been satisfied. And with regard to the petition for mandamus, respondents alleged that petitioners have failed to show that respondents have unlawfully neglected any duty which they are called upon to perform and which would make them liable for such relief. Hence, respondents prayed that the petition be dismissed and that the writ of preliminary injunction issued by the court ex parte be lifted. To this answer, petitioners filed a reply, which was followed by a rejoinder and sur-rejoinder, with a detailed discussion of the arguments advanced in support thereof. And because the motion to dismiss filed by respondents had been denied for lack of merit, trial proceeded, after which the lower court entered judgment holding "that petitioner Macario King may employ any person, although not a citizen of the Philippines or of the United States of America, including the three petitioners herein as purchaser and salesmen, in any position in his retail business not involving participation, or intervention in the management, operation, administration or control of said business; that petitioners Lim Pin, Chang Pak and Ng See Keng are entitled to continue as purchaser and salesmen, respectively, in Macario King's Import Meat and Produce or in any other retail establishment; that the writ of preliminary injunction issued against respondents ordering the to desist from interfering by criminal and/or administrative action with the rights of the petitioners as above defined, is hereby declared final; and, finally, respondents are hereby ordered to allow and permit petitioners to enjoy and exercise their rights in the manner and to the extent aforestated." Respondents took the present appeal before this Court. The center of controversy between petitioners-appellees and respondents-appellants hinges on the interpretation be given to Section 1, Republic Act No. 1180, in relation to Section 2-A, Commonwealth Act 108, as amended by Republic Act No. 134. For ready reference we quote the pertinent provisions: . SECTION 1. No person who is not a citizen of the Philippines, and no association, partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines, shall engage directly or indirectly in the retail business: ... (Emphasis supplied) . SEC. 2-A. Any person, corporation, or association which, having in its name or under its control, a right, franchise, privilege, property or business, the exercise or enjoyment of which is expressly reserved by the Constitution or the laws to citizens of the Philippines, or of any other specific country, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, permits or allows the use, exploitation or enjoyment thereof by a person, corporation or association not possessing the requisites prescribed by the Constitution or the laws of the Philippines; or leases, or in any other way transfers or conveys said right, franchise, privilege, property or business to a person, corporation or association not otherwise qualified under the Constitution, or the provisions of the existing laws; or in any manner permits or allows any person, not possessing the qualifications required by the Constitution or existing laws to acquire, use, exploit or enjoy a right, franchise, privilege, property or business, the exercise and enjoyment of which are expressly reserved by the Constitution or existing laws to citizens of the Philippines or of any other specific country, to intervene in the management, operation, administration or control thereof, whether as an officer, employee or laborer therein, with or without remuneration except technical personnel whose employment may be specifically authorized by the President of the Philippines upon recommendation of the Department Head concerned.... (emphasis supplied) . With regard to the Retail Trade Law, this Court had already occasion to rule on its constitutionality. We held that the same is valid and that its purpose is to completely nationalize the retail trade in the Philippines. In other words, its primordial purpose is to confine the privilege to engage in retail trade to Filipino citizens by prohibiting any person who is not a Filipino citizen or any entity whose capital is not wholly owned by citizens of the Philippines from engaging, directly or indirectly, in the retail business. The nationalization of retail trade is, therefore, complete in the sense that it must be wholly owned by a Filipino citizen or Filipino controlled entity in order that it may be licensed to operate. The law seeks a complete ban to aliens who may not engage in it directly or indirectly. And the reasons behind such ban are the pernicious and intolerable practices of alien retailers who in the past have either individually or in organized groups contrived in many dubious ways to control the trade and dominate the distribution of goods vital to the life of our people thereby resulting not only in the increasing dominance of alien control in retail trade but at times in the strangle hold on our economic life. These reasons were well expressed by Mr. Justice Labrador in the following wise: . "But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With

ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national retailers and of the producers and consumers alike, can be placed completely at their mercy... "... Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. (Lao H. Ichong v. Hernandez, et al., G.R. No. L-7995, May 31, 1957). The purpose of the enactment of the Retail Trade Law, therefore, is clear. As expressed by this Court, it is to translate the general preoccupation of the Filipinos against the threat and danger to our national economy caused by alien dominance and control of the retail business by weeding out such threat and danger and thus prevent aliens from having a strangle hold upon our economic life. But in so doing the legislature did not intend to deprive aliens of their means of livelihood. This is clearly pointed out in the explanatory note of the law: . This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are those who owe no allegiance to this Republic, who have no profound devotion to our free institutions and who have no permanent state in our people's welfare, we are not really the masters of our own country. All aspects of our life, even our national security, will be at the mercy of other people. In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security, it respects existing rights. It is in the light of this view of the Retail Trade Law that the issue was posed whether the prohibition to aliens from engaging in such trade is intended merely to ban them from its ownership and not from its management control or operation. However, from the context of the law as well as from the decision of this Court in the Ichong case, it may be safely inferred that the nationalization of the retail trade is merely confined to its ownership and not its management, control, or operation. Nevertheless, this apparent flaw in the Retail Trade Law cannot be availed of by an unscrupulous alien as a convenient pretext to employ in the management of his business persons of his ilk to flout the law or subvert its nationalistic purpose, for in pari materia with such law we have the Anti-Dummy Law (Commonwealth Act No. 108, as amended by Republic Act No. 134), which seeks "to punish acts of evasion of the laws of nationalization of certain rights, franchises or privileges." Read in

connection with the Retail Trade Law, the Anti-Dummy Law would punish acts intended to circumvent the provisions of the former law which nationalize the retail business. The question that now arises is: Is the employment of aliens in non-control positions in a retail establishment or trade prohibited by the Anti-Dummy Law? Petitioners contend that their employment is not prohibited either by the Retail Trade Law or the Anti-Dummy Law. The three Chinese petitioners testified that they had nothing to do with the management and control of the business, nor do they participate in its profits outside of their monthly salaries. They had been employed long before the enactment of Republic Act No. 1180. They only wait for customers and sell according to the prices appearing on the tags previously fixed by their manager Macario King. They desire to continue in the employ of Macario King in his business and their job is their only means of earning support for themselves and their families. Lim Pin who is employed as buyer declared that his duties include no more than buying the groceries appearing in a list prepared and given to him from time to time by Macario King, and at no more than the prices indicated in said list. Respondents did not present any evidence to contradict these facts, as they merely relied their motion to dismiss. It is evident that petitioners' theory is that since they do not intervene in the management, operation, administration or control of the retail establishment of Macario King they are not covered by the Anti-Dummy Law. Indeed, they contend, Section 1 of Republic Act No. 1180 mirrors the legislative intent to nationalize the retail trade merely thru the ownership by Filipinos of the business, and as stated by this Court in the Ichong case, the ownership of the retail business by non-citizens lies at the foundation of the prohibition, and since there is nothing in the Retail Trade Law which prohibits a Filipino-owned retail enterprise from employing an alien and the dummy law merely limits the prohibition to any position that relates to management, operation, administration or control, petitioners contend that they may be allowed to continue in their positions without doing violence to both the Retail Trade Law and the Anti-Dummy Law. In other words, they draw a line of distinction between one class of alien employees occupying positions of control and another class occupying non-control positions. Respondents, on the other hand, sustain a different view. They hold that the language of the Anti-Dummy Law bans aliens' employment in both control and non-control positions. They contend that the words management, operation, administration and control, followed by and blended with the words "whether as an officer, employee or laborer therein", signify the legislative intent to cover the entire scale of personnel activity so that even laborers are excluded from employment, the only exemption being technical personnel whose employment may be allowed with the previous authorization of the President. This contention, according to respondents, results from the application of the rule known in statutory construction as redendo singula singulis. This means that the antecedents "management, operation, administration and control" and the consequents "officer, employee, and laborer" should be read distributively to the effect that each word is to be applied to the subject to which it appears by context most properly relate and to which it is most applicable (Vol. 2, Sutherland, Statutory Construction, Section 4819). We agree to this contention of respondents not only because the context of the law seems to be clear on what its extent and scope seem to prohibit but also because the same is in full accord with the main objective that permeates both the Retail Trade Law and the Anti-Dummy Law. The one advocates the complete nationalization of the retail trade by denying its ownership to any alien, while the other limits its management, operation, administration and control to Filipino citizens. The prevailing idea is to secure both ownership and management of the retail business in Filipino hands. It prohibits a person not a Filipino from engaging in retail trade directly or indirectly while it limits the management, operation, administration and control to Filipino citizens. These words may be technically synonymous in the sense that they all refer to the exercise of a directing, restraining or governing influence over an affair or business to which they relate, but it cannot be denied that by reading them in connection with the positions therein enumerated one cannot draw any other conclusion than that they cover the entire range of employment regardless of whether they involve control or non-control activities. When the law says that you cannot employ an alien in any position pertaining to management, operation, administration and control, "whether as an officer, employee, or laborer therein", it only means one thing: the employment of a person who is not a Filipino citizen even in a minor or clerical or non-control position is prohibited. The reason is obvious: to plug any loophole or close any avenue that an unscrupulous alien may resort to flout the law or defeat its purpose, for no one can deny that while one may be employed in a non-control position who apparently is harmless he may later turn out to be a mere tool to further the evil designs of the employer. It is imperative that the law be interpreted in a manner that would stave off any attempt at circumvention of this legislative purpose. In this respect, we agree with the following remark of the Solicitor General: "Summing up, there is no point in distinguishing employments in positions of control from employments in non-control positions except to facilitate violations of the Anti-Dummy Law. It does not require ingenuity to realize that the law is framed up the way we find it so that no difficulties will be encountered in its enforcement. This is not the first time to use the words of the United States Supreme Court ... that a government wants to know, without being put to a search, that what it forbids is carried out effectively." . There is an intimation in the decision of the trial court that if the employment of aliens in non-control positions is prohibited as respondents so advocate, it may impair the right of a citizen under our Constitution to select, pick and employ any one who in his opinion may be amenable to his business provided he is not a criminal, a communist, or affected by a contagious disease, in the same manner as one may not be deprived of his right to associate with people of his own choice because those are

