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Bill of Rights

G.R. No. 100150 January 5, 1994 BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners, vs. COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents. The City Attorney for petitioners. The Solicitor General for public respondent.

VITUG, J.: The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction. The petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al." The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers Management Council under the Office of the City Mayor, was sent to, and received by, the private respondents (being the officers and members of the North EDSA Vendors Association, Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12 July 1990) within which to vacate the questioned premises of North EDSA. 1 Prior to their receipt of the demolition notice, the private respondents were informed by petitioner Quimpo that their stalls should be removed to give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque Fermo, filed a letter-complaint ( Pinag-samang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls, sari-sari stores, and carinderia along North EDSA. The complaint was docketed as CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing the stalls and shanties at North EDSA pending resolution of the vendors/squatters' complaint before the Commission" and ordering said petitioners to appear before the CHR. 4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the demolition of private respondents' stalls, sari-sari stores and carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of the private respondents to purchase light housing materials and food under the Commission's supervision and again directed the petitioners to "desist from further demolition, with the warning that violation of said order would lead to a citation for contempt and arrest." 6 A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred, among other things, that:
1. this case came about due to the alleged violation by the (petitioners) of the InterAgency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila; xxx xxx xxx 3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to therein refers to moratorium in the demolition of the structures of poor dwellers; 4. that the complainants in this case (were) not poor dwellers but independent business entrepreneurs even this Honorable Office admitted in its resolution of 1 August 1990 that the complainants are indeed, vendors; 5. that the complainants (were) occupying government land, particularly the sidewalk of EDSA corner North Avenue, Quezon City; . . . and 6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and authority whether or not a certain business establishment (should) be allowed to operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already issued, upon grounds clearly specified by law and ordinance. 8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise manifested that they would bring the case to the courts. On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the Commission's authority should be understood as being confined only to the investigation of violations of civil and political rights, and that "the rights allegedly violated in this case (were) not civil and political rights, (but) their privilege to engage in business." 9 On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with the contempt charge that had meantime been filed by the private respondents, albeit vigorously objected to by petitioners (on the ground that the motion to dismiss was still then unresolved). 10

In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine of P500.00 on each of them. On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had jurisdiction over the complaint filed by the squatters-vendors who complained of the gross violations of their human and constitutional rights. The motion to dismiss should be and is hereby DENIED for lack of merit. 13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a paper tiger limited only to investigating civil and political rights, but it (should) be (considered) a quasi-judicial body with the power to provide appropriate legal measures for the protection of human rights of all persons within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and to dignity. All these brazenly and violently ignored and trampled upon by respondents with little regard at the same time for the basic rights of women and children, and their health, safety and welfare. Their actions have psychologically scarred and traumatized the children, who were witness and exposed to such a violent demonstration of Man's inhumanity to man.

In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied. Hence, this recourse. The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we also issued a temporary restraining order, directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-1580." 17 The petitioners pose the following: Whether or not the public respondent has jurisdiction: a) to investigate the alleged violations of the "business rights" of the private respondents whose stalls were demolished by the petitioners at the instance and authority given by the Mayor of Quezon City; b) to impose the fine of P500.00 each on the petitioners; and c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his comment for public respondent CHR. The latter thus filed its own comment, 18 through Hon. Samuel Soriano, one of its Commissioners. The Court also resolved to dispense with the comment of private respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991, requiring such comment. The petition has merit. The Commission on Human Rights was created by the 1987 Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so superseded as well, the Presidential Committee on Human Rights. 21 The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. 23 This view, however, has not heretofore been shared by this Court. In Cario v. Commission on Human Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is "only the first of the enumerated powers and functions that bears any resemblance to adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this controversy and, its is, to determine the extent of CHR's investigative power. It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a symposium on human rights in the Philippines, sponsored by the University of the Philippines in 1977, one of the questions that has been propounded is "(w)hat do you understand by "human rights?" The participants, representing different sectors of the society, have given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity. They are the same in all parts of the world, whether the Philippines or England, Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . . . Human rights include civil rights, such as the right to life, liberty, and property; freedom of speech, of the press, of religion, academic freedom, and the rights of the accused to due process of law; political rights, such as the right to elect public officials, to be elected to public office, and to form political associations and engage in politics; and social rights, such as the right to an education, employment, and social services. 25 Human rights are the entitlement that inhere in the individual person from the sheer fact of his humanity. . . . Because they are inherent, human rights are not granted by the State but can only be recognized and protected by it. 26 (Human rights include all) the civil, political, economic, social, and cultural rights defined in the Universal Declaration of Human Rights. 27

Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right, innate and inalienable. 28

The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, suggests that the scope of human rights can be understood to include those that relate to an individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the term to the universally accepted traits and attributes of an individual, along with what is generally considered to be his inherent and inalienable rights, encompassing almost all aspects of life. Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional Commission in adopting the specific provisions on human rights and in creating an independent commission to safeguard these rights? It may of value to look back at the country's experience under the martial law regime which may have, in fact, impelled the inclusions of those provisions in our fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights most of the human rights expressed in the International Covenant, these rights became unavailable upon the proclamation of Martial Law on 21 September 1972. Arbitrary action then became the rule. Individuals by the thousands became subject to arrest upon suspicion, and were detained and held for indefinite periods, sometimes for years, without charges, until ordered released by the Commander-in-Chief or this representative. The right to petition for the redress of grievances became useless, since group actions were forbidden. So were strikes. Press and other mass media were subjected to censorship and short term licensing. Martial law brought with it the suspension of the writ of habeas corpus, and judges lost independence and security of tenure, except members of the Supreme Court. They were required to submit letters of resignation and were dismissed upon the acceptance thereof. Torture to extort confessions were practiced as declared by international bodies like Amnesty International and the International Commission of Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the importance of human rights and also because civil and political rights have been determined by many international covenants and human rights legislations in the Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its impact and the precise nature of its task, hence, its effectivity would also be curtailed . So, it is important to delienate the parameters of its tasks so that the commission can be most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are very broad. The Article on the Bill of Rights covers civil and political rights. Every single right of an individual involves his civil right or his political right. So, where do we draw the line? MR. GARCIA. Actually, these civil and political rights have been made clear in the language of human rights advocates, as well as in the Universal Declaration of Human Rights which addresses a number of articles on the right to life, the right against torture, the right to fair and public hearing, and so on. These are very specific rights that are considered enshrined in many international documents and legal instruments as constituting civil and political rights, and these are precisely what we want to defend here. MR. BENGZON. So, would the commissioner say civil and political rights as defined in the Universal Declaration of Human Rights? MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and Political Rights distinguished this right against torture. MR. BENGZON. So as to distinguish this from the other rights that we have? MR. GARCIA. Yes, because the other rights will encompass social and economic rights, and there are other violations of rights of citizens which can be addressed to the proper courts and authorities. xxx xxx xxx MR. BENGZON. So, we will authorize the commission to define its functions, and, therefore, in doing that the commission will be authorized to take under its wings cases which perhaps heretofore or at this moment are under the jurisdiction of the ordinary investigative and prosecutorial agencies of the government. Am I correct? MR. GARCIA. No. We have already mentioned earlier that we would like to define the specific parameters which cover civil and political rights as covered by the international standards governing the behavior of governments regarding the particular political and civil rights of citizens, especially of political detainees or prisoners. This particular aspect we have experienced during martial law which we would now like to safeguard. MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are really trying to say is, perhaps, at the proper time we could specify all those rights stated in the Universal Declaration of Human Rights and defined as human rights. Those are the rights that we envision here? MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our Constitution. They are integral parts of that. MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill of Rights covered by human rights? MR. GARCIA. No, only those that pertain to civil and political rights . xxx xxx xxx MR. RAMA. In connection with the discussion on the scope of human rights, I would like to state that in the past regime, everytime we invoke the violation of human rights, the

