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G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, petitioner, vs.

INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner.

CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age; WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4 While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause. The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword. This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ... From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the abovecited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commissionmay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual

standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. G.R. No. 74621 February 7, 1990 BROKENSHIRE MEMORIAL HOSPITAL, INC., petitioner, vs. THE HONORABLE MINISTER OF LABOR & EMPLOYMENT AND BROKENSHIRE MEMORIAL HOSPITAL EMPLOYEES AND WORKER'S UNION-FFW Represented by EDUARDO A. AFUAN, respondents. Renato B. Pagatpatan for petitioner.

PARAS, J.: This petition for review by certiorari seeks the annulment or modification of the Order of public respondent Minister of Labor dated December 9, 1985 in a case for non-compliance with Wage Order

Nos. 5 and 6 docketed as ROXI-LSED Case No. 14-85 which 1) denied petitioner's Motion for Reconsideration dated February 3, 1986 and 2) affirmed the Order of Regional Director Eugenio I. Sagmit, Jr., Regional Office No. XI Davao City, dated April 12, 1985, the dispositive portion of which reads as follows: WHEREFORE, premises considered, respondent Brokenshire Memorial Hospital, Incorporated is hereby ordered to pay the above-named workers, through this Office, within fifteen (15) days from receipt hereof, the total sum of TWO HUNDRED EIGHTYFOUR THOUSAND SIX HUNDRED TWENTY FIVE (P284,625.00) PESOS representing their living allowance under Wage Order No. 5 covering the period from October 16, 1984 to February 28, 1985 and under Wage Order No. 6 effective November 1, 1984 to February 28, 1985. Respondent is further ordered to pay the employees who are likewise entitled to the claims here presented, but whose names were inadvertently omitted in the list and computation. (Rollo, p. 7) Petitioner contends that the respondent Minister of Labor and Employment acted without, or in excess of his jurisdiction or with grave abuse of discretion in failing to hold: A) That the Regional Director committed grave abuse of discretion in asserting exclusive jurisdiction and in not certifying this case to the Arbitration Branch of the National Labor Relations Commission for a full-blown hearing on the merits; B) That the Regional Director erred in not ruling on the counterclaim raised by the respondent (in the labor case, and now petitioner in this case); C) That the Regional Director erred -in skirting the constitutional and legal issues raised. (Rollo, p. 4) This case originated from a complaint filed by private respondents against petitioner on September 21, 1984 with the Regional Office of the MOLE, Region XI, Davao City for non-compliance with the provisions of Wage Order No. 5. After due healing the Regional Director rendered a decision dated November 16, 1984 in favor of private respondents. Judgment having become final and executory, the Regional Director issued a Writ of Execution whereby some movable properties of the hospital (petitioner herein) were levied upon and its operating expenses kept with the bank were garnished. The levy and garnishment were lifted when petitioner hospital paid the claim of the private respondents (281 hospital employees) directly, in the total amount of P163,047.50 covering the period from June 16 to October 15, 1984. After making said payment, petitioner hospital failed to continue to comply with Wage Order No. 5 and likewise, failed to comply with the new Wage Order No. 6 which took effect on November 1, 1984, prompting private respondents to file against petitioner another complaint docketed as ROXI-LSED-1485, which is now the case at bar. In its answer, petitioner raised the following affirmative defenses: 1) That the Regional Office of the Ministry of Labor did not acquire jurisdiction over it for want of allegation that it has the capacity to be sued and 2) That Wage Order Nos. 5 and 6 are non-constitutional and therefore void. Significantly petitioner never averred any counterclaim in its Answer. After the complainants had filed their reply, petitioner filed a Motion for the Certification of the case to the National Labor Relations Commission for a full-blown hearing on the matter, including the counterclaim interposed that the complainants had unpaid obligations with the Hospital which might be offset with the latter's alleged obligation to the former. Issues having been joined, the Regional Director rendered a decision on April 12, 1985 in favor of the complainants (private respondents herein) declaring that petitioner (respondent therein) is estopped

from questioning the acquisition of jurisdiction because its appearance in the hearing is in itself submission to jurisdiction and that this case is merely a continuance of a previous case where the hospital already willingly paid its obligations to the workers on orders of the Regional Office. On the matter of the constitutionality of the Wage Order Nos. 5 and 6, the Regional Director declared that only the court can declare a law or order unconstitutional and until so declared by the court, the Office of the Regional Director is duly bound to enforce the law or order. Aggrieved, petitioner appealed to the Office of the Minister of Labor, which dismissed the appeal for lack of merit. A motion for reconsideration was likewise denied by said Office, giving rise to the instant petition reiterating the issues earlier mentioned. The crucial issue We are tasked to resolve is whether or not the Regional Director has jurisdiction over money claims of workers concurrent with the Labor Arbiter. It is worthy of note that the instant case was deliberated upon by this Court at the same time that Briad Agro Development Corporation v. de la Cerna, G.R. No. 82805 and L.M. Camus Engineering Corporation v. Hon. Secretary of Labor, et al. G.R. No. 83225, promulgated on June 29,1989 and Maternity Children's Hospital vs. Hon. Secretary of Labor, et al., G.R. No. 78909, promulgated 30 June 1989, where deliberated upon; for all three (3) cases raised the same issue of jurisdiction of the Regional Director of the Department of Labor to pass upon money claims of employees. Hence, we will be referring to these cases, most especially the case of Briad Agro which, as will be seen later, was reconsidered by the court. Contrary to the claim of petitioners that the original and exclusive jurisdiction over said money claims is properly lodged in the Labor Arbiter (relying on the case of Zambales Base Metals Inc. v. Minister of Labor, 146 SCRA 50) and the Regional Director has no jurisdiction over workers' money claims, the Court in the three (3) cases above-mentioned ruled that in view of the promulgation of Executive Order No. 111, the ruling in the earlier case of Zambales Base Metals is already abandoned. In accordance with the rulings in Briad Agro, L.M. Camus, and Maternity Children's Hospital, the Regional Director exercises concurrent jurisdiction with the Labor Arbiter over money claims. Thus, . . . . Executive Order No. 111 is in the character of a curative law, that is to say, it was intended to remedy a defect that, in the opinion of the legislative (the incumbent Chief Executive in this case, in the exercise of her lawmaking power under the Freedom Constitution) had attached to the provision subject of the amendment. This is clear from the proviso: "The provisions of Article 217 to the contrary notwithstanding . . ." Plainly, the amendment was meant to make both the Secretary of Labor (or the various Regional Directors) and the Labor Arbiter share jurisdiction. (Briad Agro Dev. Corp. v. Sec. of Labor, supra). Under the present rules, a Regional Director exercises both visitorial and enforcement power over labor standards cases, and is therefore empowered to adj udicate money claims, provided there stillexists an employer-employee relationship, and the findings of the regional office is not contested by the employer concerned. (Maternity Children's Hospital v. Sec. of Labor, supra). However, it is very significant to note, at this point, that the decision in the consolidated cases of Briad Agro Development Corp. and L.M. Camus Engineering Corp. was reconsidered and set aside by this Court in a Resolution promulgated on November 9,1989. In view of the enactment of Republic Act No. 6715, approved on March 2, 1989, the Court found that reconsideration was proper. RA 6715 amended Art. 129 and Art. 217 of the Labor Code, to read as follows: ART. 129. Recovery of wages, simple money claims and other benefits.Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or