rights that are guaranteed by our Constitution. The language of the trial court on this matter follows: . There is no question that a Filipino citizen has a right under the Constitution and the laws of this Republic to engage in any lawful business, to select, pick and employ anyone who in his opinion may be amenable, congenial, friendly, understanding and profitable to his business provided that they are not originals, say communists, or affected by some contagious disease or morally unfit. The right to associate with our friends or people of our choice cannot be seriously contested in a democratic form of government. This is one of the most cherished privileges of a citizen. Nullify it and it will produce a communist control of action in our free movement and intercourse with our fellow citizens as now prevails in Russia and other Soviet satellites History has amply demonstrated that in countries where personal liberties are limited, curtailed or hampered, communism thrives; while in the lands where personal liberties are protected, democracy lives. We need but look at the horizon and see terrible and sinister shadows of some catastrophic events threatening to annihilate all our hopes and love for liberty if we are to traffic with our rights as citizens like any other ordinary commodities. It is our sacred and bounden duty to protect individual rights so that by their benign influence real democracy may be nurtured to full maturity. xxx xxx xxx

There is no need of any lengthy discussion as to the rights of a Filipino citizen to employ any person in his business provided the latter is not a criminal, affected with some contagious disease, or a recognized human derelict. The right to employ is the same as the right to associate. The right to associate is admittedly one of the most sacred privileges of a Filipino citizen. If a Filipino citizen has the right to employ any person in his business, has a naturalized citizen the same rights? We hold and sustain that under the Constitution and laws of this country, there is no difference between a natural-born citizen and a naturalized citizen, with the possible exception, as provided by the Constitution, that while the former can be President, Vice-President or member of Congress, the latter cannot. But outside of these exceptions, they have the same rights and privileges. It is hard to see how the nationalization of employment in the Philippines can run counter to any provision of our Constitution considering that its aim is not exactly to deprive citizen of a right that he may exercise under it but rather to promote enhance and protect those that are expressly accorded to a citizen such as the right to life, liberty and pursuit of happiness. The nationalization of an economic measure when founded on grounds of public policy cannot be branded as unjust, arbitrary or oppressive or contrary to the Constitution because its aim is merely to further the material progress and welfare of the citizens of a country. This is what we expressed in no uncertain terms in the Ichong Case when we declared constitutional the nationalization of the retail trade. Indeed, we said there that it is a law "clearly in the interest of the public, nay of the national security itself, and indisputability falls within the scope police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens." True, this fundamental policy was expressed in a decision the subject of which concerns the constitutionality of the Retail Trade Act, but since the Anti-Dummy Law is but a mere complement of the former in the sense that it is designed to make effective its aims and purposes and both tend to accomplish the same objective either by excluding aliens from owning any retail trade or by banning their employment if the trade is owned by Filipinos, and the target of both is "the removal and eradication of the shackles of foreign economic control and domination" thru the nationalization of the retail trade both in ownership and employment, the pronouncement made in one regarding its constitutionality applies equally if not with greater reason to the other both being complementary one to the other. Indeed, in nationalizing employment in retail trade the right of choice of an employer is not impaired but its sphere is merely limited to the citizens to the exclusion of those of other nationalities. We note that the case cited by the trial court to substantiate its conclusion that freedom to employ is guaranteed by our Constitution is Meyer v. Nebraska, 67 Law Ed. 1042, which is also the same case relied upon by petitioners in support of their proposition that "the liberty guaranteed by the Constitution includes the right to engage in any of the common occupations of life". We also note that this is the same case cited by counsel for Lao Itchong to support the same proposition in his advocacy of the unconstitutionality of the nationalization of the Retail Trade Law which did not deserve favorable consideration by this Court in the Itchong case. To refute counsel's argument that the retail trade is a common occupation the pursuit of which cannot be impaired and consequently the right to employ therein is guaranteed by our Constitution, suffice it to state that we brushed aside such theory in the Itchong case in view of the monopolistic control exercised by aliens in the retail business and their "deadly strangle hold on the national economy endangering the national security in times of crisis and emergency". The circumstances surrounding the enforcement of the Retail Trade Law being the very foundation of the Anti-Dummy Law the same circumstances that justify the rejection of counsel's proposition in the Itchong case should also apply with regard to the application of the Meyer case in the consideration of the constitutionality of the Anti-Dummy Law. The thinking of the lower court that the nationalization of employment in retail trade produces communistic control or impairs a right guaranteed by the Constitution to a citizen seems to have as basis its pronouncement that "the right to employ is the same as the right to associate". This promise has no foundation in law for it confuses the right of employment with the right of association embodied in the Bill of Rights of our Constitution. Section 1, paragraph 6, of said Bill of Rights, provides that "the

right to form associations or societies for purposes not contrary to law, shall not be abridged", and this has as its main purpose "to encourage the formation of voluntary associations so that thru the cooperative activities of individuals the welfare of the nation may be advanced."1Petitioners have never been denied the right to form voluntary associations. In fact, they can so organize to engage in any business venture of their own choosing provided that they comply with the limitations prescribed by our regulatory laws. These laws cannot be assailed as abridging our Constitution because they were adopted in the exercise of the police power of the State (Lao Itchong case, supra). Against the charge that this nationalization movement initiated by Congress in connection with several measures that affect the economic life of our people places the Philippines in a unique position in the free world, we have only to cite the cases of Commonwealth v. Hans, 81 N.E. 149, and Bloomfield v. State, 99 N.E. 309, which this Court considered as basic authorities for nationalization of legislative measures in the Lao Ichong case. Similar laws had been declared constitutional by the Supreme Court of California and the United States Supreme Court in a series of cases involving contracts under the Alien Land Law, and because of the similarities of the facts and laws involved therein we can consider the decisions rendered in said cases of persuasive force and effect in the determination of the present case. 2 We wish to add one word with regard to the procedural aspect raised in respondents' brief. It is respondents' theory that a complaint for declaratory relief will not prosper if filed after a contract or statute has been breached. The law does not even require that there shall be an actual pending case. It is sufficient that there is a breach of the law, or an actionable violation, to bar a complaint for declaratory judgment (Vol. 2, Moran, Comments on the Rules of Court, 1957 Ed., 145). The pertinent provisions of the Anti-Dummy Law postulate that aliens cannot be employed by Filipino retailers except for technical positions with previous authority of the President, and it is contended that Macario King had in his employ his Chinese co-petitioners for a period of more than 2 years in violation of Section 2-A of Republic Act No. 134. Hence, respondents contend, due to their breach of the law petitioners have forfeited their right to file the present action for declaratory relief. It appears, however, that alien petitioners were already in the employ of the establishment known as "Import Meat and Produce" previously owned by the Philippine Cold Stores, Inc. when Macario King acquired the ownership of said establishment and because of the doubt he entertained as regards the scope of the prohibition of the law King wrote the President of the Philippines to request permission to continue said petitioners in his employment, and immediately after the request was denied, he instituted the present petition for declaratory relief. It cannot, therefore, be said that King has already breached the law when he filed the present action.. WHEREFORE, the decision appealed from is reversed. This preliminary injunction issued by the trial court on December 6, 1958 is hereby lifted. The petition for mandamus is dismissed, with costs against appellees. Bengzon, C.J., Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur. Padilla, J., took no part. Footnotes
1

Sinco on Philippine Political Law, 10th ed., p. 647.