Marcos regime came out with the defense that, as a matter of fact, they had defended the rights of people to decent living, food, decent housing and a life consistent with human dignity. So, I think we should really limit the definition of human rights to political rights . Is that the sense of the committee, so as not to confuse the issue ? MR. SARMIENTO. Yes, Madam President. MR. GARCIA. I would like to continue and respond also to repeated points raised by the previous speaker. There are actually six areas where this Commission on Human Rights could act effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5) salvagings and hamletting; and 6) other crimes committed against the religious . xxx xxx xxx The PRESIDENT. Commissioner Guingona is recognized. MR. GUINGONA. Thank You Madam President. I would like to start by saying that I agree with Commissioner Garcia that we should, in order to make the proposed Commission more effective, delimit as much as possible, without prejudice to future expansion. The coverage of the concept and jurisdictional area of the term "human rights". I was actually disturbed this morning when the reference was made without qualification to the rights embodied in the universal Declaration of Human Rights, although later on, this was qualified to refer to civil and political rights contained therein. If I remember correctly, Madam President, Commissioner Garcia, after mentioning the Universal Declaration of Human Rights of 1948, mentioned or linked the concept of human right with other human rights specified in other convention which I do not remember. Am I correct? MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985? MR. GUINGONA. I do not know, but the commissioner mentioned another. MR. GARCIA. Madam President, the other one is the International Convention on Civil and Political Rights of which we are signatory. MR. GUINGONA. I see. The only problem is that, although I have a copy of the Universal Declaration of Human Rights here, I do not have a copy of the other covenant mentioned. It is quite possible that there are rights specified in that other convention which may not be specified here. I was wondering whether it would be wise to link our concept of human rights to general terms like "convention," rather than specify the rights contained in the convention. As far as the Universal Declaration of Human Rights is concerned, the Committee, before the period of amendments, could specify to us which of these articles in the Declaration will fall within the concept of civil and political rights, not for the purpose of including these

in the proposed constitutional article, but to give the sense of the Commission as to what human rights would be included, without prejudice to expansion later on, if the need arises. For example, there was no definite reply to the question of Commissioner Regalado as to whether the right to marry would be considered a civil or a social right. It is not a civil right? MR. GARCIA. Madam President, I have to repeat the various specific civil and political rights that we felt must be envisioned initially by this provision freedom from political detention and arrest prevention of torture, right to fair and public trials, as well as crimes involving disappearance, salvagings, hamlettings and collective violations . So, it is limited to politically related crimes precisely to protect the civil and political rights of a specific group of individuals, and therefore, we are not opening it up to all of the definite areas . MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer linking his concept or the concept of the Committee on Human Rights with the so-called civil or political rights as contained in the Universal Declaration of Human Rights. MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I was referring to an international instrument. MR. GUINGONA. I know. MR. GARCIA. But it does not mean that we will refer to each and every specific article therein, but only to those that pertain to the civil and politically related, as we understand it in this Commission on Human Rights. MR. GUINGONA. Madam President, I am not even clear as to the distinction between civil and social rights. MR. GARCIA. There are two international covenants: the International Covenant and Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The second covenant contains all the different rights-the rights of labor to organize, the right to education, housing, shelter, et cetera. MR. GUINGONA. So we are just limiting at the moment the sense of the committee to those that the Gentlemen has specified. MR. GARCIA. Yes, to civil and political rights. MR. GUINGONA. Thank you. xxx xxx xxx SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot stress more on how much we need a Commission on Human Rights. . . . . . . human rights victims are usually penniless. They cannot pay and very few lawyers will accept clients who do not pay. And so, they are the ones more abused and oppressed. Another reason is, the cases involved are very delicate torture, salvaging, picking up without any warrant of arrest, massacre and the persons who are allegedly guilty are people in power like politicians, men in the military and big shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially for the little Filipino, the little individual who needs this kind of help and cannot get it. And I think we should concentrate only on civil and political violations because if we open this to land, housing and health, we will have no place to go again and we will not receive any response. . . . 30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision empowering the Commission on Human Rights to "investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights" (Sec. 1). The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider sense, to all its inhabitants, and are not connected with the organization or administration of the government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil rights are rights appertaining to a person by virtue of his citizenship in a state or community. Such term may also refer, in its general sense, to rights capable of being enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution, unreasonable searches and seizures, and imprisonment for debt. 32 Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the establishment or administration of government, the right of suffrage, the right to hold public office, the right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of government. 34 Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates envisioned a Commission on Human Rights that would focus its attention to the more severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the "(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes committed against the religious." While the enumeration has not likely been meant to have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless, significant for the tone it has set. In any event, the delegates did not apparently take comfort in peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendation." 35 In the particular case at hand, there is no cavil that what are sought to be demolished are the stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private respondents on a land which is planned to be developed into a "People's Park". More than that, the land adjoins the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is indeed paradoxical that a right which

is claimed to have been violated is one that cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude that the order for the demolition of the stalls, sari-sari stores and carinderia of the private respondents can fall within the compartment of "human rights violations involving civil and political rights" intended by the Constitution. On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. In Export Processing Zone Authority vs. Commission on Human Rights, 36 the Court, speaking through Madame Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection" may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, it that were the intention, the Constitution would have expressly said so. "Jurisdiction is conferred only by the Constitution or by law". It is never derived by implication. Evidently, the "preventive measures and legal aid services" mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued "by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interests of a party thereto, and for no other purpose." (footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government. 37 The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is there lack of locus standi on the part of the petitioners to question the disbursement but, more importantly, the matter lies with the appropriate administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard, and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also prevent CHR from precisely doing that. 39 WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made permanent. No costs. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ., concur. G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees, vs. THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant. VICTOR ALABANZA, intervenor-appellee. Panganiban, Abad and Associates Law Office for respondent-appellant. J. M. Aruego, Tenchavez and Associates for intervenor-appellee. FERNANDO, J.: The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be reversed, there being a failure of the requisite showing to sustain an attack against its validity. The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and motels,

characterized as legitimate businesses duly licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood to not less than 2,500 person and representing an investment of more than P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3). After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that the provision in the same section which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound together, it also being provided that the premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of the due process clause. There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ

of preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963. In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the guests or customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty against self incrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition. Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964, which reads: 1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio City, all having the capacity to sue and be sued; 2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances; 3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and Ermita districts in Manila; 4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15, 1963 (Annex B); 5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C; 6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with citations of what they considered to be applicable American authorities and praying for a judgment declaring the challenged ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction issued. After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision passed upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal. As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in both procedural and substantive aspects. Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.2 It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable

and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the resumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers,4 extending as it does "to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society.7 There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are intended to protect public morals. On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the

people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and a substantive requisite to free the challenged ordinance, or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances,"19 decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.21 It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in the records, and, as has been set forth, none is even attempted here to attach to an ordinance of such character the taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness. Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-useful occupations or enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for non-useful

occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23 Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the American Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so levied is for public purposes, just and uniform.25 As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them of their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may result from the legal exercise of that power."27 Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these

different conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good x x x The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power."28 A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all.29 It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of due process? Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and uncertain in view of the necessity for determining whether the companion or companions referred to are those arriving with the customer or guest at the time of the registry or entering the room With him at about the same time or coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which from their standpoint would require a guess as to whether the "full rate of payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently upheld that what makes a statute

susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with what they omit but there is no canon against using common sense in construing laws as saying what they obviously mean."35 That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed decision. Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs. Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Concepcion, C.J. and Dizon, J., are on leave. G.R. No. 196425 July 24, 2012