household service or househelper under this code, arising from employer-employee relations, Provided, That such complaint does not include a claim for reinstatement; Provided, further, That the aggregate money claims of each employee or househelper do not exceed five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same . . . Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from 11 receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. ART. 217. Jurisdiction of Labor Arbiters and the Commission. Except as otherwise provided under this code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of steno graphic notes, the following cases involving all workers, whether agricultural or non-agricultural: (1) Unfair labor practice cases; (2) Termination disputes; (3) If accompanied with a claim of reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; (4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relation; (5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and (6) Except claims for employees compensation, social security, medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount not exceeding five thousand pesos (P5,000.00), whether or not accompanied with a claim for reinstatement. It will be observed that what in fact conferred upon Regional Directors and other hearing officers of the Department of Labor (aside from the Labor Arbiters) adjudicative powers, i.e., the power to try and decide, or hear and determine any claim brought before them for recovery of wages, simple money claims, and other benefits, is Republic Act 6715, provided that the following requisites concur, to wit: 1) The claim is presented by an employee or person employed in domestic or household service, or househelper under the code; 2) The claimant, no longer being employed, does not seek reinstatement; and 3) The aggregate money claim of the employee or househelper does not exceed five thousand pesos (P5,000.00). In the absence of any of the three (3) requisites, the Labor Arbiters have exclusive original jurisdiction over all claims arising from employer-employee relations, other than claims for employee's compensation, social security, medicare and maternity benefits.

We hereby adopt the view taken by Mr. Justice Andres Narvasa in his Separate Opinion in the case of Briad Agro Dev. Corp., as reconsidered, a portion of which reads: In the resolution, therefore, of any question of jurisdiction over a money claim arising from employer-employee relations, the first inquiry should be into whether the employment relation does indeed still exist between the claimant and the respondent. If the relation no longer exists, and the claimant does not seek reinstatement, the case is cognizable by the Labor Arbiter, not by the Regional Director. On the other hand, if the employment relation still exists, or reinstatement is sought, the next inquiry should be into the amount involved. If the amount involved does not exceed P5,000.00, the Regional Director undeniably has jurisdiction. But even if the amount of the claim exceeds P5,000.00, the claim is not on that account necessary removed from the Regional Director's competence. In respect thereof, he may still exercise the visitorial and enforcement powers vested in him by Article 128 of the Labor Code, as amended, supra; that is to say, he may still direct his labor regulations officers or industrial safety engineers to inspect the employer's premises and examine his records; and if the officers should find that there have been violations of labor standards provisions, the Regional Director may, after due notice and hearing, order compliance by the employer therewith and issue a writ of execution to the appropriate authority for the enforcement thereof. However, this power may not, to repeat, be exercised by him where the employer contests the labor regulation officers' findings and raises issues which cannot be resolved without considering evidentiary matters not verifiable in the normal course of inspection. In such an event, the case will have to be referred to the corresponding Labor Arbiter for adjudication, since it falls within the latter's exclusive original jurisdiction. Anent the other issue involved in the instant case, petitioner's contention that the constitutionality of Wage Order Nos. 5 and 6 should be passed upon by the National Labor Relations Commission, lacks merit. The Supreme Court is vested by the Constitution with the power to ultimately declare a law unconstitutional. Without such declaration, the assailed legislation remains operative and can be the source of rights and duties especially so in the case at bar when petitioner complied with Wage Order No. 5 by paying the claimants the total amount of P163,047.50, representing the latter's minimum wage increases up to October 16, 1984, instead of questioning immediately at that stage before paying the amount due, the validity of the order on grounds of constitutionality. The Regional Director is plainly ,without the authority to declare an order or law unconstitutional and his duty is merely to enforce the law which stands valid, unless otherwise declared by this Tribunal to be unconstitutional. On our part, We hereby declare the assailed Wage Orders as constitutional, there being no provision of the 1973 Constitution (or even of both the Freedom Constitution and the 1987 Constitution) violated by said Wage Orders, which Orders are without doubt for the benefit of labor. Based on the foregoing considerations, it is our shared view that the findings of the labor regulations officers may not be deemed uncontested as to bring the case at bar within the competence of the Regional Director, as duly authorized representative of the Secretary of Labor, pursuant to Article 128 of the Labor Code, as amended. Considering further that the aggregate claims involve an amount in excess of P5,000.00, We find it more appropriate that the issue of petitioner hospital's liability therefor, including the proposal of petitioner that the obligation of private respondents to the former in the aggregate amount of P507,237.57 be used to offset its obligations to them, be ventilated and resolved, not in a summary proceeding before the Regional Director under Article 128 of the Labor Code, as amended, but in accordance With the more formal and extensive proceeding before the Labor Arbiter. Nevertheless, it should be emphasized that the amount of the employer's liability is not quite a factor in determining the jurisdiction of the Regional Director. However, the power to order compliance with labor standards provisions may not be exercised where the employer contends or questions the findings of the labor regulation officers and raises issues which cannot be determined without taking into account evidentiary matters not verifiable in the normal course of inspection, as in the case at bar.

Viewed in the light of RA 6715 and read in consonance with the case of Briad Agro Development Corp., as reconsidered, We hold that the instant case falls under the exclusive original jurisdiction of the Labor Arbiter RA 6715 is in the nature of a curative statute. Curative statutes have long been considered valid in our jurisdiction, as long as they do not affect vested rights. In this case, We do not see any vested right that will be impaired by the application of RA 6715. Inasmuch as petitioner had already paid the claims of private respondents in the amount of P163,047.50 pursuant to the decision rendered in the first complaint, the only claim that should be deliberated upon by the Labor Arbiter should be limited to the second amount given by the Regional Director in the second complaint together with the proposal to offset the obligations. WHEREFORE, the assailed decision of the Regional Director dated April 12, 1985, is SET ASIDE. The case is REFERRED, if the respondents are so minded, to the Labor Arbiter for proper proceedings. G.R. No. 182065 October 27, 2009

EVELYN ONGSUCO and ANTONIA SALAYA, Petitioners, vs. HON. MARIANO M. MALONES, both in his private and official capacity as Mayor of the Municipality of Maasin, Iloilo, Respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1 dated 28 November 2006, rendered by the Court of Appeals in CA-G.R. SP No. 86182, which affirmed the Decision2 dated 15 July 2003, of the Regional Trial Court (RTC), Branch 39, of Iloilo City, in Civil Case No. 25843, dismissing the special civil action for Mandamus/Prohibition with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, filed by petitioners Evelyn Ongsuco and Antonia Salaya against respondent Mayor Mariano Malones of the Municipality of Maasin, Iloilo. Petitioners are stall holders at the Maasin Public Market, which had just been newly renovated. In a letter3 dated 6 August 1998, the Office of the Municipal Mayor informed petitioners of a meeting scheduled on 11 August 1998 concerning the municipal public market. Revenue measures were discussed during the said meeting, including the increase in the rentals for the market stalls and the imposition of "goodwill fees" in the amount of P20,000.00,4payable every month. On 17 August 1998, the Sangguniang Bayan of Maasin approved Municipal Ordinance No. 98-01, entitled "The Municipal Revised Revenue Code." The Code contained a provision for increased rentals for the stalls and the imposition of goodwill fees in the amount of P20,000.00 and P15,000.00 for stalls located on the first and second floors of the municipal public market, respectively. The same Code authorized respondent to enter into lease contracts over the said market stalls,5 and incorporated a standard contract of lease for the stall holders at the municipal public market. Only a month later, on 18 September 1998, the Sangguniang Bayan of Maasin approved Resolution No. 68, series of 1998,6 moving to have the meeting dated 11 August 1998 declared inoperative as a public hearing, because majority of the persons affected by the imposition of the goodwill fee failed to agree to the said measure. However, Resolution No. 68, series of 1998, of the Sangguniang Bayan of Maasin was vetoed by respondent on 30 September 1998.7 After Municipal Ordinance No. 98-01 was approved on 17 August 1998, another purported public hearing was held on 22 January 1999.8 On 9 June 1999, respondent wrote a letter to petitioners informing them that they were occupying stalls in the newly renovated municipal public market without any lease contract, as a consequence of which, the stalls were considered vacant and open for qualified and interested applicants.9