Porterfield v. U.S. Webb, 195 Cal. 71; Carter v. Utley, 195 Cal. 84; In re Y. Akado, 188 Cal 739; In re Okahara, 191 Cal. 353: O'Brien v. Webb, 263 U.S. 313, 68 L. Ed., 318; Terrace v. Thompson, 263 U.S 197, 68 L. Ed., 255; Porterfield v. Webb, 263 U.S. 326, 68 L. Ed., 278; Frick v. Webb, 326 L. Ed., 323.

The Lawphil Project - Arellano Law Foundation

Latin phrases in statutory construction

Posted on March 23, 2009 by danabatnag

He says: You are the one I love the most among the women in my life, and that includes my mother, my sister and my grandmother. You ask him, Is that ejusdem generis or expressio unius? And he answers, Ejusdem generis. Should you slap him or kiss him? Heres a short reviewer on some Latin phrases in Legal Method. The phrases are followed by a very short description of cases that illustrate the Latin rule. The definitions are taken from Agpalos book on Statutory Construction. NOSCITUR A SOCIIS Words must be construed in conjunction with the other words and phrases used in the text. Legislative intent must be ascertained from a consideration of the statute as a whole. The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. Where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be clear and specific by considering the company in which it is found or with which it is associated. Aisporna vs. CA: wife of insurance agent prosecuted for having sold an insurance without registering as an agent. Using this doctrine, the Court ruled that an insurance agent is one who sells insurance in return for compensation, and it was not proved that Aisporna received compensation for the insurance she was alleged to have sold. (Her defense was that as her husbands clerk, she only renewed the insurance because her husband was out at the time). Dai-Chi Electronics Manufacturing Corp. v. Villarama: Dai-Chi filed a complaint against Villarama for violating an agreement that he would not join the companys competitor within two years after leaving Dai-Chi. Dai-Chi filed a complaint against Villarama at the RTC, which dismissed it on grounds of lack of jurisdiction, for it should have been filed before a labor arbiter. Using the doctrine of noscitur a sociis, the court ruled that while the Labor Code says that all money claims of workers were under the jurisdiction of the Labor Arbiter, it did not mean to encompass the entire universe of money claims that might be asserted by workers against their employers. Paragraph 3 should not be read in isolation, but rather in conjunction with paragraphs 1 to 5, which all refer to money claims of workers arising from violations of or in connection with an employee-employer relationship. DaiChis complaint was anchored on a violation of contract, since Villarama was no longer an employee. The court ruled that the RTC was the proper venue for filing of the case. EJUSDEM GENERIS Where a statute describes things of particular class or kind accompanied by words of a generic character, the generic words will usually be limited to things of a kindred nature with those particularly enumerated, unless there be something in the context of the statute to repel such influence. Ejusdem generis could be expansive, however, because the list is not exclusive; it may be expanded if a juridical tie could be found with another item. Magtajas v. Pryce Properties Corp: Because gambling was with the phrase and other prohibited games of chance it was construed to refer only to illegal gambling. PBA v CA: Where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. EXPRESSIO UNIUS EST EXCLUSION ALTERIUS The express mention of one person, thing, or consequence implies the exclusion of all others. Variation: Expressium facit cessare tacitum. What is expressed puts an end to what is implied. Where a statute is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. Canon of restrictive interpretation. Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned. Malinias v Comelec: An attempt to use an administrative charge for a criminal complaint against police officers accused of violating the election code. The court ruled that not all violations of the election code provided for criminal penalties and in this case, the violated provisions only warrant the imposition of administrative, not criminal, penalties. Centeno v Villalon-Pornillos: A group of old men charged with violating the solicitation permit law was acquitted because the term religious purpose was not expressly included in the provisions of the statute, and what the law does not include, it excludes. The law referred only to charitable purposes, which phrase cannot be construed so as to include a religious purpose.

DISSIMILUM DISSIMILIS EST RATIO The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. Garvida v. Sales: Sales sought to have Garvida disqualified from the SK post because of age. The court ruled that while the Local Govt Code provided that SK members should be 21 years old, it added a qualification that should officials should be 21 years old on the date of election. Garvida was disqualified because she was more than 21 years old, although she was less than 22 years old. CASUS OMISSUS Casus omissus pro omisso habendus est. A person, object, or thing omitted from an enumeration in a statute must be held to have been omitted intentionally. This needs two laws. In expressio unius, its just the enumeration you are looking at, not another law. COA of the Province of Cebu v Province of Cebu: This case is about the effects of a new law on an old law. The Special Education Fund (SEF) allowed the use of part of the realty and cigarette taxes for extension programs and scholarships. When the Cebu provincial office used it to pay for salaries of teachers and scholars, COA said those were not chargeable to the SEF since RA 5447, which created the SEF, was deemed repealed by the Local Govt Code. Because the two retained sections in the LGC omitted the scholarship grants, the court ruled that what was omitted must have been omitted intentionally, and so may not be included. UBI LEX NON DISTINGUIT NEC NOS DISTINGUERE DEBEMOS Where the law makes no distinctions, one does not distinguish. Where the law does not distinguish, courts should not distinguish. Ramirez v CA: The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. Cebu Institute of Medicine v Cebu Institute of Medicine Employees Union-National Federation of Labor: Other benefits may refer to SSS, Medicare, Pagibig and may be taken from the 70% tuition increase since the law only says that money from this may be given to employees in the form of salaries and other benefits. Since the law did not distinguish between other benefits and SSS, etc, these may be deducted from the 70% increase in tuition charged by the school. REDEENDO SINGULAR SINGULIS Referring each to each; let each be put in its proper place, that is, the words should be taken distributively. Amadora v CA: Teachers should apply to pupils and students; and heads of establishment of arts and trades to apprentices. The teacher in charge must answer for a students tort, but in this case none of those charged were either the teacher in charge or the dean of boys. People vs Tamani: Promulgation should refer to judgment and notice should refer to order. The computation of the filing of the petition was wrong. (This was an obiter because the filing was late either way it is computed, and the court decided on the case anyway).

lawphil

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 93468 December 29, 1994 NATIONAL ASSOCIATION OF TRADE UNIONS (NATU)-REPUBLIC PLANTERS BANK SUPERVISORS CHAPTER,petitioner, vs. HON. RUBEN D. TORRES, SECRETARY OF LABOR AND EMPLOYMENT and REPUBLIC PLANTERS BANK,respondents. Filemon G. Tercero for petitioner. The Government Corporate Counsel for Republic Planters Bank.

BELLOSILLO, J.: NATIONAL ASSOCIATION OF TRADE UNIONS (NATU)-REPUBLIC PLANTERS BANK SUPERVISORS CHAPTER seeks nullification of the decision of public respondent Secretary of Labor dated 23 March 1990, which modified the order of MedArbiter Manases T. Cruz dated 17 August 1989 as well as his order dated 20 April 1990 denying reconsideration. On 17 March 1989, NATU filed a petition for certification election to determine the exclusive bargaining representative of respondent Bank's employees occupying supervisory positions. On 24 April 1989, the Bank moved to dismiss the petition on the ground that the supposed supervisory employees were actually managerial and/or confidential employees thus ineligible to join, assist or form a union, and that the petition lacked the 20% signatory requirement under the Labor Code. On 17 August 1989, Med-Arbiter Manases T. Cruz granted the petition thus WHEREFORE, . . . let a certification election be ordered conducted among all the regular employees of the Republic Planters Bank occupying supervisory positions or the equivalent within 20 days from receipt of a copy of this Order. The choice shall be: (1) National Association of Trade Unions (NATU)-Republic Planters Bank Supervisors Chapter; and (2) No Union.