PROSPERO A. PICHAY, JR., Petitioner, vs. OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS INVESTIGATIVE AND ADJUDICATORY DIVISION, HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, and HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, and as an ex-officio member of the Monetary Board, Respondents. DECISION PERLAS-BERNABE, J.: The Case This is a Petition for Certiorari and Prohibition with a prayer for the issuance of a temporary restraining order, seeking to declare as unconstitutional Executive Order No. 13, entitled, "Abolishing the Presidential Anti-Graft Commission and Transferring Its Investigative, Adjudicatory and Recommendatory Functions to the Office Of The Deputy Executive Secretary For Legal Affairs, Office of the President",1 and to permanently prohibit respondents from administratively proceeding against petitioner on the strength of the assailed executive order. The Facts On April 16, 2001, then President Gloria Macapagal-Arroyo issued Executive Order No. 12 (E.O. 12) creating the Presidential Anti-Graft Commission (PAGC) and vesting it with the power

to investigate or hear administrative cases or complaints for possible graft and corruption, among others, against presidential appointees and to submit its report and recommendations to the President. Pertinent portions of E.O. 12 provide: Section 4. Jurisdiction, Powers and Functions. (a) x x x xxx xxx

(b) The Commission, acting as a collegial body, shall have the authority to investigate or hear administrative cases or complaints against all presidential appointees in the government and any of its agencies or instrumentalities xxx xxx xxx xxx xxx xxx xxx

Section 8. Submission of Report and Recommendations. After completing its investigation or hearing, the Commission en banc shall submit its report and recommendations to the President. The report and recommendations shall state, among others, the factual findings and legal conclusions, as well as the penalty recommend (sic) to be imposed or such other action that may be taken." On November 15, 2010, President Benigno Simeon Aquino III issued Executive Order No. 13 (E.O. 13), abolishing the PAGC and transferring its functions to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA), more particularly to its newly-established Investigative and Adjudicatory Division (IAD). The full text of the assailed executive order reads: EXECUTIVE ORDER NO. 13 ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE PRESIDENT WHEREAS, this administration has a continuing mandate and advocacy to fight and eradicate corruption in the different departments, bureaus, offices and other government agencies and instrumentalities; WHEREAS, the government adopted a policy of streamlining the government bureaucracy to promote economy and efficiency in government; WHEREAS, Section VII of the 1987 Philippine Constitution provides that the President shall have control of all the executive departments, bureaus and offices;

WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order 292 (Administrative Code of 1987) provides for the continuing authority of the President to reorganize the administrative structure of the Office of the President; WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing Authority to the President of the Philippines to Reorganize the National Government), as amended by PD 1722, provides that the President of the Philippines shall have continuing authority to reorganize the administrative structure of the National Government and may, at his discretion, create, abolish, group, consolidate, merge or integrate entities, agencies, instrumentalities and units of the National Government, as well as, expand, amend, change or otherwise modify their powers, functions and authorities; WHEREAS, Section 78 of the General Provisions of Republic Act No. 9970 (General Appropriations Act of 2010) authorizes the President of the Philippines to direct changes in the organizational units or key positions in any department or agency; NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by law, do hereby order the following: SECTION 1. Declaration of Policy. It is the policy of the government to fight and eradicate graft and corruption in the different departments, bureaus, offices and other government agencies and instrumentalities. The government adopted a policy of streamlining the government bureaucracy to promote economy and efficiency in the government. SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To enable the Office of the President (OP) to directly investigate graft and corrupt cases of Presidential appointees in the Executive Department including heads of government-owned and controlled corporations, the Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital functions and other powers and functions inherent or incidental thereto, transferred to the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA), OP in accordance with the provisions of this Executive Order. SECTION 3. Restructuring of the Office of the Deputy Executive Secretary for Legal Affairs, OP. In addition to the Legal and Legislative Divisions of the ODESLA, the Investigative and Adjudicatory Division shall be created. The newly created Investigative and Adjudicatory Division shall perform powers, functions and duties mentioned in Section 2 hereof, of PAGC. The Deputy Executive Secretary for Legal Affairs (DESLA) will be the recommending authority to the President, thru the Executive Secretary, for approval, adoption or modification of the report and recommendations of the Investigative and Adjudicatory Division of ODESLA.

SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC. The personnel who may be affected by the abolition of the PAGC shall be allowed to avail of the benefits provided under existing laws if applicable. The Department of Budget and Management (DBM) is hereby ordered to release the necessary funds for the benefits of the employees. SECTION 5. Winding Up of the Operation and Disposition of the Functions, Positions, Personnel, Assets and Liabilities of PAGC. The winding up of the operations of PAGC including the final disposition or transfer of their functions, positions, personnel, assets and liabilities as may be necessary, shall be in accordance with the applicable provision(s) of the Rules and Regulations Implementing EO 72 (Rationalizing the Agencies Under or Attached to the Office of the President) dated March 15, 2002. The winding up shall be implemented not later than 31 December 2010. The Office of the Executive Secretary, with the assistance of the Department of Budget and Management, shall ensure the smooth and efficient implementation of the dispositive actions and winding-up of the activities of PAGC. SECTION 6. Repealing Clause. All executive orders, rules, regulations and other issuances or parts thereof, which are inconsistent with the provisions of this Executive Order, are hereby revoked or modified accordingly. SECTION 7. Effectivity. This Executive Order shall take effect immediately after its publication in a newspaper of general circulation. On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed before the IADODESLA a complaint affidavit2 for grave misconduct against petitioner Prospero A. Pichay, Jr., Chairman of the Board of Trustees of the Local Water Utilities Administration (LWUA), as well as the incumbent members of the LWUA Board of Trustees, namely, Renato Velasco, Susana Dumlao Vargas, Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which arose from the purchase by the LWUA of Four Hundred Forty-Five Thousand Three Hundred Seventy Seven (445,377) shares of stock of Express Savings Bank, Inc. On April 14, 2011, petitioner received an Order3 signed by Executive Secretary Paquito N. Ochoa, Jr. requiring him and his co-respondents to submit their respective written explanations under oath. In compliance therewith, petitioner filed a Motion to Dismiss Ex Abundante Ad Cautelam manifesting that a case involving the same transaction and charge of grave misconduct entitled, "Rustico B. Tutol, et al. v. Prospero Pichay, et al.", and docketed as OMB-C-A-100426-I, is already pending before the Office of the Ombudsman. Now alleging that no other plain, speedy and adequate remedy is available to him in the ordinary course of law, petitioner has resorted to the instant petition for certiorari and prohibition upon the following grounds: I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE LEGISLATURE TO CREATE A PUBLIC OFFICE.

II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE LEGISLATURE TO APPROPRIATE FUNDS. III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF CONGRESS TO DELEGATE QUASI-JUDICIAL POWERS TO ADMINISTRATIVE AGENCIES. IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON THE POWERS OF THE OMBUDSMAN. V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE GUARANTEE OF DUE PROCESS. VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL PROTECTION CLAUSE. Our Ruling In assailing the constitutionality of E.O. 13, petitioner asseverates that the President is not authorized under any existing law to create the Investigative and Adjudicatory Division, Office of the Deputy Executive Secretary for Legal Affairs (IAD-ODESLA) and that by creating a new, additional and distinct office tasked with quasi-judicial functions, the President has not only usurped the powers of congress to create a public office, appropriate funds and delegate quasijudicial functions to administrative agencies but has also encroached upon the powers of the Ombudsman. Petitioner avers that the unconstitutionality of E.O. 13 is also evident when weighed against the due process requirement and equal protection clause under the 1987 Constitution. The contentions are unavailing. The President has Continuing Authority to Reorganize the Executive Department under E.O. 292. Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as the Administrative Code of 1987, vests in the President the continuing authority to reorganize the offices under him in order to achieve simplicity, economy and efficiency. E.O. 292 sanctions the following actions undertaken for such purpose: (1)Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof or transferring functions from one unit to another; (2)Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and