This prompted petitioners, together with other similarly situated stall holders at the municipal public market,10 to file before the RTC on 25 June 1999 a Petition for Prohibition/Mandamus, with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction,11 against respondent. The Petition was docketed as Civil Case No. 25843. Petitioners alleged that they were bona fide occupants of the stalls at the municipal public market, who had been religiously paying the monthly rentals for the stalls they occupied. Petitioners argued that public hearing was mandatory in the imposition of goodwill fees. Section 186 of the Local Government Code of 1991 provides that an ordinance levying taxes, fees, or charges shall not be enacted without any prior hearing conducted for the purpose. Municipal Ordinance No. 98-01, imposing goodwill fees, is invalid on the ground that the conferences held on 11 August 1998 and 22 January 1999 could not be considered public hearings. According to Article 277(b)(3) of the Implementing Rules and Regulations of the Local Government Code: (3) The notice or notices shall specify the date or dates and venue of the public hearing or hearings. The initial public hearing shall be held not earlier than ten (10) days from the sending out of the notice or notices, or the last day of publication, or date of posting thereof, whichever is later. (Emphasis ours.) The letter from the Office of the Municipal Mayor was sent to stall holders on 6 August 1998, informing the latter of the meeting to be held, as was in fact held, on 11 August 1998, only five days after notice.12 Hence, petitioners prayed that respondent be enjoined from imposing the goodwill fees pending the determination of the reasonableness thereof, and from barring petitioners from occupying the stalls at the municipal public market and continuing with the operation of their businesses. Respondent, in answer, maintained that Municipal Ordinance No. 98-01 is valid. He reasoned that Municipal Ordinance No. 98-01 imposed goodwill fees to raise income to pay for the loan obtained by the Municipality of Maasin for the renovation of its public market. Said ordinance is not per se a tax or revenue measure, but involves the operation and management of an economic enterprise of the Municipality of Maasin as a local government unit; thus, there was no mandatory requirement to hold a public hearing for the enactment thereof. And, even granting that a public hearing was required, respondent insisted that public hearings take place on 11 August 1998 and 22 January 1999. Respondent further averred that petitioners were illegally occupying the market stalls, and the only way petitioners could legitimize their occupancy of said market stalls would be to execute lease contracts with the Municipality of Maasin. While respondent admitted that petitioners had been paying rentals for their market stalls in the amount ofP45.00 per month prior to the renovation of the municipal public market, respondent asserted that no rentals were paid or collected from petitioners ever since the renovation began. Respondent sought from the RTC an award for moral damages in the amount of not less than P500,000.00, for the social humiliation and hurt feelings he suffered by reason of the unjustified filing by petitioners of Civil Case No. 25843; and an order for petitioners to vacate the renovated market stalls and pay reasonable rentals from the date they began to occupy said stalls until they vacate the same. 13 The RTC subsequently rendered a Decision14 on 15 July 2003 dismissing the Petition in Civil Case No. 25843. The RTC found that petitioners could not avail themselves of the remedy of mandamus or prohibition. It reasoned that mandamus would not lie in this case where petitioners failed to show a clear legal right to the use of the market stalls without paying the goodwill fees imposed by the municipal government. Prohibition likewise would not apply to the present case where respondents acts, sought to be enjoined, did not involve the exercise of judicial or quasi-judicial functions. The RTC also dismissed the Petition in Civil Case No. 25843 on the ground of non-exhaustion of administrative remedies. Petitioners failure to question the legality of Municipal Ordinance No. 98-01

before the Secretary of Justice, as provided under Section 187 of the Local Government Code,15 rendered the Petition raising the very same issue before the RTC premature. The dispositive part of the RTC Decision dated 15 July 2003 reads: WHEREFORE, in view of all the foregoing, and finding the petition without merit, the same is, as it is hereby ordered, dismissed. 16 On 12 August 2003, petitioners and their co-plaintiffs filed a Motion for Reconsideration.17 The RTC denied petitioners Motion for Reconsideration in a Resolution dated 18 June 2004.18 While Civil Case No. 25843 was pending, respondent filed before the 12th Municipal Circuit Trial Court (MCTC) of Cabatuan-Maasin, Iloilo City a case in behalf of the Municipality of Maasin against petitioner Evelyn Ongsuco, entitled Municipality of Maasin v. Ongsuco, a Complaint for Unlawful Detainer with Damages, docketed as MCTC Civil Case No. 257. On 18 June 2002, the MCTC decided in favor of the Municipality of Maasin and ordered petitioner Ongsuco to vacate the market stalls she occupied, Stall No. 1-03 and Stall No. 1-04, and to pay monthly rentals in the amount of P350.00 for each stall from October 2001 until she vacates the said market stalls.19 On appeal, Branch 36 of the RTC of Maasin, Iloilo City, promulgated a Decision, dated 29 April 2003, in a case docketed as Civil Case No. 02-27229 affirming the decision of the MCTC. A Writ of Execution was issued by the MCTC on 8 December 2003.20 Petitioners, in their appeal before the Court of Appeals, docketed as CA-G.R. SP No. 86182, challenged the dismissal of their Petition for Prohibition/Mandamus docketed as Civil Case No. 25843 by the RTC. Petitioners explained that they did appeal the enactment of Municipal Ordinance No. 98-01 before the Department of Justice, but their appeal was not acted upon because of their failure to attach a copy of said municipal ordinance. Petitioners claimed that one of their fellow stall holders, Ritchelle Mondejar, wrote a letter to the Officer-in-Charge (OIC), Municipal Treasurer of Maasin, requesting a copy of Municipal Ordinance No. 98-01, but received no reply.21 In its Decision dated 28 November 2006 in CA-G.R. SP No. 86182, the Court of Appeals again ruled in respondents favor. The Court of Appeals declared that the "goodwill fee" was a form of revenue measure, which the Municipality of Maasin was empowered to impose under Section 186 of the Local Government Code. Petitioners failed to establish any grave abuse of discretion committed by respondent in enforcing goodwill fees. The Court of Appeals additionally held that even if respondent acted in grave abuse of discretion, petitioners resort to a petition for prohibition was improper, since respondents acts in question herein did not involve the exercise of judicial, quasi-judicial, or ministerial functions, as required under Section 2, Rule 65 of the Rules of Court. Also, the filing by petitioners of the Petition for Prohibition/Mandamus before the RTC was premature, as they failed to exhaust administrative remedies prior thereto. The appellate court did not give any weight to petitioners assertion that they filed an appeal challenging the legality of Municipal Ordinance No. 98-01 before the Secretary of Justice, as no proof was presented to support the same. In the end, the Court of Appeals decreed: WHEREFORE, in view of the foregoing, this Court finds the instant appeal bereft of merit. The assailed decision dated July 15, 2003 as well as the subsequent resolution dated 18 June 2004 are hereby AFFIRMED and the instant appeal is hereby DISMISSED. 22 Petitioners filed a Motion for Reconsideration23 of the foregoing Decision, but it was denied by the Court of Appeals in a Resolution24 dated 8 February 2008. Hence, the present Petition, where petitioners raise the following issues: I