The payroll three months prior to the filing of this petition shall be utilized in determining the list of eligible voters . . . . 1
Respondent Bank appealed the order to the Secretary of Labor on the main ground that several of the employees sought to be included in the certification election, particularly the Department Managers, Branch Managers/OICs, Cashiers and Controllers were managerial and/or confidential employees and thus ineligible to join, assist or form a union. It presented annexes detailing the job description and duties of the positions in question and affidavits of certain employees. It also invoked provisions of the General Banking Act and the Central Bank Act to show the duties and responsibilities of the bank and its branches. On 23 March 1990, public respondent issued a decision partially granting the appeal, which is now being challenged before us

WHEREFORE, . . . the appeal is hereby partially granted. Accordingly, the Order dated 17 August 1989 is modified to the extent that Department Managers, Assistant Managers, Branch Managers, Cashiers and Controllers are declared managerial employees. Perforce, they cannot join the union of supervisors such as Division Chiefs, Accounts Officers, Staff Assistants and OIC's (sic) unless the latter are regular managerial employees . . . . 2
NATU filed a motion for reconsideration but the same was denied on 20 April 1990. 3 Hence this recourse assailing public respondent for rendering the decision of 23 March 1990 and the order of 20 April 1990 both with grave abuse of discretion. The crucial issue presented for our resolution is whether the Department Managers, Assistant Managers, Branch Managers/OICs, Cashiers and Controllers of respondent Bank are managerial and/or confidential employees hence ineligible to join or assist the union of petitioner. NATU submits that an analysis of the decision of public respondent readily yields certain flaws that result in erroneous conclusions. Firstly, a branch does not enjoy relative autonomy precisely because it is treated as one unit with the head office and has to comply with uniform policies and guidelines set by the bank itself. It would be absurd if each branch of a particular bank would be adopting and implementing different policies covering multifarious banking transactions. Moreover, respondent Bank's own evidence clearly shows that policies and guidelines covering the various branches are set by the head office. Secondly, there is absolutely no evidence showing that bank policies are laid down through the collective action of the Branch Manager, the Cashier and the Controller. Thirdly, the organizational setup where the Branch Manager exercises control over branch operations, the Controller controls the Accounting Division, and the Cashier controls the Cash Division, is nothing but a proper delineation of duties and responsibilities. This delineation is a Central Bank prescribed internal control measure intended to objectively establish responsibilities among the officers to easily pinpoint culpability in case of error. The "dual control" and "joint custody" aspects mentioned in the decision of public respondent are likewise internal control measures prescribed by the Central Bank. Neither is there evidence showing that subject employees are vested with powers or prerogatives to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. The bare allegations in the affidavits of respondent Bank's Executive Assistant to the President 4 and the Senior Manager of the Human Resource Management Department 5 that those powers and prerogatives are inherent in subject positions are self-serving. Their claim cannot be made to prevail upon the actual duties and responsibilities of subject employees. The other evidence of respondent Bank which purports to show that subject employees exercise managerial functions even belies such claim. Insofar as Department Managers and Assistant Managers are concerned, there is absolutely no reason mentioned in the decision why they are managerial employees. Not even respondent Bank in its appeal questioned the inclusion of Assistant Managers among the qualified petitioning employees. Public respondent has deviated from the real issue in this case, which is, the determination of whether subject employees are managerial employees within the contemplation of the Labor Code, as amended by RA 6715; instead, he merely concentrated on the nature, conduct and management of banks conformably with the General Banking Act and the Central Bank Act. Petitioner concludes that subject employees are not managerial employees but supervisors. Even assuming that they are confidential employees, there is no legal prohibition against confidential employees who are not performing managerial functions to form and join a union. On the other hand, respondent Bank maintains that the Department Managers, Branch Managers, Cashiers and Controllers are inherently possessed of the powers enumerated in Art. 212, par. (m), of the Labor Code. It relies heavily on the affidavits of its Executive Assistant to the President and Senior Manager of the Human Resource Department. The Branch Managers, Cashiers and Controllers are vested not only with policy-making powers necessary to run the affairs of the branch, given the independence and relative autonomy which it enjoys in the pursuit of its goals and objectives, but also with the concomitant disciplinary authority over the employees. The Solicitor General argues that NATU loses sight of the fact that by virtue of the appeal of respondent Bank, the whole case is thrown open for consideration by public respondent. Even errors not assigned in the appeal, such as the exclusion by the Med-Arbiter of Assistant Managers from the managerial employees category, is within his discretion to consider as it is closely related to the errors properly assigned. The fact that Department Managers are managerial employees is borne out by the evidence of petitioner itself. Furthermore, while it assails public respondent's finding that subject employees are managerial employees, petitioner never questioned the fact that said officers also occupy confidential positions and thus remain prohibited from forming or joining any labor organization. Respondent Bank has no legal personality to move for the dismissal of the petition for certification election on the ground that

its supervisory employees are in reality managerial employees. An employer has no standing to question the process since this is the sole concern of the workers. The only exception is where the employer itself has to file the petition pursuant to Art. 258 of the Labor Code because of a request to bargain collectively. 6 Public respondent, invoking RA 6715 and the inherent functions of Department Managers, Assistant Managers, Branch Managers, Cashiers and Controllers, held that these officers properly fall within the definition of managerial employees. The ratiocination in his Decision of 23 March 1990 7 is that Republic Act No. 6715, otherwise known as the Herrera-Veloso Law, restored the right of supervisors to form their own unions while maintaining the proscription on the right to selforganization of managerial employees. Accordingly, the Labor Code, as amended, distinguishes managerial, supervisory and rank-and-file employees thus: Art. 212 (m) Managerial employee is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions, if the exercise of such managerial authority is not routinary in nature but requires the use of independent judgment. All employees not falling within any of the above definitions are considered rank-and-file employees (emphasis supplied). At first glance, pursuant to the above-definitions and based on their job descriptions as guideposts, there would seem to be no difficulty in distinguishing a managerial employee from that of a supervisor, or from that of a mere rank-and-file employee. Yet, this task takes on a different dimension when applied to banks, particularly the branches thereof. This is so because unlike ordinary corporations, a bank's organizational operation is governed and regulated by the General Banking Act and the Central Bank Act, both special laws . . . . As pointed out by the respondent, in the banking industry, a branch is the microcosm of a banking institution, uniquely autonomous and self-governing. This relative autonomy of a branch finds legal basis in Section 27 of the General Banking Act, as amended, thus: . . . . The bank shall be responsible for all business conducted in such branches to the same extent and in the same manner as though such business had all been conducted in the head office. For the purpose of this Act, a bank and its branches shall be treated as a unit (emphasis supplied). Conformably with the above, bank policies are laid down and/or executed through the collective action of the Branch Manager, Cashier and Controller at the branch level. The Branch Manager exercises over-all control and supervision over branch operation being on the top of the branch's pyramid structure. However, both the controller and the cashier who are called in banking parlance as "Financial Managers" due to their fiscal functions are given such a share and sphere of responsibility in the operations of the bank. The cashier controls and supervises the cash division while the controller that of the Accounting Division. Likewise, their assigned task is of great significance, without which a bank or branch for that matter cannot operate or function. Through the collective action of these three branch officers operational transactions are carried out like: The two (2)-signature requirement of the manager, on one hand, and that of the controller or cashier on the other hand as required in bank's issuances and releases. This is the so-called "dual control" through check-and-balance as prescribed by the Central Bank, per Section 1166.6, Book I, Manual of Regulations for Banks and Financial Intermediaries. Another is in the joint custody of the branch's cash in vault, accountable forms, collaterals, documents of title, deposit, ledgers and others, among the branch manager and at least two (2) officers of the branch as required under Section 1166.6 of the Manual of Regulations for Banks and Other Financial Intermediaries.