(3)Transfer any agency under the Office of the President to any other Department or Agency as well as transfer agencies to the Office of the President from other departments or agencies.4 In the case of Buklod ng Kawaning EIIB v. Zamora5 the Court affirmed that the President's authority to carry out a reorganization in any branch or agency of the executive department is an express grant by the legislature by virtue of E.O. 292, thus: But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy of the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. (Emphasis supplied) And in Domingo v. Zamora,6 the Court gave the rationale behind the President's continuing authority in this wise: The law grants the President this power in recognition of the recurring need of every President to reorganize his office "to achieve simplicity, economy and efficiency." The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies. After all, the Office of the President is the command post of the President. (Emphasis supplied) Clearly, the abolition of the PAGC and the transfer of its functions to a division specially created within the ODESLA is properly within the prerogative of the President under his continuing "delegated legislative authority to reorganize" his own office pursuant to E.O. 292. Generally, this authority to implement organizational changes is limited to transferring either an office or a function from the Office of the President to another Department or Agency, and the other way around.7 Only Section 31(1) gives the President a virtual freehand in dealing with the internal structure of the Office of the President Proper by allowing him to take actions as extreme as abolition, consolidation or merger of units, apart from the less drastic move of transferring functions and offices from one unit to another. Again, in Domingo v. Zamora8 the Court noted: However, the President's power to reorganize the Office of the President under Section 31 (2) and (3) of EO 292 should be distinguished from his power to reorganize the Office of the President Proper. Under Section 31 (1) of EO 292, the President can reorganize the Office of the President Proper by abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast, under Section 31 (2) and (3) of EO 292, the President's power to reorganize offices outside the Office of the President Proper but still within the Office of the

President is limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies, and vice versa. The distinction between the allowable organizational actions under Section 31(1) on the one hand and Section 31 (2) and (3) on the other is crucial not only as it affects employees' tenurial security but also insofar as it touches upon the validity of the reorganization, that is, whether the executive actions undertaken fall within the limitations prescribed under E.O. 292. When the PAGC was created under E.O. 12, it was composed of a Chairman and two (2) Commissioners who held the ranks of Presidential Assistant II and I, respectively,9 and was placed directly "under the Office of the President."10 On the other hand, the ODESLA, to which the functions of the PAGC have now been transferred, is an office within the Office of the President Proper.11 Since both of these offices belong to the Office of the President Proper, the reorganization by way of abolishing the PAGC and transferring its functions to the ODESLA is allowable under Section 31 (1) of E.O. 292. Petitioner, however, goes on to assert that the President went beyond the authority granted by E.O. 292 for him to reorganize the executive department since his issuance of E.O. 13 did not merely involve the abolition of an office but the creation of one as well. He argues that nowhere in the legal definition laid down by the Court in several cases does a reorganization include the act of creating an office. The contention is misplaced. The Reorganization Did not Entail the Creation of a New, Separate and Distinct Office. The abolition of the PAGC did not require the creation of a new, additional and distinct office as the duties and functions that pertained to the defunct anti-graft body were simply transferred to the ODESLA, which is an existing office within the Office of the President Proper. The reorganization required no more than a mere alteration of the administrative structure of the ODESLA through the establishment of a third division the Investigative and Adjudicatory Division through which ODESLA could take on the additional functions it has been tasked to discharge under E.O. 13. In Canonizado v. Aguirre,12 We ruled that Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. The Reorganization was Pursued in Good Faith. A valid reorganization must not only be exercised through legitimate authority but must also be pursued in good faith. A reorganization is said to be carried out in good faith if it is done for purposes of economy and efficiency.13 It appears in this case that the streamlining of functions within the Office of the President Proper was pursued with such purposes in mind.

In its Whereas clauses, E.O. 13 cites as bases for the reorganization the policy dictates of eradicating corruption in the government and promoting economy and efficiency in the bureaucracy. Indeed, the economical effects of the reorganization is shown by the fact that while Congress had initially appropriated P22 Million for the PAGC's operation in the 2010 annual budget,14 no separate or added funding of such a considerable amount was ever required after the transfer of the PAGC functions to the IAD-ODESLA. Apparently, the budgetary requirements that the IAD-ODESLA needed to discharge its functions and maintain its personnel would be sourced from the following year's appropriation for the President's Offices under the General Appropriations Act of 2011.15 Petitioner asseverates, however, that since Congress did not indicate the manner by which the appropriation for the Office of the President was to be distributed, taking therefrom the operational funds of the IADODESLA would amount to an illegal appropriation by the President. The contention is without legal basis. There is no usurpation of the legislative power to appropriate public funds. In the chief executive dwell the powers to run government. Placed upon him is the power to recommend the budget necessary for the operation of the Government,16 which implies that he has the necessary authority to evaluate and determine the structure that each government agency in the executive department would need to operate in the most economical and efficient manner.17 Hence, the express recognition under Section 78 of R.A. 9970 or the General Appropriations Act of 2010 of the Presidents authority to "direct changes in the organizational units or key positions in any department or agency." The aforecited provision, often and consistently included in the general appropriations laws, recognizes the extent of the Presidents power to reorganize the executive offices and agencies under him, which is, "even to the extent of modifying and realigning appropriations for that purpose."18 And to further enable the President to run the affairs of the executive department, he is likewise given constitutional authority to augment any item in the General Appropriations Law using the savings in other items of the appropriation for his office.19 In fact, he is explicitly allowed by law to transfer any fund appropriated for the different departments, bureaus, offices and agencies of the Executive Department which is included in the General Appropriations Act, to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment.20 Thus, while there may be no specific amount earmarked for the IAD-ODESLA from the total amount appropriated by Congress in the annual budget for the Office of the President, the necessary funds for the IAD-ODESLA may be properly sourced from the President's own office budget without committing any illegal appropriation. After all, there is no usurpation of the legislature's power to appropriate funds when the President simply allocates the existing funds previously appropriated by Congress for his office. The IAD-ODESLA is a fact-finding and recommendatory body not vested with quasi-judicial powers.

Petitioner next avers that the IAD-ODESLA was illegally vested with judicial power which is reserved to the Judicial Department and, by way of exception through an express grant by the legislature, to administrative agencies. He points out that the name Investigative and Adjudicatory Division is proof itself that the IAD-ODESLA wields quasi-judicial power. The argument is tenuous. As the OSG aptly explained in its Comment,21 while the term "adjudicatory" appears part of its appellation, the IAD-ODESLA cannot try and resolve cases, its authority being limited to the conduct of investigations, preparation of reports and submission of recommendations. E.O. 13 explicitly states that the IAD-ODESLA shall "perform powers, functions and duties xxx, of PAGC."22 Under E.O. 12, the PAGC was given the authority to "investigate or hear administrative cases or complaints against all presidential appointees in the government"23 and to "submit its report and recommendations to the President."24 The IAD-ODESLA is a fact-finding and recommendatory body to the President, not having the power to settle controversies and adjudicate cases. As the Court ruled in Cario v. Commission on Human Rights,25 and later reiterated in Biraogo v. The Philippine Truth Commission:26 Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. The President's authority to issue E.O. 13 and constitute the IAD-ODESLA as his fact-finding investigator cannot be doubted. After all, as Chief Executive, he is granted full control over the Executive Department to ensure the enforcement of the laws. Section 17, Article VII of the Constitution provides: Section 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed. The obligation to see to it that laws are faithfully executed necessitates the corresponding power in the President to conduct investigations into the conduct of officials and employees in the executive department.27 The IAD-ODESLA does not encroach upon the powers and duties of the Ombudsman. Contrary to petitioner's contention, the IAD-ODESLA did not encroach upon the Ombudsman's primary jurisdiction when it took cognizance of the complaint affidavit filed against him notwithstanding the earlier filing of criminal and administrative cases involving the same charges and allegations before the Office of the Ombudsman. The primary jurisdiction of the Ombudsman to investigate and prosecute cases refers to criminal cases cognizable by the Sandiganbayan and not to administrative cases. It is only in the exercise of its primary