WHETHER OR NOT THE PETITIONERS HAVE EXHAUSTED ADMINISTRATIVE REMEDIES BEFORE FILING THE INSTANT CASE IN COURT; II WHETHER OR NOT EXHAUSTION OF ADMINISTRATIVE REMEDIES IS APPLICABLE IN THIS CASE; AND III WHETHER OR NOT THE APPELLEE MARIANO MALONES WHO WAS THEN THE MUNICIPAL MAYOR OF MAASIN, ILOILO HAS COMMITTED GRAVE ABUSE OF DISCRETION.25 After a close scrutiny of the circumstances that gave rise to this case, the Court determines that there is no need for petitioners to exhaust administrative remedies before resorting to the courts. The findings of both the RTC and the Court of Appeals that petitioners Petition for Prohibition/Mandamus in Civil Case No. 25843 was premature is anchored on Section 187 of the Local Government Code, which reads: Section 187. Procedure for Approval and Effectivity of Tax Ordinances and Revenue Measures; Mandatory Public Hearings.The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction. (Emphasis ours.) It is true that the general rule is that before a party is allowed to seek the intervention of the court, he or she should have availed himself or herself of all the means of administrative processes afforded him or her. Hence, if resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of the intervention of the court is fatal to ones cause of action. The doctrine of exhaustion of administrative remedies is based on practical and legal reasons. The availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. However, there are several exceptions to this rule. 26 The rule on the exhaustion of administrative remedies is intended to preclude a court from arrogating unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. Thus, a case where the issue raised is a purely legal question, well within the competence; and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception.27Resolving questions of law, which involve the interpretation and application of laws, constitutes essentially an exercise of judicial power that is exclusively allocated to the Supreme Court and such lower courts the Legislature may establish. 28 In this case, the parties are not disputing any factual matter on which they still need to present evidence. The sole issue petitioners raised before the RTC in Civil Case No. 25843 was whether Municipal Ordinance No. 98-01 was valid and enforceable despite the absence, prior to its enactment, of a public hearing held in accordance with Article 276 of the Implementing Rules and Regulations of the

Local Government Code. This is undoubtedly a pure question of law, within the competence and jurisdiction of the RTC to resolve. Paragraph 2(a) of Section 5, Article VIII of the Constitution, expressly establishes the appellate jurisdiction of this Court, and impliedly recognizes the original jurisdiction of lower courts over cases involving the constitutionality or validity of an ordinance: Section 5. The Supreme Court shall have the following powers: xxxx (2) Review, revise, reverse, modify or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphases ours.) In J.M. Tuason and Co., Inc. v. Court of Appeals,29 Ynot v. Intermediate Appellate Court,30 and Commissioner of Internal Revenue v. Santos,31 the Court has affirmed the jurisdiction of the RTC to resolve questions of constitutionality and validity of laws (deemed to include local ordinances) in the first instance, without deciding questions which pertain to legislative policy. Although not raised in the Petition at bar, the Court is compelled to discuss another procedural issue, specifically, the declaration by the RTC, and affirmed by the Court of Appeals, that petitioners availed themselves of the wrong remedy in filing a Petition for Prohibition/Mandamus before the RTC. Sections 2 and 3, Rule 65 of the Rules of the Rules of Court lay down under what circumstances petitions for prohibition and mandamus may be filed, to wit: SEC. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are 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 other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. SEC. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. (Emphases ours.) In a petition for prohibition against any tribunal, corporation, board, or person -- whether exercising judicial, quasi-judicial, or ministerial functions -- who has acted without or in excess of jurisdiction or with grave abuse of discretion, the petitioner prays that judgment be rendered, commanding the respondent to desist from further proceeding in the action or matter specified in the petition.32 On the other hand, the remedy of mandamus lies to compel performance of a ministerial duty.33 The petitioner for such a writ should have a well-defined, clear and certain legal right to the performance of the act, and it must be the clear and imperative duty of respondent to do the act required to be done.34

In this case, petitioners primary intention is to prevent respondent from implementing Municipal Ordinance No. 98-01, i.e., by collecting the goodwill fees from petitioners and barring them from occupying the stalls at the municipal public market. Obviously, the writ petitioners seek is more in the nature of prohibition (commanding desistance), rather than mandamus (compelling performance). For a writ of prohibition, the requisites are: (1) the impugned act must be that of a "tribunal, corporation, board, officer, or person, whether exercising judicial, quasi-judicial or ministerial functions"; and (2) there is no plain, speedy, and adequate remedy in the ordinary course of law."35 The exercise of judicial function consists of the power to determine what the law is and what the legal rights of the parties are, and then to adjudicate upon the rights of the parties. The term quasi-judicial function applies to the action and discretion of public administrative officers or bodies that are required to investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature. In implementing Municipal Ordinance No. 98-01, respondent is not called upon to adjudicate the rights of contending parties or to exercise, in any manner, discretion of a judicial nature. A ministerial function is one that an officer or tribunal performs in the context of a given set of facts, in a prescribed manner and without regard for the exercise of his or its own judgment, upon the propriety or impropriety of the act done.36 The Court holds that respondent herein is performing a ministerial function. It bears to emphasize that Municipal Ordinance No. 98-01 enjoys the presumption of validity, unless declared otherwise. Respondent has the duty to carry out the provisions of the ordinance under Section 444 of the Local Government Code: Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. (a) The Municipal mayor, as the chief executive of the municipal government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the Municipal mayor shall: xxxx (2) Enforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the municipality x x x. xxxx (3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives sand priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall: xxxx (iii) Ensure that all taxes and other revenues of the municipality are collected, and that municipal funds are applied in accordance with law or ordinance to the payment of expenses and settlement of obligations of the municipality; x x x. (Emphasis ours.) Municipal Ordinance No. 98-01 imposes increased rentals and goodwill fees on stall holders at the renovated municipal public market, leaving respondent, or the municipal treasurer acting as his alter ego, no discretion on whether or not to collect the said rentals and fees from the stall holders, or whether or to collect the same in the amounts fixed by the ordinance.