This structural set-up creates a triad of managerial authority among the branch manager, cashier and controller. Hence, no officer of the bank ". . . have (sic) complete authority and responsibility for handling all phases of any transaction from beginning to end without some control or balance from some other part of the organization" (Section 1166.3, Division of Duties and Responsibilities, Ibid).This aspect in the banking system which calls for the division of duties and responsibilities is a clear manifestation of managerial power and authority. No operational transaction at branch level is carried out by the singular act of the Branch Manager but rather through the collective act of the Branch Manager, Cashier/Controller (emphasis supplied). Noteworthy is the "on call client" set up in banks. Under this scheme, the branch manager is tasked with the responsibility of business development and marketing of the bank's services which place him on client call. During such usual physical absences from the branch, the cashier assumes the reins of branch control and administration. On those occasions, the "dual control system" is clearly manifest in the transactions and operations of the branch bank as it will then require the necessary joint action of the controller and the cashier. The grave abuse of discretion committed by public respondent is at once apparent. Art. 212, par. (m), of the Labor Code is explicit. A managerial employee is (a) one who is vested with powers or prerogatives to lay down and execute management policies, or to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees; or (b) one who is vested with both powers or prerogatives. A supervisory employee is different from a managerial employee in the sense that the supervisory employee, in the interest of the employer, effectively recommends such managerial actions, if the exercise of such managerial authority is not routinary in nature but requires the use of independent judgment. Ranged against these definitions and after a thorough examination of the evidence submitted by both parties, we arrive at a contrary conclusion. Branch Managers, Cashiers and Controllers of respondent Bank are not managerial employees but supervisory employees. The finding of public respondent that bank policies are laid down and/or executed through the collective action of these employees is simply erroneous. His discussion on the division of their duties and responsibilities does not logically lead to the conclusion that they are managerial employees, as the term is defined in Art. 212, par. (m). Among the general duties and responsibilities of a Branch Manager is "[t]o discharge his duties and authority with a high sense of responsibility and integrity and shall at all times be guided by prudence like a good father of the family, and sound judgment in accordance with and within the limitations of the policy/policies promulgated by the Board of Directors and implemented by the Management until suspended, superseded, revoked or modified" (par. 5, emphasis supplied). 8 Similarly, the job summary of a Controller states: "Supervises the Accounting Unit of the branch; sees to the compliance by the Branch with established procedures, policies, rules and regulations of the Bank and external supervising authorities; sees to the strict implementation of control procedures (emphasis supplied). 9 The job description of a Cashier does not mention any authority on his part to lay down policies, either. 10 On the basis of the foregoing evidence, it is clear that subject employees do not participate in policy-making but are given approved and established policies to execute and standard practices to observe, 11 leaving little or no discretion at all whether to implement said policies or not. 12 It is the nature of the employee's functions, and not the nomenclature or title given to his job, which determines whether he has rank-and-file, supervisory or managerial status. 13 Moreover, the bare statement in the affidavit of the Executive Assistant to the President of respondent Bank that the Branch Managers, Cashiers and Controllers "formulate and implement the plans, policies and marketing strategies of the branch towards the successful accomplishment of its profit targets and objectives," 14 is contradicted by the following evidence submitted by respondent Bank itself:

(a) Memorandum issued by respondent Bank's Assistant Vice President to all Regional Managers and Branch Managers giving them temporary discretionary authority to grant additional interest over the prescribed board rates for both shortterm and long-term CTDs subject, however, to specific limitations and guidelines set forth in the same memorandum; 15 (b) Memorandum issued by respondent Bank's Executive Vice President to all Regional Managers and Branch Officers regarding the policy and guidelines on drawing against uncollected deposits (DAUD); 16 (c) Memorandum issued by respondent Bank's President to all Field Offices regarding the guidelines on domestic bills purchased (DBP); 17 and

(d) Memorandum issued by the same officer to all Branch Managers regarding lending authority at the branch level and the terms and conditions thereof. 18
As a consequence, the affidavit of the Executive Assistant cannot be given any weight at all. Neither do the Branch Managers, Cashiers and Controllers have the power to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. The Senior Manager of the Human Resource Management Department of respondent Bank, in her affidavit, stated that "the power to hire, fire, suspend, transfer, assign or otherwise impose discipline among subordinates within their respective jurisdictions is lodged with the heads of the various departments, the branch managers and officers-incharge, the branch cashiers and the branch controllers. Inherent as it is in the aforementioned positions, the authority to hire, fire, suspend, transfer, assign or otherwise discipline employees within their respective domains was deemed unnecessary to be incorporated in their individual job descriptions; By way of illustration, on August 24, 1989, Mr. Renato A. Tuates, the Officerin-Charge/Branch Cashier of the Bank's Dumaguete Branch, placed under preventive suspension and thereafter terminated the teller of the same branch . . . . Likewise, on February 22, 1989, Mr. Francis D. Robite, Sr., the Officer-in-Charge of International Department, assigned the cable assistant of the International Department as the concurrent FCDU Accountable Forms Custodian." 19 However, a close scrutiny of the memorandum of Mr. Tuates reveals that he does not have said managerial power because as plainly stated therein, it was issued "upon instruction from Head Office." 20 With regard to the memorandum of Mr. Robite, Sr., it appears that the power he exercised was merely in an isolated instance, taking into account the other evidence submitted by respondent Bank itself showing lack of said power by other Branch Managers/OICs: (a) Memorandum from the Branch Manager for the AVP-Manpower Management Department expressing the opinion that a certain employee, due to habitual absenteeism and tardiness, must be penalized in accordance with respondent Bank's Code of Discipline; and (b) Memorandum from a Branch OIC for the Assistant Vice President recommending a certain employee's promotional adjustment to the present position he occupies. Clearly, those officials or employees possess only recommendatory powers subject to evaluation, review and final action by higher officials. Therefore, the foregoing affidavit cannot bolster the stand of respondent Bank. The positions of Department Managers and Assistant Managers were also declared by public respondent as managerial, without providing any basis therefor. Petitioner asserts that the position of Assistant Manager was not even included in the appeal filed by respondent Bank. While we agree with the Office of the Solicitor General that it is within the discretion of public respondent to consider an unassigned issue that is closely related to an issue properly assigned, still, public respondent's error lies in the fact that his finding has no leg to stand on. Anyway, inasmuch as the entire records are before us, now is the opportunity to discuss this issue. We analyzed the evidence submitted by respondent Bank in support of its claim that Department Managers are managerial employees 21 and concluded that they are not. Like Branch Managers, Cashiers and Controllers, Department Managers do not possess the power to lay down policies nor to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees. They occupy supervisory positions, charged with the duty among others to "recommend proposals to improve and streamline operations." 22 With respect to Assistant Managers, there is absolutely no evidence submitted to substantiate public respondent's finding that they are managerial employees; understandably so, because this position is not included in the appeal of respondent Bank. As regards the other claim of respondent Bank that Branch Managers/OICs, Cashiers and Controllers are confidential employees, having control, custody and/or access to confidential matters, e.g., the branch's cash position, statements of financial condition, vault combination, cash codes for telegraphic transfers, demand drafts and other negotiable instruments, 23 pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody,24 this claim is not even disputed by petitioner. A confidential employee is one entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employer's property. 25 While Art. 245 of the Labor Code singles out managerial employees as ineligible to join, assist or form any labor organization, under the doctrine of necessary implication, confidential employees are similarly disqualified. This doctrine states that what is implied in a statute is as much a part thereof as that which is expressed, as elucidated in several cases 26 the latest of which is Chua v. Civil Service Commission 27 where we said: No statute can be enacted that can provide all the details involved in its application. There is always an omission that may not meet a particular situation. What is thought, at the time of enactment, to be an all-embracing legislation may be inadequate to provide for the unfolding