jurisdiction that the Ombudsman may, at any time, take over the investigation being conducted by another investigatory agency. Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of 1989, empowers the Ombudsman to (1)Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases. (Emphasis supplied) Since the case filed before the IAD-ODESLA is an administrative disciplinary case for grave misconduct, petitioner may not invoke the primary jurisdiction of the Ombudsman to prevent the IAD-ODESLA from proceeding with its investigation. In any event, the Ombudsman's authority to investigate both elective and appointive officials in the government, extensive as it may be, is by no means exclusive. It is shared with other similarly authorized government agencies.28 While the Ombudsman's function goes into the determination of the existence of probable cause and the adjudication of the merits of a criminal accusation, the investigative authority of the IAD- ODESLA is limited to that of a fact-finding investigator whose determinations and recommendations remain so until acted upon by the President. As such, it commits no usurpation of the Ombudsman's constitutional duties. Executive Order No. 13 Does Not Violate Petitioner's Right to Due Process and the Equal Protection of the Laws. Petitioner goes on to assail E.O. 13 as violative of the equal protection clause pointing to the arbitrariness of limiting the IAD-ODESLA's investigation only to presidential appointees occupying upper-level positions in the government. The equal protection of the laws is a guaranty against any form of undue favoritism or hostility from the government.29 It is embraced under the due process concept and simply requires that, in the application of the law, "all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed."30 The equal protection clause, however, is not absolute but subject to reasonable classification so that aggrupations bearing substantial distinctions may be treated differently from each other. This we ruled in Farinas v. Executive Secretary,31 wherein we further stated that The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. (Emphasis supplied)

Presidential appointees come under the direct disciplining authority of the President. This proceeds from the well settled principle that, in the absence of a contrary law, the power to remove or to discipline is lodged in the same authority on which the power to appoint is vested.32 Having the power to remove and/or discipline presidential appointees, the President has the corollary authority to investigate such public officials and look into their conduct in office.33 Petitioner is a presidential appointee occupying the high-level position of Chairman of the LWUA. Necessarily, he comes under the disciplinary jurisdiction of the President, who is well within his right to order an investigation into matters that require his informed decision. There are substantial distinctions that set apart presidential appointees occupying upper-level positions in government from non-presidential appointees and those that occupy the lower positions in government. In Salumbides v. Office of the Ombudsman,34 we had ruled extensively on the substantial distinctions that exist between elective and appointive public officials, thus: Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. xxxx An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.1wphi1 It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (Emphasis supplied) Also, contrary to petitioner's assertions, his right to due process was not violated when the IADODESLA took cognizance of the administrative complaint against him since he was given sufficient opportunity to oppose the formal complaint filed by Secretary Purisima. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process,35 which simply means having the opportunity to explain ones side.36 Hence, as long as petitioner was given the opportunity to explain his side and present evidence, the requirements of due process are satisfactorily complied with because what the law abhors is an absolute lack of opportunity to be heard.37 The records show that petitioner was issued an Order requiring him to submit his written explanation under oath with respect to the charge of grave misconduct filed against him. His own failure to submit his explanation despite notice defeats his subsequent claim of denial of due process. Finally, petitioner doubts that the IAD-ODESLA can lawfully perform its duties as an impartial tribunal, contending that both the IAD-ODESLA and respondent Secretary Purisima are

connected to the President. The mere suspicion of partiality will not suffice to invalidate the actions of the IAD-ODESLA. Mere allegation is not equivalent to proof. Bias and partiality cannot be presumed.38 Petitioner must present substantial proof to show that the lAD-ODES LA had unjustifiably sided against him in the conduct of the investigation. No such evidence has been presented as to defeat the presumption of regularity m the performance of the fact-finding investigator's duties. The assertion, therefore, deserves scant consideration. Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one.39 Petitioner has failed to discharge the burden of proving the illegality of E.O. 13, which IS indubitably a valid exercise of the President's continuing authority to reorganize the Office of the President. WHEREFORE, premises considered, the petition IS hereby DISMISSED. SO ORDERED. G.R. No. 122846 January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners, vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent. DECISION Tinga, J.: With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality. In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition. This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission,

Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila" (the Ordinance). I. The facts are as follows: On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The Ordinance is reproduced in full, hereunder: SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the best interest, health and welfare, and the morality of its constituents in general and the youth in particular. SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila. SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning. SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the same offense, the business license of the guilty party shall automatically be cancelled. SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this measure or any portion hereof are hereby deemed repealed. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval. Enacted by the city Council of Manila at its regular session today, November 10, 1992. Approved by His Honor, the Mayor on December 3, 1992. On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary

restraining order ( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours. On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components of the Anito Group of Companies which owns and operates several hotels and motels in Metro Manila.9 On December 23, 1992, the RTC granted the motion to intervene.10 The RTC also notified the Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC moved to withdraw as plaintiff.11 On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on January 14, 1993, directing the City to cease and desist from enforcing the Ordinance.13 The City filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14 On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment arguing that the Ordinance is constitutional. During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without trial as the case involved a purely legal question.16 On October 20, 1993, the RTC rendered a decision declaring the Ordinance null and void. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared null and void. Accordingly, the preliminary injunction heretofor issued is hereby made permanent. SO ORDERED.17 The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the law to the ordinance annulled in Ynot v.

Intermediate Appellate Court,19 where the legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-province ban on the transport of carabaos and carabeef. The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as a petition for certiorari and referred the petition to the Court of Appeals.21 Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local government units, the power: [To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports.22 The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section 18(kk) of the Revised Manila Charter, thus: "to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense.23 Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and oppressive interference in their business. The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the Ordinance.24 First, it held that the Ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated by law. TC, WLC and STDC come to this Court via petition for review on certiorari.25 In their petition and Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They contend that the assailed Ordinance is an invalid exercise of police power. II.

We must address the threshold issue of petitioners standing. Petitioners allege that as owners of establishments offering "wash-up" rates, their business is being unlawfully interfered with by the Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite standing to plead for protection of their patrons' equal protection rights. Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. More importantly, the doctrine of standing is built on the principle of separation of powers,26 sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of government. The requirement of standing is a core component of the judicial system derived directly from the Constitution.27 The constitutional component of standing doctrine incorporates concepts which concededly are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and personal interest" presents the most obvious cause, as well as the standard test for a petitioner's standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.30 Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental importance.31 For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise injured by the Ordinance. They rely on the patronage of their customers for their continued viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties Union in the United States may also be construed as a hindrance for customers to bring suit.34 American jurisprudence is replete with examples where parties-in-interest were allowed standing to advocate or invoke the fundamental due process or equal protection claims of other persons or classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held that physicians had standing to challenge a reproductive health statute that would penalize them as accessories as well as to plead the constitutional protections available to their patients. The Court held that:

"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them."36 An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18. The United States High Court explained that the vendors had standing "by acting as advocates of the rights of third parties who seek access to their market or function."38 Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers to government action are in effect permitted to raise the rights of third parties. Generally applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly restrains even constitutionally guaranteed rights.39 In this case, the petitioners claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the allegations in the petition, the Ordinance suffers from overbreadth. We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to patronize their establishments for a "wash-rate" time frame. III. To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila.40 Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens. The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it

must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41 The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. A. Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant.42 Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.43 Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use has rarely been denied. The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his cynicism. Even as we design the precedents that establish the framework for analysis of due process or equal protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of government as they exercise their political functions. But when we are compelled to nullify executive or legislative actions, yet another form of caution emerges. If the Court were animated by the same passing fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by any perception that the judiciary is merely the third political branch of government. We derive our respect and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law, and there is no surer way to that end than through the development of rigorous and sophisticated legal standards through which the courts analyze the most fundamental and far-reaching constitutional questions of the day. B. The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition.48 The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and

property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.49 Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing. If due process were confined solely to its procedural aspects, there would arise absurd situation of arbitrary government action, provided the proper formalities are followed. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.50 The question of substantive due process, moreso than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application. C. The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a "fundamental right."52 Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation. A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender53 and legitimacy.54 Immediate scrutiny was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well. We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest.58 Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered.59

Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest. In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.61 The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate travel.64 If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. Viewed cynically, one might say that the infringed rights of these customers were are trivial since they seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively exercise any day without the impairing awareness of their constitutional consequence that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother presence as they interact with each other, their society and nature, in a manner innately understood by them as inherent, without doing harm or injury to others. D. The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus: Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[66]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of "liberty." It said: While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.67 [Citations omitted] It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments "have gained notoriety as venue of prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes: The concept of liberty compels respect for the individual whose claim to privacy and interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated: Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a master of himself is in any real sense free. Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen.70 We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other

than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative. E. That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.72 Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.73 However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity.74 Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition. The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to Manila. The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the

Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. IV. We reiterate that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However wellintentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect.77 The notion that the promotion of public morality is a function of the State is as old as Aristotle.78 The advancement of moral relativism as a school of philosophy does not delegitimize the role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different interests.79 To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented. Yet the continuing progression of the human story has seen not only the acceptance of the rightwrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest. Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, and because they are entrusted by the people to uphold the law.81 Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the

government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs. SO ORDERED. G.R. No. 163087 February 20, 2006

SILAHIS INTERNATIONAL HOTEL, INC. and JOSE MARCEL PANLILIO, Petitioners, vs. ROGELIO S. SOLUTA, JOSELITO SANTOS, EDNA BERNATE, VICENTA DELOLA, FLORENTINO MATILLA, and GLOWHRAIN-SILAHIS UNION CHAPTER, Respondents. DECISION CARPIO MORALES, J.: The present Petition for Review on Certiorari partially assails the Court of Appeals Decision1 of March 26, 2004 holding herein petitioners Silahis International Hotel, Inc. and Jose Marcel Panlilio, along with Floro Maniego and Steve Villanueva, civilly liable for damages under Article 32 of the Civil Code, for violation of respondents constitutional right against unreasonable search of their office. Petitioner Jose Marcel Panlilio (Panlilio) was the Vice President for Finance of his co-petitioner Silahis International Hotel, Inc. (hotel), while respondents Rogelio Soluta (Soluta), Joselito Santos, Edna Bernate (Edna), Vicenta Delola (Vicenta), and Florentino Matilla (Matilla) were employees of the hotel and officers of the Glowhrain-Silahis Union Chapter, the hotel employees union (the union). Petitioners version of the antecedents of the case are as follows: In late 1987, as Coronel Floro Maniego (Maniego), General Manager of the Rapier Enforcement Professional Investigation and Security Agency, Inc. (REPISA) which the hotel contracted to provide its security force, had been receiving reports that sale and/or use of marijuana, dollar smuggling, and prostitution were going on in the union office at the hotel and that there existed a theft syndicate, he conducted a surveillance, with the approval of Panlilio, of suspected members and officers of the union.2 In the morning of January 11, 1988, Panlilio, his personal secretary Andy Dizon, Maniego, Bulletin reporter Nonoy Rosales, and REPISA security guard Steve Villanueva (Villanueva)

entered the union office located at the hotel basement, with the permission of union officer Henry Babay (Babay) who was apprised about the suspected illegal activities, and searched the premises in the course of which Villanueva found a plastic bag under a table. When opened, the plastic bag yielded dry leaves of marijuana.3 Panlilio thereupon ordered Maniego to investigate and report the matter to the authorities. On the other hand, respondents version follows: On January 10, 1988, Loida Somacera (Loida), a laundrywoman of the hotel, stayed overnight at the female locker room at the basement of the hotel. At dawn of January 11, 1988, she heard pounding sounds outside, prompting her to open the door of the locker room upon which she saw five men in barong tagalog whom she failed to recognize but she was sure were not employees of the hotel,4 forcibly opening the door of the union office.5 She even saw one of the men hid something behind his back. She then closed the door and went back to bed. Soon after she heard the door of the union office opened. In the morning of January 11, 1988, as union officer Soluta was trying in vain to open the door of the union office, Loida narrated to him what she had witnessed at dawn. Soluta thus immediately lodged a complaint before the Security Officer. And he fetched a locksmith, Efren Guevarra, who tried to assist him, Edna, Arnold Ilustrisimo and Ed Bautista open the door. At that instant, men in barong tagalog armed with clubs arrived and started hitting Soluta and his companions, drawing them to run to the female locker room, and to thereafter proceed to the Engineering Office where they called for police assistance.6 While awaiting the arrival of the police, Babay and Panlilio, on the latters request, met. At the meeting, Panlilio told Babay that they proceed to the union office where they would settle the mauling incident, to which Babay replied that the door of the office could not be opened. Panlilio thereupon instructed Villanueva to force open the door, and the latter did. Once inside, Panlilio and his companions began searching the office, over the objection of Babay who even asked them if they had a search warrant.7 A plastic bag was found containing marijuana flowering tops. As a result of the discovery of the presence of marijuana in the union office and after the police conducted an investigation of the incident, a complaint against the 13 union officers,8 namely: Babay, Isaac Asuncion, Jr., Soluta, Teodoro Gimpayan, Vicenta, Edna, Arnulfo Ilustrisimo, Irene Velarde, Joselito Santos, Renato Lina, Avelino Meneses, Matilla, and Norman Agtani9 was filed before the Fiscals Office of Manila, for violation of Republic Act (R.A.) No. 6425, as amended by Batas Pambansa Bilang 179 (The Dangerous Drugs Act). An Information10 indicting the union officers was subsequently filed by the Fiscals Office before the Regional Trial Court (RTC) of Manila. After trial, Branch 5 of the RTC acquitted the accused. The trial court disposed: WHEREFORE, with the specimen and/or the marijuana flowering tops allegedly found inside the Union Office occupied by the accused not admissible in evidence, coupled by the suspicious

circumstance of confiscation, for lack of sufficient evidence, accused Henry Babay, Isaac Asuncion, Jr., Rogelio Soluta, Teodoro F. Gimpayan, Vicente Delola, Edna Bernate, Arnulfo Ilustrisimo, Irene Velarde, Joselito Santos, Avelino Meneses, Florentino Matilla and Norman Agtani, are ACQUITTED of the charge. The bonds they put up for their provisional liberty are cancelled. The Branch Clerk is directed to turn over the custody of the seized plastic bag containing flowering tops of marijuana to the NBI Director as Permanent Custodian of the seized Dangerous Drugs. SO ORDERED.11 (Emphasis and underscoring supplied) Soluta and his fellow union officers, together with the union, thereafter filed before the Manila RTC a Complaint12 against petitioners et al. including prosecuting Fiscal Jose Bautista and Atty. Eduardo Tutaan who assisted in the prosecution of the case against them, for malicious prosecution and violation of their constitutional right against illegal search. After trial, Branch 55 of the Manila RTC, by Decision13 dated June 2, 1994, held the hotel, Panlilio, Maniego and Villanueva jointly and severally liable for damages as a result of malicious prosecution and illegal search of the union office. The dispositive portion of the trial courts decision reads: WHEREFORE, premises considered, judgment is hereby rendered ordering the defendants Silahis International Hotel, Inc., Jose Marcel Panlilio, Floro Maniego and Steve Villanueva, individually and collectively, jointly and severally, to pay to: 1. Plaintiffs Union, Rogelio S. Soluta, Joselito Santos, Florentino Matilla, Vicenta Delola and Edna Bernate-Dacanay, jointly, the sum of P70,900.00 as actual damages, and the further sum of P1,000.00 each for the same plaintiffs, except the Union, in the same concept and nature. 2. Plaintiffs Rogelio Soluta, Joselito Santos, Florentino Matilla, Vicenta Delola and Edna Bernate-Dacanay the sum of P100,000.00 each for moral damages. 3. Plaintiffs Joselito Santos, Florentino Matilla, Vicenta Delola and Edna-BernateDacanay the sum of P30,000.00 each as exemplary damages. 4. To all the plaintiffs, jointly and severally, the sum of P30,000.00 for and as attorneys fees. The complaint, insofar as plaintiff Erlisa Ilustrisimo and defendants Ramos, Bautista and Tutaan are concerned, is DISMISSED for lack of merit. All the counterclaims of the defendants are likewise dismissed for lack of factual and legal basis. Costs against the remaining defendants.