The Court further notes that respondent already deemed petitioners stalls at the municipal public market vacated. Without such stalls, petitioners would be unable to conduct their businesses, thus, depriving them of their means of livelihood. It is imperative on petitioners part to have the implementation of Municipal Ordinance No. 98-01 by respondent stopped the soonest. As this Court has established in its previous discussion, there is no more need for petitioners to exhaust administrative remedies, considering that the fundamental issue between them and respondent is one of law, over which the courts have competence and jurisdiction. There is no other plain, speedy, and adequate remedy for petitioners in the ordinary course of law, except to seek from the courts the issuance of a writ of prohibition commanding respondent to desist from continuing to implement what is allegedly an invalid ordinance.1 a vv p h i 1 This brings the Court to the substantive issue in this Petition on the validity of Municipal Ordinance N. 98-01. Respondent maintains that the imposition of goodwill fees upon stall holders at the municipal public market is not a revenue measure that requires a prior public hearing. Rentals and other consideration for occupancy of the stalls at the municipal public market are not matters of taxation. Respondents argument is specious. Article 219 of the Local Government Code provides that a local government unit exercising its power to impose taxes, fees and charges should comply with the requirements set in Rule XXX, entitled "Local Government Taxation": Article 219. Power to Create Sources of Revenue.Consistent with the basic policy of local autonomy, each LGU shall exercise its power to create its own sources of revenue and to levy taxes, fees, or charges, subject to the provisions of this Rule. Such taxes, fees, or charges shall accrue exclusively to the LGU. (Emphasis ours.) Article 221(g) of the Local Government Code of 1991 defines "charges" as: Article 221. Definition of Terms. xxxx (g) Charges refer to pecuniary liability, as rents or fees against persons or property. (Emphasis ours.) Evidently, the revenues of a local government unit do not consist of taxes alone, but also other fees and charges. And rentals and goodwill fees, imposed by Municipal Ordinance No. 98-01 for the occupancy of the stalls at the municipal public market, fall under the definition of charges. For the valid enactment of ordinances imposing charges, certain legal requisites must be met. Section 186 of the Local Government Code identifies such requisites as follows: Section 186. Power to Levy Other Taxes, Fees or Charges.Local government units may exercise the power to levy taxes, fees or charges on any base or subject not otherwise specifically enumerated herein or taxed under the provisions of the National Internal Revenue Code, as amended, or other applicable laws: Provided, That the taxes, fees or charges shall not be unjust, excessive, oppressive, confiscatory or contrary to declared national policy: Provided, further, That the ordinance levying such taxes, fees or charges shall not be enacted without any prior public hearing conducted for the purpose. (Emphasis ours.) Section 277 of the Implementing Rules and Regulations of the Local Government Code establishes in detail the procedure for the enactment of such an ordinance, relevant provisions of which are reproduced below: Section 277. Publication of Tax Ordinance and Revenue Measures.x x x.

xxxx (b) The conduct of public hearings shall be governed by the following procedure: xxxx (2) In addition to the requirement for publication or posting, the sanggunian concerned shall cause the sending of written notices of the proposed ordinance, enclosing a copy thereof, to the interested or affected parties operating or doing business within the territorial jurisdiction of the LGU concerned. (3) The notice or notices shall specify the date or dates and venue of the public hearing or hearings. The initial public hearing shall be held not earlier than ten (10) days from the sending out of the notice or notices, or the last day of publication, or date of posting thereof, whichever is later; xxxx (c) No tax ordinance or revenue measure shall be enacted or approved in the absence of a public hearing duly conducted in the manner provided under this Article. (Emphases ours.) It is categorical, therefore, that a public hearing be held prior to the enactment of an ordinance levying taxes, fees, or charges; and that such public hearing be conducted as provided under Section 277 of the Implementing Rules and Regulations of the Local Government Code. There is no dispute herein that the notices sent to petitioners and other stall holders at the municipal public market were sent out on 6 August 1998, informing them of the supposed "public hearing" to be held on 11 August 1998. Even assuming that petitioners received their notice also on 6 August 1998, the "public hearing" was already scheduled, and actually conducted, only five days later, on 11 August 1998. This contravenes Article 277(b)(3) of the Implementing Rules and Regulations of the Local Government Code which requires that the public hearing be held no less than ten days from the time the notices were sent out, posted, or published. When the Sangguniang Bayan of Maasin sought to correct this procedural defect through Resolution No. 68, series of 1998, dated 18 September 1998, respondent vetoed the said resolution. Although the Sangguniang Bayan may have had the power to override respondents veto,37 it no longer did so. The defect in the enactment of Municipal Ordinance No. 98 was not cured when another public hearing was held on 22 January 1999, after the questioned ordinance was passed by the Sangguniang Bayan and approved by respondent on 17 August 1998. Section 186 of the Local Government Code prescribes that the public hearing be held prior to the enactment by a local government unit of an ordinance levying taxes, fees, and charges. Since no public hearing had been duly conducted prior to the enactment of Municipal Ordinance No. 9801, said ordinance is void and cannot be given any effect. Consequently, a void and ineffective ordinance could not have conferred upon respondent the jurisdiction to order petitioners stalls at the municipal public market vacant. IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The assailed Decision dated 28 November 2006 of the Court of Appeals in CA-G.R. SP No. 86182 is REVERSED and SET ASIDE. Municipal Ordinance No. 98-01 is DECLARED void and ineffective, and a writ of prohibition is ISSUED commanding the Mayor of the Municipality of Maasin, Iloilo, to permanently desist from enforcing the said ordinance. Petitioners are also DECLARED as lawful occupants of the market stalls they occupied at the time they filed the Petition for Mandamus/Prohibition docketed as Civil Case No. 25843. In the event that they were deprived of possession of the said market stalls, petitioners are entitled to recover possession of these stalls.

G.R. No. L-23127 April 29, 1971 FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee, vs. PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant. Dionisio E. Moya for plaintiff-appellee. Ramon B. de los Reyes for defendant-appellant.

FERNANDO, J.: A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit against defendant, now appellant Philippine National Bank, permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense raised by appellant that if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In arriving at such a conclusion, the lower court manifested a tenacious adherence to the inflexible view that an unconstitutional act is not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to the force of the principle adopted by this Court that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the lower court resulted in an erroneous decision. We find for appellant Philippine National Bank, and we reverse. There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against defendant Provincial Sheriff, which was made permanent in the decision now on appeal. Defendant Bank in its answer prayed for the dismissal of the suit as even on plaintiff's own theory the defense of prescription would not be available if the period from March 10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative act 2 extending the period of moratorium was declared invalid, were to be deducted from the computation of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower court did not find such contention persuasive and decided the suit in favor of plaintiff. Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given to a statute subsequently declared invalid. 1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. 3 It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication. In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official." 4 This language has been quoted with approval in a resolution in Araneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. 7 2. Such an approach all the more commends itself whenever police power legislation intended to promote public welfare but adversely affecting property rights is involved. While subject to be assailed on due process, equal protection and non-impairment grounds, all that is required to avoid the corrosion of invalidity is that the rational basis or reasonableness test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in sheer oppression. It may be of course that if challenged, an adverse judgment could be the result, as its running counter to the Constitution could still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation, never static but subject to change, a measure valid when enacted may subsequently, due to altered circumstances, be stricken down. That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the then President Osmea, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v. Esteban 8where such enactment was considered in 1953 "unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect." 9 At the time of the issuance of the above Executive Order in 1945 and of the passage of such Act in 1948, there was a factual justification for the moratorium. The Philippines was confronted with an emergency of impressive magnitude at the time of her liberation from the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate. Measures, radical measures, were then devised to tide her over until some semblance of normalcy could be restored and an improvement in her economy noted. No wonder then that the suspension of enforcement of payment of the obligations then existing was declared first by executive order and then by legislation. The Supreme Court was right therefore in rejecting the contention that on its face, the Moratorium Law was unconstitutional, amounting as it did to the impairment of the obligation of contracts. Considering the circumstances confronting the legitimate government upon its return to the Philippines, some such remedial device was needed and badly so. An unyielding insistence then on the rights to property on the part of the creditors was not likely to meet with judicial sympathy. Time passed however, and conditions did change.