events of the future. So-called gaps in the law develop as the law is enforced. One of the rules of statutory construction used to fill in the gap is the doctrine of necessary implication . . . . Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis . . . . In applying the doctrine of necessary implication, we took into consideration the rationale behind the disqualification of managerial employees expressed in Bulletin Publishing Corporation v. Sanchez, 28 thus: ". . . if these managerial employees would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. The Union can also become company-dominated with the presence of managerial employees in Union membership." Stated differently, in the collective bargaining process, managerial employees are supposed to be on the side of the employer, to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees themselves are union members. Collective bargaining in such a situation can become onesided. 29 It is the same reason that impelled this Court to consider the position of confidential employees as included in the disqualification found in Art. 245 as if the disqualification of confidential employees were written in the provision. If confidential employees could unionize in order to bargain for advantages for themselves, then they could be governed by their own motives rather than the interest of the employers. Moreover, unionization of confidential employees for the purpose of collective bargaining would mean the extension of the law to persons or individuals who are supposed to act "in the interest of" the employers. 30 It is not farfetched that in the course of collective bargaining, they might jeopardize that interest which they are duty-bound to protect. Along the same line of reasoning we held in Golden Farms, Inc. v. Ferrer-Calleja 31 reiterated in Philips Industrial Development, Inc. v. NLRC, 32 that "confidential employees such as accounting personnel, radio and telegraph operators who, having access to confidential information, may become the source of undue advantage. Said employee(s) may act as spy or spies of either party to a collective bargaining agreement." In fine, only the Branch Managers/OICs, Cashiers and Controllers of respondent Bank, being confidential employees, are disqualified from joining or assisting petitioner Union, or joining, assisting or forming any other labor organization. But this ruling should be understood to apply only to the present case based on the evidence of the parties, as well as to those similarly situated. It should not be understood in any way to apply to banks in general. WHEREFORE, the petition is partially GRANTED. The decision of public respondent Secretary of Labor dated 23 March 1990 and his order dated 20 April 1990 are MODIFIED, hereby declaring that only the Branch Managers/OICs, Cashiers and Controllers of respondent Republic Planters Bank are ineligible to join or assist petitioner National Association of Trade Unions (NATU)-Republic Planters Bank Supervisors Chapter, or join, assist or form any other labor organization. SO ORDERED. Davide, Jr., Quiason and Kapunan, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting: I concur in the majority opinion's conclusion that respondent Bank's Branch Managers/OICs, Cashiers and Controllers, being confidential employees of the Bank, are disqualified from joining or assisting petitioner labor union or joining, assisting or forming any other labor organization, including a supervisor's union. However, I dissent from its conclusion that respondent Bank's Department Managers and Department Assistant Managers are not disqualified from joining a labor union including a supervisors' union. My years of experience in the banking industry (perhaps irrelevant to this case) have shown that positions of such Department Heads (Managers) are as confidential, if not more, than the position of Branch Managers. In fact, most of such Department Heads are Vice-Presidents of the Bank, which

underscores their status both as managerial employees and confidential personnel of the Bank. It would be incongruous for a Department Manager who, as already stated, is usually a Vice-President, to be a member of the same labor organization as his messenger or supervisory account executives. It would be even more untenable and dangerous for a Department Manager who usually is a Vice-President, being a member of a labor union, to be designated a union representative for purposes of collective bargaining with the management of which he is a part. I think the public respondent is correct in disqualifying from membership in a labor union of supervisors, those who are Department Managers and Assistant Managers. I, therefore, vote for the affirmance in toto of public respondent's decision of 23 March 1990 and order of 20 April 1990.

# Separate Opinions

PADILLA, J., concurring and dissenting: I concur in the majority opinion's conclusion that respondent Bank's Branch Managers/OICs, Cashiers and Controllers, being confidential employees of the Bank, are disqualified from joining or assisting petitioner labor union or joining, assisting or forming any other labor organization, including a supervisor's union. However, I dissent from its conclusion that respondent Bank's Department Managers and Department Assistant Managers are not disqualified from joining a labor union including a supervisors' union. My years of experience in the banking industry (perhaps irrelevant to this case) have shown that positions of such Department Heads (Managers) are as confidential, if not more, than the position of Branch Managers. In fact, most of such Department Heads are Vice-Presidents of the Bank, which underscores their status both as managerial employees and confidential personnel of the Bank. It would be incongruous for a Department Manager who, as already stated, is usually a Vice-President, to be a member of the same labor organization as his messenger or supervisory account executives. It would be even more untenable and dangerous for a Department Manager who usually is a Vice-President, being a member of a labor union, to be designated a union representative for purposes of collective bargaining with the management of which he is a part. I think the public respondent is correct in disqualifying from membership in a labor union of supervisors, those who are Department Managers and Assistant Managers. I, therefore, vote for the affirmance in toto of public respondent's decision of 23 March 1990 and order of 20 April 1990.
#Footnotes

1 Rollo, p. 33. 2 Id., p. 28. 3 Id., pp. 18-19. 4 Id., pp. 103-106. 5 Id., pp. 112-113. 6 Philippine Telegraph and Telephone Corporation v. Laguesma, G.R. No. 101730, 17 June 1993, 223 SCRA 452. 7 Decision of public respondent Secretary of Labor promulgated 23 March 1990, Annex "B," Petition;Rollo, pp. 24-26. 8 Records, p. 111. 9 Id., p. 94. 10 Id., pp. 91-92.

11 Franklin Baker Company of the Philippines v. Trajano, G.R. No. 75039, 28 January 1988, 157 SCRA 416. 12 Southern Philippines Federation of Labor (SPFL) v. Calleja, G.R. No. 80882, 24 April 1989, 172 SCRA 676. 13 See Batongbacal v. Associated Bank, G.R. No. 72977, 21 December 1988, 168 SCRA 600. 14 Records, pp. 249-250. 15 Rollo, pp. 201-203. 16 Id., pp. 204-205. 17 Id., pp. 206-207. 18 Id., p. 208. 19 Records, pp. 239-240. 20 Id., pp. 233-238. 21 Records, pp. 112-115. 22 Rollo, p. 170. 23 Records, pp. 120-121. 24 Id., p. 265. 25 See Panday v. NLRC, G.R. No. 67664, 20 May 1992, 209 SCRA 122. 26 In re Dick, 38 Phil. 41 [1918]; City of Manila v. Gomez, No. L-37251, 31 August 1981, 107 SCRA 98; Escribano v. Avila, No. L-30375, 12 September 1978, 85 SCRA 245; Go Chico v. Martinez, 45 Phil. 256 [1923]; Gatchalian v. COMELEC, No. L-32560, 22 October 1970, 35 SCRA 435; People v. Uy Jui Pio, 102 Phil. 679 [1957]; People v. Aquino, 83 Phil. 614 [1949]. 27 G.R. No. 88979, 7 February 1992, 206 SCRA 65, and cited cases therein. 28 G.R. No. 74425, 7 October 1986, 144 SCRA 628, 635. 29 Alcantara, Samson S., Philippine Labor and Social Legislation Annotated, 1991 Ed., p. 455. 30 Pascual, Crisolito, Labor Relations Law, 1986 ed., p. 159. 31 G.R. No. 78755, 19 July 1989, 175 SCRA 471. 32 G.R. No. 88957, 25 June 1992, 210 SCRA 339.

The Lawphil Project - Arellano Law Foundation

lawphil

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 147791 September 8, 2006

CONSTRUCTION DEVELOPMENT CORPORATION OF THE PHILIPPINES, petitioner, vs. REBECCA G. ESTRELLA, RACHEL E. FLETCHER, PHILIPPINE PHOENIX SURETY & INSURANCE INC., BATANGAS LAGUNA TAYABAS BUS CO., and WILFREDO DATINGUINOO, respondents. DECISION YNARES-SANTIAGO, J.:

This petition for review assails the March 29, 2001 Decision 1 of the Court of Appeals in CA-G.R. CV No. 46896, which affirmed with modification the February 9, 1993 Decision2 of the Regional Trial Court of Manila, Branch 13, in Civil Case No. R-82-2137, finding Batangas Laguna Tayabas Bus Co. (BLTB) and Construction Development Corporation of the Philippines (CDCP) liable for damages. The antecedent facts are as follows: On December 29, 1978, respondents Rebecca G. Estrella and her granddaughter, Rachel E. Fletcher, boarded in San Pablo City, a BLTB bus bound for Pasay City. However, they never reached their destination because their bus was rammed from behind by a tractor-truck of CDCP in the South Expressway. The strong impact pushed forward their seats and pinned their knees to the seats in front of them. They regained consciousness only when rescuers created a hole in the bus and extricated their legs from under the seats. They were brought to the Makati Medical Center where the doctors diagnosed their injuries to be as follows: Medical Certificate of Rebecca Estrella Fracture, left tibia mid 3rd Lacerated wound, chin Contusions with abrasions, left lower leg Fracture, 6th and 7th ribs, right3 Medical Certificate of Rachel Fletcher Extensive lacerated wounds, right leg posterior aspect popliteal area and antero-lateral aspect mid lower leg with severance of muscles. Partial amputation BK left leg with severance of gastro-soleus and antero-lateral compartment of lower leg. Fracture, open comminuted, both tibial4 Thereafter, respondents filed a Complaint5 for damages against CDCP, BLTB, Espiridion Payunan, Jr. and Wilfredo Datinguinoo before the Regional Trial Court of Manila, Branch 13. They alleged (1) that Payunan, Jr. and Datinguinoo, who were the drivers of CDCP and BLTB buses, respectively, were negligent and did not obey traffic laws; (2) that BLTB and CDCP did not exercise the diligence of a good father of a family in the selection and supervision of their employees; (3) that BLTB allowed its bus to operate knowing that it lacked proper maintenance thus exposing its passengers to grave danger; (4) that they suffered actual damages amounting to P250,000.00 for Estrella and P300,000.00 for Fletcher; (5) that they suffered physical discomfort, serious anxiety, fright and mental anguish, besmirched reputation and wounded feelings, moral shock, and lifelong social humiliation; (6) that defendants failed to act with justice, give respondents their due, observe honesty and good faith which entitles them to claim for exemplary damage; and (7) that they are entitled to a reasonable amount of attorney's fees and litigation expenses. CDCP filed its Answer6 which was later amended to include a third-party complaint against Philippine Phoenix Surety and Insurance, Inc. (Phoenix).7 On February 9, 1993, the trial court rendered a decision finding CDCP and BLTB and their employees liable for damages, the dispositive portion of which, states: WHEREFORE, judgment is rendered: In the Complaint 1. In favor of the plaintiffs and against the defendants BLTB, Wilfredo Datinguinoo, Construction and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr., ordering said defendants, jointly and severally to pay the plaintiffs the sum of P79,254.43 as actual damages and to pay the sum of P10,000.00 as attorney's fees or a total of P89,254.43; 2. In addition, defendant Construction and Development Corporation of the Philippines and defendant Espiridion Payunan, Jr., shall pay the plaintiffs the amount of Fifty Thousand (P50,000.00) Pesos to plaintiff Rachel Fletcher and Twenty Five Thousand (P25,000.00) Pesos to plaintiff Rebecca Estrella; 3. On the counterclaim of BLTB Co. and Wilfredo Datinguinoo

Dismissing the counterclaim; 4. On the crossclaim against Construction and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr. Dismissing the crossclaim; 5. On the counterclaim of Construction and Development Corporation of the Philippines (now PNCC) Dismissing the counterclaim; 6. On the crossclaim against BLTB Dismissing the crossclaim; 7. On the Third Party Complaint by Construction and Development Corporation of the Philippines against Philippine Phoenix Surety and Insurance, Incorporated Dismissing the Third Party Complaint. SO ORDERED.8 The trial court held that BLTB, as a common carrier, was bound to observe extraordinary diligence in the vigilance over the safety of its passengers. It must carry the passengers safely as far as human care and foresight provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. Thus, where a passenger dies or is injured, the carrier is presumed to have been at fault or has acted negligently. BLTB's inability to carry respondents to their destination gave rise to an action for breach of contract of carriage while its failure to rebut the presumption of negligence made it liable to respondents for the breach.9 Regarding CDCP, the trial court found that the tractor-truck it owned bumped the BLTB bus from behind. Evidence showed that CDCP's driver was reckless and driving very fast at the time of the incident. The gross negligence of its driver raised the presumption that CDCP was negligent either in the selection or in the supervision of its employees which it failed to rebut thus making it and its driver liable to respondents. 10 Unsatisfied with the award of damages and attorney's fees by the trial court, respondents moved that the decision be reconsidered but was denied. Respondents elevated the case 11 to the Court of Appeals which affirmed the decision of the trial court but modified the amount of damages, the dispositive portion of which provides: WHEREFORE, the assailed decision dated October 7, 1993 of the Regional Trial Court, Branch 13, Manila is hereby AFFIRMED with the following MODIFICATION: 1. The interest of six (6) percent per annum on the actual damages of P79,354.43 should commence to run from the time the judicial demand was made or from the filing of the complaint on February 4, 1980; 2. Thirty (30) percent of the total amount recovered is hereby awarded as attorney's fees; 3. Defendants-appellants Construction and Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr. are ordered to pay plaintiff-appellants Rebecca Estrella and Rachel Fletcher the amount of Twenty Thousand (P20,000.00) each as exemplary damages and P80,000.00 by way of moral damages to Rachel Fletcher. SO ORDERED.12 The Court of Appeals held that the actual or compensatory damage sought by respondents for the injuries they sustained in the form of hospital bills were already liquidated and were ascertained. Accordingly, the 6% interest per annum should commence to run from the time the judicial demand was made or from the filing of the complaint and not from the date of judgment. The Court of Appeals also awarded attorney's fees equivalent to 30% of the total amount recovered based on the retainer agreement of the parties. The appellate court also held that respondents are entitled to exemplary and moral damages. Finally,

it affirmed the ruling of the trial court that the claim of CDCP against Phoenix had already prescribed. Hence, this petition raising the following issues: I WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING RESPONDENTS BLTB AND/OR ITS DRIVER WILFREDO DATINGUINOO SOLELY LIABLE FOR THE DAMAGES SUSTAINED BY HEREIN RESPONDENTS FLETCHER AND ESTRELLA. II WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AWARDING EXCESSIVE OR UNFOUNDED DAMAGES, ATTORNEY'S FEES AND LEGAL INTEREST TO RESPONDENTS FLETCHER AND ESTRELLA. III WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING RESPONDENT PHOENIX LIABLE UNDER ITS INSURANCE POLICY ON THE GROUND OF PRESCRIPTION. The issues for resolution are as follows: (1) whether BLTB and its driver Wilfredo Datinguinoo are solely liable for the damages sustained by respondents; (2) whether the damages, attorney's fees and legal interest awarded by the CA are excessive and unfounded; (3) whether CDCP can recover under its insurance policy from Phoenix. Petitioner contends that since it was made solidarily liable with BLTB for actual damages and attorney's fees in paragraph 1 of the trial court's decision, then it should no longer be held liable to pay the amounts stated in paragraph 2 of the same decision. Petitioner claims that the liability for actual damages and attorney's fees is based on culpa contractual, thus, only BLTB should be held liable. As regards paragraph 2 of the trial court's decision, petitioner claims that it is ambiguous and arbitrary because the dispositive portion did not state the basis and nature of such award. Respondents, on the other hand, argue that petitioner is also at fault, hence, it was properly joined as a party. There may be an action arising out of one incident where questions of fact are common to all. Thus, the cause of action based on culpa aquiliana in the civil suit they filed against it was valid. The petition lacks merit. The case filed by respondents against petitioner is an action for culpa aquiliana or quasi-delict under Article 2176 of the Civil Code.13 In this regard, Article 2180 provides that the obligation imposed by Article 2176 is demandable for the acts or omissions of those persons for whom one is responsible. Consequently, an action based on quasi-delict may be instituted against the employer for an employee's act or omission. The liability for the negligent conduct of the subordinate is direct and primary, but is subject to the defense of due diligence in the selection and supervision of the employee. 14 In the instant case, the trial court found that petitioner failed to prove that it exercised the diligence of a good father of a family in the selection and supervision of Payunan, Jr. The trial court and the Court of Appeals found petitioner solidarily liable with BLTB for the actual damages suffered by respondents because of the injuries they sustained. It was established that Payunan, Jr. was driving recklessly because of the skid marks as shown in the sketch of the police investigator. It is well-settled in Fabre, Jr. v. Court of Appeals,15 that the owner of the other vehicle which collided with a common carrier is solidarily liable to the injured passenger of the same. We held, thus: The same rule of liability was applied in situations where the negligence of the driver of the bus on which plaintiff was riding concurred with the negligence of a third party who was the driver of another vehicle, thus causing an accident. In Anuran v. Buo, Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly and severally held liable to the injured passenger or the latter's heirs. The basis of this allocation of liability was explained inViluan v. Court of Appeals, thus:

Nor should it make any difference that the liability of petitioner [bus owner] springs from contract while that of respondents [owner and driver of other vehicle] arises from quasi-delict.As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the negligence of the driver of the bus on which he was riding and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. x x x xxxx As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake out their claim against the carrier and the driver exclusively on one theory, much less on that of breach of contract alone.After all, it was permitted for them to allege alternative causes of action and join as many parties as may be liable on such causes of action so long as private respondent and her co-plaintiffs do not recover twice for the same injury. What is clear from the cases is the intent of the plaintiff there to recover from both the carrier and the driver, thus justifying the holding that the carrier and the driver were jointly and severally liable because their separate and distinct acts concurred to produce the same injury.16(Emphasis supplied) In a "joint" obligation, each obligor answers only for a part of the whole liability; in a "solidary" or "joint and several" obligation, the relationship between the active and the passive subjects is so close that each of them must comply with or demand the fulfillment of the whole obligation. In Lafarge Cement v. Continental Cement Corporation,17 we reiterated that joint tort feasors are jointly and severally liable for the tort which they commit. Citing Worcester v. Ocampo,18 we held that: x x x The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. x x x It may be stated as a general rule that joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. x x x Joint tort feasors are jointly and severally liable for the tort which they commit. The persons injured may sue all of them or any number less than all. Each is liable for the whole damages caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared to that of the others. x x x Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They cannot insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the whole amount. x x x A payment in full for the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but satisfaction. The release of one of the joint tort feasors by agreement generally operates to discharge all. x x x Of course the court during trial may find that some of the alleged tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. 19 Petitioner's claim that paragraph 2 of the dispositive portion of the trial court's decision is ambiguous and arbitrary and also entitles respondents to recover twice is without basis. In the body of the trial court's decision, it was clearly stated that petitioner and its driver Payunan, Jr., are jointly and solidarily liable for moral damages in the amount of P50,000.00 to respondent Fletcher and P25,000.00 to respondent Estrella. 20 Moreover, there could be no double recovery because the award in paragraph 2 is for moral damages while the award in paragraph 1 is for actual damages and attorney's fees. Petitioner next claims that the damages, attorney's fees, and legal interest awarded by the Court of Appeals are excessive. Moral damages may be recovered in quasi-delicts causing physical injuries.21 The award of moral damages in favor of Fletcher and Estrella in the amount of P80,000.00 must be reduced since prevailing jurisprudence fixed the same at P50,000.00. 22 While moral damages are not intended to enrich the plaintiff at the expense of the defendant, the award should nonetheless be commensurate to the suffering inflicted.23

The Court of Appeals correctly awarded respondents exemplary damages in the amount of P20,000.00 each. Exemplary damages may be awarded in addition to moral and compensatory damages. 24 Article 2231 of the Civil Code also states that in quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence. 25 In this case, petitioner's driver was driving recklessly at the time its truck rammed the BLTB bus. Petitioner, who has direct and primary liability for the negligent conduct of its subordinates, was also found negligent in the selection and supervision of its employees. In Del Rosario v. Court of Appeals,26 we held, thus: ART. 2229 of the Civil Code also provides that such damages may be imposed, by way of example or correction for the public good. While exemplary damages cannot be recovered as a matter of right, they need not be proved, although plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. Exemplary Damages are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions. Regarding attorney's fees, we held in Traders Royal Bank Employees Union-Independent v. National Labor Relations Commission,27 that: There are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary. In its ordinary concept, an attorney's fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with the client. In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the court to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.28 (Emphasis supplied) In the instant case, the Court of Appeals correctly awarded attorney's fees and other expenses of litigation as they may be recovered as actual or compensatory damages when exemplary damages are awarded; when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's valid, just and demandable claim; and in any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.29 Regarding the imposition of legal interest at the rate of 6% from the time of the filing of the complaint, we held inEastern Shipping Lines, Inc. v. Court of Appeals,30 that when an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be held liable for payment of interest in the concept of actual and compensatory damages,31 subject to the following rules, to wit 1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or forbearance of money, the interest due should be that which may have been stipulated in writing. Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e., from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code. 2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or until the demand can be established with reasonable certainty. Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the time the demand is made,the interest shall begin to run only from the date the judgment of the court is made (at which time the quantification of damages may be deemed to have been reasonably ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount finally adjudged. 3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit.32 (Emphasis supplied) Accordingly, the legal interest of 6% shall begin to run on February 9, 1993 when the trial court rendered judgment and not on February 4, 1980 when the complaint was filed. This is because at the time of the filing of the complaint, the amount of the

damages to which plaintiffs may be entitled remains unliquidated and unknown, until it is definitely ascertained, assessed and determined by the court and only upon presentation of proof thereon. 33From the time the judgment becomes final and executory, the interest rate shall be 12% until its satisfaction. Anent the last issue of whether petitioner can recover under its insurance policy from Phoenix, we affirm the findings of both the trial court and the Court of Appeals, thus: As regards the liability of Phoenix, the court a quo correctly ruled that defendant-appellant CDCP's claim against Phoenix already prescribed pursuant to Section 384 of P.D. 612, as amended, which provides: Any person having any claim upon the policy issued pursuant to this chapter shall, without any unnecessary delay, present to the insurance company concerned a written notice of claim setting forth the nature, extent and duration of the injuries sustained as certified by a duly licensed physician. Notice of claim must be filed within six months from date of the accident, otherwise, the claim shall be deemed waived. Action or suit for recovery of damage due to loss or injury must be brought in proper cases, with the Commissioner or Courts within one year from denial of the claim, otherwise, the claimant's right of action shall prescribe. (As amended by PD 1814, BP 874.)34 The law is clear and leaves no room for interpretation. A written notice of claim must be filed within six months from the date of the accident. Since petitioner never made any claim within six months from the date of the accident, its claim has already prescribed. WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 46896 dated March 29, 2001, which modified the Decision of the Regional Trial Court of Manila, Branch 13, in Civil Case No. R-82-2137, is AFFIRMED with the MODIFICATIONS that petitioner is held jointly and severally liable to pay (1) actual damages in the amount of P79,354.43; (2) moral damages in the amount of P50,000.00 each for Rachel Fletcher and Rebecca Estrella; (3) exemplary damages in the amount of P20,000.00 each for Rebecca Estrella and Rachel Fletcher; and (4) thirty percent (30%) of the total amount recovered as attorney's fees. The total amount adjudged shall earn interest at the rate of 6% per annum from the date of judgment of the trial court until finality of this judgment. From the time this Decision becomes final and executory and the judgment amount remains unsatisfied, the same shall earn interest at the rate of 12% per annum until its satisfaction. SO ORDERED. Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur.

Footnotes
1

Penned by Associate Justice Remedios A. Salazar-Fernando and concurred in by Associate Justices Romeo A. Brawner and Rebecca De Guia-Salvador; rollo, pp. 30-47.
2

CA rollo, pp. 89-116. Penned by Judge Cecilio F. Balagot. Records, p. 538. Id. at 540. Id. at 3-10. Id. at 30-34. Id. at 70-75. CA rollo, pp. 115-116. Id. at 106-107.

10

Id. at 108-109. Id. at 60-88. Rollo, pp. 46-47.

11

12

13

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
14

Equitable Leasing Corporation v. Suyom, 437 Phil. 244, 253 (2002). Fabre, Jr. v. Court of Appeals, 328 Phil. 774 (1996). Id. at 791-793.

15

16

17

Lafarge Cement Philippines, Inc. v. Continental Cement Corporation, G.R. No. 155173, November 23, 2004, 443 SCRA 522.
18

22 Phil. 42 (1912). Supra note 17 at 544-545. CA rollo, pp. 114-115. CIVIL CODE, Art. 2219. Macalinao v. Ong, G.R. No. 146635, December 14, 2005, 477 SCRA 740, 759. Valenzuela v. Court of Appeals, 323 Phil. 374, 399 (1996).

19

20

21

22

23

24

ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. In case liquidated damages have been agreed upon, although no proof of loss is necessary in order that such liquidated damages may be recovered, nevertheless, before the court may consider the question of granting exemplary in addition to the liquidated damages, the plaintiff must show that he would be entitled to moral, temperate or compensatory damages were it not for the stipulation for liquidated damages.
25

Metro Manila Transit Corporation v. Court of Appeals, 359 Phil. 18, 38 (1998). G.R. No. 118325, January 29, 1997, 267 SCRA 158, 173. 336 Phil. 705 (1997). Id. at 712. Vital-Gozon v. Court of Appeals, 354 Phil. 128, 153 (1998). G.R. No. 97412, July 12, 1994, 234 SCRA 78, 95. Victory Liner, Inc. v. Gammad, G.R. No. 159636, November 25, 2004, 444 SCRA 355, 371-372. Supra note 30 at 95-96. Philippine Airlines, Inc. v. Court of Appeals, 341 Phil. 624, 634 (1997); Lim v. Court of Appeals, 424 Phil.

26

27

28

29

30

31

32

33

457, 467 (2002).

34

Rollo, pp. 45-46.

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