SO ORDERED.14 (Emphasis and underscoring supplied) On appeal, the Court of Appeals affirmed with modification the trial courts decision. It found herein petitioners et al. civilly liable for damages for violation of individual respondents constitutional right against illegal search, not for malicious prosecution, set aside the award of actual damages to respondent union, and reduced the award of actual damages to individual respondents to P50,000. The dispositive portion of the appellate courts decision reads: WHEREFORE, the Decision of the Regional Trial Court of Manila, Branch 55, is hereby AFFIRMED with the modification that the first paragraph of the dispositive portion should read: "1. Plaintiffs Rogelio Soluta, Joselito Santos, Florentino Matilla, Vicenta Delola and Edna Bernate-Dacanay, jointly, the sum of P50,000.00 as actual damages, and the further sum of P1,000.00 each for the same plaintiffs in the same concept and nature." The Decision is hereby AFFIRMED in all other respects. SO ORDERED.15 Hence, the present petition of Panlilio and the hotel, they contending that: THE COURT OF APPEALS GRAVELY ERRED IN ITS CONCLUSION THAT PETITIONERS ARE LIABLE FOR DAMAGES UNDER ARTICLE 32 OF THE CIVIL CODE IN THAT: 1. THE COURT OF APPEALS APPLICATION OF PEOPLE V. ARUTA (288 SCRA 626[1998]) AND SECTION 13, RULE 126 OF THE RULES OF CRIMINAL PROCEDURE IN THE INSTANT CASE IS LEGALLY FLAWED. 2. PETITIONERS SEARCH OF THE UNION OFFICE IN THE INSTANT CASE WAS ENTIRELY REASONABLE UNDER THE CIRCUMSTANCES. 16 While petitioners concede that the appellate court correctly cited the principles enunciated in People v. Aruta17 and Section 13, Rule 12618 of the Rules of Criminal Procedure, it gravely erred when it applied Aruta to justify petitioners alleged liability under Article 32 of the New Civil Code. They argue that Aruta does not involve Article 32 as nowhere in the decision is there any reference to Article 32.19 Similarly, petitioners argue that being private persons, they are not covered by the standards set forth in Aruta as the constitutional protection against illegal searches and seizures is not meant to be invoked against private individuals.20 Petitioners further argue that the search of the union office was reasonable under the circumstances,21 given that the hotel owns the room where the union holds office; the search was not without probable cause as it was conducted precisely due to reports received by petitioners that the union office was being used as a venue for illegal activities, particularly the sale and/or

use of prohibited drugs;22 and the search was conducted with the consent and in the presence of union officer Babay.23 The petition fails. Article 32 of the New Civil Code provides: ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (9) The right to be secure in ones person, house, papers, and effects against unreasonable searches and seizures; xxxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. (Emphasis and underscoring supplied) As constitutional rights, like the right to be secure in ones person, house, papers, and effects against unreasonable search and seizures, occupy a lofty position in every civilized and democratic community and not infrequently susceptible to abuse, their violation, whether constituting a penal offense or not, must be guarded against. As the Code Commission noted, xxxx (3) Direct and open violations of the Penal Code trampling upon the freedoms named are not so frequent as those subtle, clever and indirect ways which do not come within the pale of the penal law. It is in these cunning devices of suppressing or curtailing freedom, which are not criminally punishable, where the greatest danger to democracy lies. The injured citizen will always have, under the new Civil Code, adequate civil remedies before the courts because of the independent civil action, even in those instances where the act or omission complained of does not constitute a criminal offense.24 The Code Commission thus deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of rights enumerated in Article 32 of the Civil Code. That is why it is not even necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights.25 It suffices that there is a violation of the constitutional right of the plaintiff. In the present case, as priorly stated, petitioners had, by their own claim, already received reports in late 1987 of illegal activities allegedly undertaken in the union office and Maniego conducted surveillance of the union officers. Yet, in the morning of January 11, 1988, petitioners and their

companions barged into and searched the union office without a search warrant, despite ample time for them to obtain one, and notwithstanding the objection of Babay. The course taken by petitioners and company stinks in illegality, it not falling under any of the exceptional instances when a warrantless search is allowed by law. Petitioners violation of individual respondents constitutional right against unreasonable search thus furnishes the basis for the award of damages under Article 32 of the Civil Code. In MHP Garments, Inc. v. Court of Appeals,26 a case for unfair competition, the progression of time between the receipt of the information and the raid of the stores of the therein private respondents premises showed that there was sufficient time for the therein petitioners and the raiding party to apply for a judicial warrant. Yet they did not apply for one. They went on with the raid and seized the goods of the therein private Respondents. Under the circumstances, this court upheld the grant of damages by the trial court to the therein private respondents for violation of their right against unreasonable search and seizure. As for petitioners contention that property rights justified the search of the union office, the same does not lie. For respondents, being the lawful occupants of the office, had the right to raise the question of validity of the search and seizure.27 Neither does petitioners claim that they were allowed by union officer Babay to enter the union office lie. Babays account of why petitioners and company went to the union office to consider Panlilios suggestion to settle the mauling incident is more credible, as is his claim that he protested the search, and even asked if they were armed with a search warrant. While it is doctrinal that the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly, a waiver by implication cannot be presumed. There must be clear and convincing evidence of an actual intention to relinquish it to constitute a waiver thereof.28 There must be proof of the following: (a) that the right exists; (b) that the person involved had knowledge, either actual or constructive, of the existence of such right; and, (c) that the said person had an actual intention to relinquish the right. In other words, the waiver must be voluntarily, knowingly and intelligently made. The evidence shows otherwise, however. That a violation of ones constitutional right against illegal search and seizure can be the basis for the recovery of damages under Article 32 in relation to Article 2219(6) and (10) of the New Civil Code, there is no doubt. Since the complaint29 filed before the trial court was for damages due to malicious prosecution and violation of constitutional right against illegal search and seizure, the award by the trial court of actual damages to respondent union was correctly set aside by the appellate court. Article 32 speaks of an officer or employee or person "directly or indirectly" responsible for the violation of the constitutional rights and liberties of another. Hence, it is not the actor alone who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.30 Such being the case, petitioners, together with Maniego and Villanueva, the ones who orchestrated the illegal search, are jointly and severally liable for actual, moral and exemplary damages to herein individual respondents in

accordance with the earlier-quoted pertinent provision of Article 32, in relation to Article 2219(6) and (10) of the Civil Code which provides: Art. 2219. Moral damages may be recovered in the following and analogous cases: xxxx (6) Illegal search; xxxx (10) Acts and action referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. (Emphasis supplied) Petitioners magnify the citation by the appellate court of Aruta allegedly "to justify [their] liability" under Article 32 of the Civil Code, which petitioners allege is erroneous as said case did not involve Article 32. Aruta was, however, cited by the appellate court, not to justify petitioners liability but to rule out the legality of the search in the union office as the search was not done as an incident of a lawful arrest. Petitioners cite People v. Marti31 to support their thesis that the determinants in the validity of the constitutional right against searches and seizure cannot be invoked against private individuals. But the ruling of this Court in Marti, a criminal case, bears on the issue of whether "an act of a private individual, allegedly in violation of [ones] constitutional rights, [may] be invoked against the State." In other words, the issue in that case was whether the evidence obtained by a private person, acting in a private capacity without the participation of the State, is admissible. The issue in the present civil case, however, is whether respondent individual can recover damages for violation of constitutional rights. As reflected above, Article 32, in relation to Article 2219(6) and (10) of the Civil Code, allows so. WHEREFORE, in light of the foregoing ratiocinations, the petition is DENIED. Costs against petitioners. SO ORDERED.