When the legislation was before this Court in 1953, the question before it was its satisfying the rational basis test, not as of the time of its enactment but as of such date. Clearly, if then it were found unreasonable, the right to non-impairment of contractual obligations must prevail over the assertion of community power to remedy an existing evil. The Supreme Court was convinced that such indeed was the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could affect a liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States. 10 The conclusion to which the foregoing considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That before the decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. 3. Precisely though because of the judicial recognition that moratorium was a valid governmental response to the plight of the debtors who were war sufferers, this Court has made clear its view in a series of cases impressive in their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has been held from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is that as of the time of the lower court decision on January 27, 1960, at least eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments Corp. 14 has categorized it as having been "explicitly and consistently rejected by this Court." 15 The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were started by appellant Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then, when resort was had extra-judicially to the foreclosure of the mortgage obligation, there was time to spare before prescription could be availed of as a defense. WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10, 1959 dismissed. No costs.

G.R. No. 102232 March 9, 1994 VIOLETA ALDOVINO, ALI ALIBASA, FELIX BALINO, DIONISIO BALLESTEROS, JOSE N. BALEIN, JR., FREDDIE CAUTON, JANE CORROS, ROBERTO CRUZ, TRINIDAD DACUMOS, ANGELITA DIMAPILIS, ANDREA ESTONILO, EFREN FONTANILLA, MARY PAZ FRIGILLANA, MANUEL HENSON, SAMUEL HIPOL, MERLENE IBALIO, MAGDALENA JAMILLA, ALEXANDER JUSTINIANI, ROMULO MIRADOR, JULIO MIRAVITE, DANTE NAGTALON, CLARITA NAMUCO, ALICIA ORBITA, ANGELITA PUCAN, MYRNA P. SALVADOR, LIBRADA TANTAY, and ARACELI J. DE VEYRA, petitioners, vs. SECRETARY RAFAEL ALUNAN III, DEPARTMENT OF TOURISM and SECRETARY GUILLERMO M. CARAGUE, DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

AMOR T. MEDINA and FELIX L. POLIQUIT, intervenors. Leven S. Puno for petitioners. The Solicitor General for respondents.

BELLOSILLO, J.: ASSERTING that their plight is similar to petitioners' in Mandani v. Gonzales, 1 and in the consolidated cases ofAbrogar v. Garrucho, Jr., and Arnaldo v. Garrucho, Jr., 2 herein petitioners and intervenors seek reinstatement and payment of back wages. Section 29 of Executive Order No. 120, which took effect upon its approval on 30 January 1987, reorganizing the then Ministry of Tourism, provides that incumbents whose positions are not included in the new position structure and staffing pattern or who are not reappointed are deemed separated from the service. Pursuant thereto, the then Ministry of Tourism (MOT, now Department of Tourism, DOT) issued various office orders and memoranda declaring all positions thereat vacant, 3 and effecting the separation of many of its employees, 4 which led to theMandani, Abrogar and Arnaldo cases, as well as the instant petition. In Mandani, we declared null and void all office orders and memoranda issued pursuant to E.O. 120 and directed "public respondents or their successors . . . to immediately restore the petitioners to their positions without loss of seniority rights and with back salaries computed under the new staffing pattern from the dates of their invalid terminations at rates not lower than their former salaries." 5 In Abrogar and Arnaldo, we ordered the reinstatement of petitioners "to their former positions without loss of seniority rights and with back salaries computed under the new staffing pattern from the dates of their invalid dismissals at rates not lower than their former salaries, provided, however, that no supervening event shall have occured which would otherwise disqualify them for such reinstatement, and provided, further, that whatever benefits they may have received from the Government by reason of their termination shall be reimbursed through reasonable salary deduction." 6 Herein petitioners and intervenors claiming that they should not be deprived of the relief granted to their former co-employees plead for reinstatement "without loss of seniority rights and with back salaries computed under the new staffing pattern from dates of their invalid termination at rates not lower than their former salaries." 7 Decisive in this recourse is the determination of whether the separation of herein petitioners and intervenors from service was pursuant to office orders and memoranda declared void in Mandani. Except for petitioners Samuel Hipol, Jane Corros and Myrna Salvador, intervenors Concepcion Timario, Efren Fontanilla, Ascension Padilla and Evelyn Enriquez, public respondents do not dispute that petitioners and intervenors were unseated from the then Ministry of Tourism, pursuant to office orders and memoranda issued under E.O. No. 120. Public respondents nevertheless pray for the denial of the petition not only because petitioners and intervenors failed to exhaust administrative remedies and that their claims are barred by laches, but also in view of the disruption of the present organizational set-up if reinstatement is directed. The Solicitor General argues that while petitioners and intervenors (except petitioners Samuel Hipol, Jane Corros and Efren Fontanilla) were dismissed contemporaneously with their colleagues in Mandani (filed 3 June 1987 and decided 4 June 1990), Abrogar (filed 31 October 1990 and decided 6 August 1991) and Arnaldo (filed 7 January 1991 and decided 6 August 1991), they filed this petition and the interventions only in October 1991, and February, March, May and July 1992, or more than four (4) years later, hence, laches has set in. In reply, petitioners and intervenors explain

. . . since the time these DOT employees were illegally dismissed in May, 1987, most of them returned to the far away provinces of their origin because they became jobless. It was only by the slow and unreliable communication of word of mouth that they came to know much later on that they are (sic) entitled to be reinstated to the DOT . . . 8 The doctrine of laches is "principally a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in . . . the relation of parties." 9 In the case at bar, equity, if ever invoked, must lean in favor of petitioners and intervenors who were unjustly injured by public respondents' unlawful acts. The prejudice from the high-handed violation of the rights of petitioners and intervenors resulting in their loss of employment is far more serious than the inconvenience to public respondents in rectifying their own mistakes. Moreover, petitioners and intervenors cannot be deemed to have slept on their rights considering, as we should, the following unrebutted allegations in the main petition: 7. Petitioners protested their illegal termination from the DOT. Many of them questioned their termination with the Department of Labor and Employment where they filed a Complaint against the DOT and its top officials for illegal dismissal. . . . Some of them questioned their illegal termination before the Civil Service Commission. 8. Many of petitioners joined a picket and demonstration held by illegally terminated employees of the DOT before its office at the DOT building at the Luneta Park. 9. Petitioners were forced to receive their separation or retirement benefits from the DOT, but all under protest. The others continued to fight their cases with the Department of Labor and Employment even if they got their separation and/or retirement benefits. xxx xxx xxx 11. After the finality of this Decision (Mandani) . . . many other terminated employees of the DOT wrote to then DOT Secretary Peter D. Garrucho, Jr., as the successor-in-interest of former Sec. Jose U. Gonzales, and DBM Secretary Guillermo Carague, asking that following the Decision in thisMandani vs. Gonzalez case and being similarly situated as the twenty-eight (28) petitioners therein, that they be reinstated to their former or equivalent positions in the DOT and/or to be paid their back wages. Then . . . DOT Secretary Garrucho and DBM Sec. Carague never responded to these letters and did not reinstate and/or pay any of their back wages. xxx xxx xxx 16. Following the Decision of this Honorable Court in the Mandani vs. Gonzalez case and its Resolution in the consolidated cases of Abrogar vs. Garrucho and Arnaldo vs. Garrucho, petitioners made representations with the DOT to be reinstated and/or paid their back wages . . . . 10 Neither could petitioners and intervenors be faulted for not joining in the previous petitions because, as we held inCristobal v. Melchor (No. L- 43203, 29 July 1977; 78 SCRA 175, 183, 187) More importantly, Cristobal could be expected without necessarily spending time and money by going to court to relie upon the outcome of the case filed by his coemployees to protect his interests considering the similarity of his situation to that of the plaintiffs therein and the identical relief being sought. On this point, We find a statement of Justice Louis Brandeis of the United States Supreme Court in Southern Pacific vs. Bogert, relevant and persuasive, and We quote;

The essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy. Here plaintiffs, or others representing them, protested . . . and ever since they have . . . persisted in the diligent pursuit of a remedy . . .Where the cause of action is of such a nature that a suit to enforce it would be brought on behalf, not only of the plaintiff, but of all persons similarly situated, it is not essential that each such person should intervened (sic) in the suit brought in order that he be deemed thereafter free from the laches which bars those who sleep on their rights (citations omitted). xxx xxx xxx This Court, applying the principle of equity, need not be bound by the rigid application of the law, but rather its action should conform to the conditions or exigencies to a given problem or situation in order to grant a relief that will serve the ends of justice. To paraphrase then Chief Justice John Edwin Marshall of the United States Supreme Court, let us to (do) complete justice and not do justice by halves ("The court of equity in all cases delights to do complete justice and not by halves." Marshall, C. J. Knight vs. Knight, 3 P. Wms. 331, 334; Corbet v. Johnson, 1 Brock, 77, 81 both cited in Hefner, et al. vs. Northwestern Mutual Life Insurance Co.,123 U.S., 309, 313). We emphasize that prescription was never raised here as an issue; at most, it is deemed waived. In Fernandez v.Grolier International, Inc., 11 we stated: In the case of Director of Lands v. Dano (96 SCRA 161, 165), this Court held that "inasmuch as petitioner had never pleaded the statute of limitations, he is deemed to have waived the same". In the cited case of Directors of Lands v. Dano, the Director of Lands, who was similarly situated as public respondents herein who represent the Government, was deemed to have waived the defense of prescription "inasmuch as petitioner had never pleaded the statute of limitations." The matter of prescription, we reiterate, may not be considered at this late stage, not only because it was never raised and therefore now foreclosed, but more importantly, because it must yield to the higher interest of justice. Incidentally, it is only in the dissent that the question of prescription is introduced. Not even the Government raised it. In 1977, we in fact relaxed the rule on prescription in Cristobal v. Melchor 12 to give way to a determination of the case on the merits where, like in this case, "[i]t was an act of the government through its responsible officials . . . which contributed to the alleged delay in the filing of . . . complaint for reinstatement." But, we need not go back that far. On 15 August 1991, the Court En Banc granted the related petition in intervention of Alberto A. Peralta, et al., 13 in the consolidated cases of Abrogar v. Garrucho, and Arnaldo v. Garrucho, even if filed on 1 August 1991 or two months after the four-year prescriptive period, which lapsed on the 14th and 28th of May 1991. As we ruled in Cristobal v. Melchor, 14 "it is indeed the better rule that courts, under the principle of equity, will not be guided or bound strictly by the statute of limitations or the doctrine of laches when to do so manifest wrong and injustice would result." The principle that prescription does not run against the State, which contemplates a situation where a private party cannot defeat the claim of the State by raising the defense of prescription, is inapplicable because in this case the private parties are the ones filing a suit against the State. Consequently, we reiterate our pronouncement inFernandez v. Grolier International, Inc., 15 that "[i]t is true that there are exceptions to the rule that an action will not be declared to have prescribed if prescription is not expressly invoked (Garcia vs. Mathis, 100 SCRA 250). However, where considerations of substantial justice come in (as in this case when the very employment, and therefore the lifeblood, of each petitioner/intervenor is involved), it is better to resolve the issues on the basic merits of the case instead of applying the rule on prescription which the private respondent waived when it was not pleaded."

Anyhow, it was public respondents who created the problem of petitioners and intervenors by illegally abolishing their positions and terminating their services in outrageous disregard of the basic protection accorded civil servants, hence our repeated pronouncement that it was unconstitutional. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. It is therefore stricken from the statute books and considered never to have existed at all. Not only the parties but all persons are bound by the declaration of unconstitutionality which means that no one may thereafter invoke it nor may the courts be permitted to apply it in subsequent cases. It is, in other words, a total nullity. 16 Plainly, it was as if petitioners and intervenors were never served their termination orders and, consequently, were never separated from the service, The fact that they were not able to assume office and exercise their duties is attributable to the continuing refusal of public respondents to take them in unless they first obtained court orders, perhaps, for government budgetary and accounting purposes. Under the circumstances, the more prudent thing that public respondents could have done upon receipt of the decision in Mandani, if they were earnest in making amends and restoring petitioners and intervenors to their positions, was to inform the latter of the nullification of their termination orders and to return to work and resume their functions. After all, many of them were supposed to be waiting for instructions from the DOT because in their termination orders it promised to directly contact them by telephone, telegram or written notice as soon as funds for their separation would be available. 17 Furthermore, the representations to DOT made by petitioners and intervenors for their reinstatement partook of the nature of an administrative proceeding, and public respondents also failed to raise the issue of prescription therein. As already adverted to, that issue was never raised before us. In reciting the alleged instances of delay in bringing up this suit, the Solicitor General simply referred to laches, not prescription. Since this case is an original action, and if we treat the petition and interventions as ordinary complaints, the failure of public respondents to raise the issue of prescription in their comments cannot be interpreted any less than a waiver of that defense. For, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived, except the failure to state a cause of action which may be alleged in a later pleading, if one is permitted. 18 Above all, what public respondents brought up was the doctrine of laches, not prescription; and laches is different from prescription. The defense of laches applies independently of prescription. While prescription is concerned with the fact of delay, laches is concerned with the effect of delay. Prescription is a matter of time; laches is a question of inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition of the property or the relation of the parties. Prescription is statutory; laches is not. Laches applies in equity, whereas prescription applies at law. Prescription is based on fixed time, laches is not. 19 In any case, it can be said that the prescriptive period was tolled with the filing of the termination cases before the Department of Labor and Employment and the Civil Service Commission, the pendency of which is acknowledged in the Comment and Memorandum of public respondents. Incidentally, even the picketing of the premises and the placards demanding their immediate reinstatement could not be any less than written demands sufficient to interrupt the period of prescription. As we noted earlier, "[a]fter the finality of this Decision (Mandani) . . . many other terminated employees of the DOT wrote to then DOT Secretary Peter D. Garrucho, Jr . . . and DBM Secretary Guillermo Carague asking that following the Decision in this Mandani vs. Gonzalez case and being similarly situated as the twenty-eight (28) petitioners therein . . . they be reinstated to their former or equivalent positions in the DOT and/or to be paid their back wages." But "[t]hen . . . DOT Secretary Garrucho and DBM Sec. Carague never responded to these letters," 20 so that it may be said that the period that was interrupted never started to run again against petitioner and intervenors. The requirement of prior resort to administrative remedies is not an absolute rule and this did not bar direct access to this Court in the analogous cases of Dario v. Mison, 21 and Mandani v. Gonzalez, 22 thus The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue (this was raised by the

Civil Service Commission in G.R. No. 86241, and failure to exhaust administrative remedies was raised in G.R. Nos. 81954 and 81917 by the Solicitor General), and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need for stability in the public service" (Sarmiento III v. Mison, G.R. No. 79974, December 17, 1987, 153 SCRA 549, 551-552) and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. On the argument that existing organizational set-up would be disrupted if reinstatement be directed, we need only reiterate our 18 October 1990 Resolution in Mandani that An erring head of a Department, Bureau, or Office cannot avoid reinstatement, payment of back pay, and other acts of compliance with the orders of this Court by interposing changes effected subsequent to his unlawful acts and claiming that such changes make it difficult to obey this Court's orders. The basic principle to be applied whenever the Court declares an administrative official to have acted in an unlawful manner is for that official to undo the harmful effects of his illegal act and to accord to the aggrieved parties restoration or restitution in good faith to make up for the deprivations which may have been suffered because of his act. 23 Petitioners and intervenors, who are similarly situated as their counterparts in Mandani, Abrogar and Arnaldo, deserve no less than equal treatment. The Solicitor General takes exception to petitioner Samuel Hipol who was separated from the service under an order of 19 May 1986 issued pursuant to Sec. 2, Art. III, of Proclamation No. 3, and not under E.O. No. 120. 24 In reply, petitioner Hipol admits that he was "in the process of working for his reinstatement/reappointment at the DOT when . . . all positions thereat were declared vacant . . ." 25 Since his separation from service was not under void orders issued pursuant to E.O. No. 120 and, worse, he was not even an incumbent when E.O. No. 120 was issued, Hipol could not be considered as in the same situation as the petitioners in Mandani, Abrogar and Arnaldo. A parallel case is that of intervenor Concepcion Timario who, according to the Solicitor General, resigned effective 28 May 1987 and was not separated under any of the invalid orders. 26 Intervenor Timario however contends that she is entitled to relief because her courtesy resignation was accepted on 9 June 1987 or during the period positions were declared vacant pursuant to MOT Office Order No. 9-87. 27 It is significant to note that Timario's letter of resignation cited "professional reasons" as cause for her abdication 28 which, obviously, pertains to the nature of her work. Moreover, conspicuously absent is the customary order requiring the filing of courtesy resignations. Timario may not be permitted to characterize, by way of self-serving assertions, that her resignation was merely a courtesy resignation pursuant to any of the voided office orders or memoranda. The claim of the Solicitor General that petitioners Jane Corros and Efren Fontanilla were not employees of the Ministry of Tourism because their names did not appear in the regular plantilla of the Ministry of Tourism, 29 is specious since the listing of names in the plantilla is not a conclusive evidence of employment. Nonetheless, in view of the incessant allegation of the Solicitor General that Corros and Fontanilla were not employees of the Ministry, and considering the photocopies of Fontanilla's appointment papers and termination order submitted by him, 30 as well as the bare assertion of petitioner Corros that she was for 11 years PRO I in the Licensing Division of the Ministry and that her name could not be found in the plantilla because she is now Jane Ombawa in view of her marriage, 31 the fact of employment should be threshed out first in a proper forum as this Court is not a trier of facts. The Solicitor General contends that since petitioner Myrna Salvador was a casual employee, 32 intervenor Ascension Padilla was a temporary appointee whose appointment expired 20 February 1987, 33 and intervenor Evelyn Enriquez was also a temporary appointee, 34 their appointments are terminable at the pleasure of the appointing authority. Considering however that the office orders and memoranda which directed the separation of petitioners and intervenors were annulled, hence in legal contemplation did not exist, the effect is, as if the termination did not occur. However, since the

determination in this case is limited only to the extent of the nullity of said orders and memoranda, the reinstatement of Salvador, Padilla and Enriquez cannot be ordered in the instant proceeding. The Solicitor General also seeks dismissal of the petition and intervention against intervenors Rizalina T. Espiritu, Abdulia T. Landingin, Medardo Ilao, Rosita Somera, Armando Cruz, Catalino Dabu, Francisco Villaraiz, Norma Jumilia, Kennedy Basa, Rolando G. Cagasca and Alfonso Angeles because they were already reinstated. However, because of the unrefuted allegation that these employees were not yet paid their respective back wages, then to that extent, their petitions must be granted. In computing back wages, we cannot blindly accept the allegation of petitioners and intervenors that since their separation from the service in 1987, or about seven (7) years ago, they have been jobless hence entitled to full back wages. Conformably with existing jurisprudence, the award of back wages should not exceed a period of five (5) years. 35 In the final analysis, the dissent admits that petitioners and intervenors truly deserve the reliefs they pray for except that their cause of action has allegedly prescribed. Shall we now frustrate their rightful claims on a ground that was never raised, nor even hinted at, by public respondents in the entire proceeding? That would be antithetic to our concept of social justice; at the very least, it is subversive of the rudiments of fairplay. WHEREFORE, the instant petition is GRANTED. Petitioners Violeta Aldovino, Ali Alibasa, Felix Balino, Dionisio Ballesteros, Jose N. Balein, Jr., Freddie Cauton, Roberto Cruz, Trinidad Dacumos, Angelita Dimapilis, Andrea Estonilo, Mary Paz Frigillana, Manuel Henson, Merlene Ibalio, Magdalena Jamilla, Alexander Justiniani, Romulo Mirador, Julio Miravite, Dante Nagtalon, Clarita Namuco, Alicia Orbita, Angelita Pucan, Myrna P. Salvador, Librada Tantay, and Araceli De Veyra, and intervenors Josephine G. Andaya, Rosalinda T. Atienza, Jose M. Baldovino, Jr., Asuncion C. Briones, Maribelle A. Garcia, Florita O. Ocampo, Rolando Sison, Lourdes B. Tamayo, Rolando Valdez, Erlinda Piza, Eleonor Sagnit, Fidel Sevidal, Eloisa Alonzo, Angelito Dela Cruz, Lynie Arcenas, Maria Emma Jasmin, Macacuna Pangandaman, Rosalia Mauna, Romeo Padilla, Ascencion Padilla, Crispulo Padilla, Virgilio Dejero, Armando Mendoza, Anicita S. Baluyut, Antonio D. Edralin, Evelyn A. Enriquez, Ma. Victoria L. Jacobo, Daniel M. Manamtam, Jessie C. Manrique, Encarnacion T. Radaza, Mario P. Ruivivar, Amor T. Medina, and Felix L. Poliquit, are ordered REINSTATED immediately to their former positions without loss of seniority rights and with back salaries computed under the new staffing pattern from the dates of their invalid dismissals at rates not lower that their former salaries but not to exceed a period of five (5) years, provided, however, that no supervening event shall have occured which would otherwise disqualify then from such reinstatement, and provided, further, that whatever benefits they may have received from the Government by reason of their termination shall be reimbursed through reasonable salary deductions. Public respondents are likewise ordered to pay intervenors Rizalina P. Espiritu, Abdulia T. Landingin, Medardo Ilao, Rosita Somera, Armando Cruz, Catalino Dabu, Francisco Villaraiz, Norma Jumilia, Kennedy Basa, Rolando G. Cagasca and Alfonso Angeles their back salaries similarly under the above-quoted conditions. As regards petitioners Samuel Hipol, Jane Corros and Efren Fontanilla, their petition is DISMISSED, as well as the petition in intervention of Concepcion Timario.