G.R. No. L-14078

March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs, vs. THE PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams & Filemon Sotto for plaintiff. Office of the Solicitor-General Paredes for defendant. MALCOLM, J.: In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws, the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION. This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation. The return of the Solicitor-General alleges: 1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: "Whereas several attempts and schemes have been made for the advancement of the non-Christian people of Mindoro, which were all a failure, "Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent settlement, "Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. "Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor." 2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917. 3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says: "Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on February 21, 1917. "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section 2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. 5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711. 6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711. It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide. Section 2145 of the Administrative Code of 1917 reads as follows: SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board. In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows: SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any nonChristian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment for a period not exceeding sixty days. The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "non-Christians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES. The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language. LAW I. The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20, 1578, THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES). In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized that convenience of this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the

encomederos shall entreat compliance thereof in the manner and form prescribed by the laws of this title. xxx xxx xxx

LAW VIII. Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW. The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. LAW IX. Philip II at Toledo, on February 19, 1956. THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may cultivate them and profit therefrom. xxx xxx xxx

LAW XIII. THE SAME AS ABOVE. THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that en. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The

penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law. LAW XV. Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS." We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI. Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES. We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reducciones and towns and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which living in the obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws. It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the, metropolis. It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving and customs of isolation. As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task. For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. 2. The diverse rules which should be promulgated for each of these races which may be divided into three classes; one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. 3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. 4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the sound of the bell. 5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christian, the organization and service of which shall be determined in a regulations based upon that of the abolished Tercios de Policia (division of the Guardia Civil). 6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce of any other transaction with the rebellious indios, the violation of which shall be punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient. 8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact along be exempt for eight years from rendering personal labor. 9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the following advantages in returns for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most productive; support during a year, and clothes upon effecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authorities of the province or district. 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivations, and provided further the putting of families in a place so selected by them be authorized in the towns already constituted. 11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same. 12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. 14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultations by the chiefs of provinces and priests and missionaries. 15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due compliance with this decree, shall be promulgated by the respective official centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES. Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law. The first order of an organic character after the inauguration of the American Government in the Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This transferred the exclusive

legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22). Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which Moros or other nonChristian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. 2. Statute law. Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 an d1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547: No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO. By authority of the United States, be it enacted by the Philippine Commission, that: SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers

and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eightyseven entitled "An Act providing for the establishment of local civil Governments in the townships and settlements of Nueva Vizcaya." SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days. SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, an to the end that law and order and individual freedom shall be maintained. SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twentysixth, nineteen hundred. SEC. 6. This Act shall take effect on its passage. Enacted, December 4, 1902. All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in questions. These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement. C. TERMINOLOGY. The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission, establishing a Bureau of nonChristian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551. "Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN." If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last Administrative Code and certain well-known authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other nonChristian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine

Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.) If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.) The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material property prosperity." As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language: . . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-Christians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows: Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered Christian or non-Christians. It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'nonChristians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced Christianity. The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act. (Internal Revenue Manual, p. 214.) The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject: As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for the hold that it is indicative of

religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom. Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) JNO. S. HORD, Collector of Internal Revenue. On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming members of the body politic of the

Philippine Islands, the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula tax law is concerned . . . Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself civilized community, belonging a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to pay the tax for former years. In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christina tribes. Very respectfully, (Sgd.) ELLIS CROMWELL, Collector of Internal Revenue, Approved: (Sgd.) GREGORIO ARANETA, Secretary of Finance and Justice. The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain nonChristian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes: In conformity with the above quoted constructions, it is probable that is probable that the person in question remains a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions place upon the law until a court shall hold otherwise. Solicitor-General Paredes in his brief in this case says: With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative code which we are studying, we submit that said phrase does not have its natural meaning which would include all non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order . . . The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intended to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is the evident intention of the law, but because to give it its lateral meaning would make the law null and unconstitutional as making distinctions base the religion of the individual. The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division

under the title non-Christian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES. The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro. Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says: In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it today, but its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the "ancients." The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, seminomadic people. They number approximately 15,000. The manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.) III. COMPARATIVE THE AMERICAN INDIANS. Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when

and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows: The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. Following the policy of the European Governments in the discovery of American towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relation are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. The opinion then continues: It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the

Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendent charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.) All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly

belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows: The reasoning advanced in support of my views, leads me to conclude: 1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. 2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore. 3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. 4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered. As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide. As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS. A. DELEGATION OF LEGISLATIVE POWER. The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility. That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not bee violated in his instance. The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of case, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board. Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such as course is deemed necessary in the interest of law and order?" As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial official and a department head. B. RELIGIOUS DISCRIMINATION The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals an account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian. The conception of civil liberty has been variously expressed thus: Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.) Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.) Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.) Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.) Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a

law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.) Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.) Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.) One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and

safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. We break off with the foregoing statement, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE. The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if section 2145 is to be held valid. E. THE POLICE POWER. Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the exercise of the police power. "The police power of the State," one court has said, . . . "is a power coextensive with selfprotection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT. The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development. Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press: "It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary servitude by those who may want to abuse them." The Secretary of the Interior, who is the official charged with the supervision of all the nonChristian people, has adopted as the polaris of his administration "the advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: (a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. (b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. (c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control. (d) Construction of roads and trials between one place and another among non-Christians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. (e) Pursuance of the development of natural economic resources, especially agriculture.

( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu. The Secretary adds: To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.) The fundamental objective of governmental policy is to establish friendly relations with the socalled non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same

class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior: Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let along in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus left in a permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the ability of the nation to deal with our backward brothers. The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that they object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done from them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrants, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives of the government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provinced for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught. G. APPLICATION AND CONCLUSION. Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is called to the attention of the courts, it would seems that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose. The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the necessities of the class

attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy. Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there exists a law ; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called nonChristians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional. Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur. G.R. No. 141463 August 6, 2002

VICTOR ORQUIOLA and HONORATA ORQUIOLA, petitioners, vs. HON. COURT OF APPEALS, HON. VIVENCIO S. BACLIG, Presiding Judge, Regional Trial Court, Branch 77, Quezon City, THE SHERIFF OF QUEZON CITY and HIS/HER DEPUTIES and PURA KALAW LEDESMA, substituted by TANDANG SORA DEVELOPMENT CORPORATION, respondents. QUISUMBING, J.: This petition for review seeks the reversal of the decision1 of the Court of Appeals dated January 28, 1999 in CA-G.R. SP No. 47422, which dismissed the petition to prohibit Judge Vivencio Baclig of the Regional Trial Court of Quezon City, Branch 77, from issuing a writ of demolition against petitioners, and the sheriff and deputy sheriff of the same court from implementing an alias writ of execution. Also assailed is the resolution2 of the Court of Appeals dated December 29, 1999 which denied petitioners motion for reconsideration. The facts are as follows:

Pura Kalaw Ledesma was the registered owner of Lot 689, covered by TCT Nos. 111267 and 111266, in Tandang Sora, Quezon City. This parcel of land was adjacent to certain portions of Lot 707 of the Piedad Estates, namely, Lot 707-A and 707-B, registered in the name of Herminigilda Pedro under TCT Nos. 16951 and 16952, respectively. On October 29, 1964, Herminigilda sold Lot 707-A and 707-B to Mariano Lising who then registered both lots and Lot 707-C in the name of M.B. Lising Realty and subdivided them into smaller lots.1wphi1.nt Certain portions of the subdivided lots were sold to third persons including herein petitioners, spouses Victor and Honorata Orquiola, who purchased a portion of Lot 707-A-2, Lot 5, Block 1 of the subdivision plan (LRC), Psd-42965. The parcel is now #33 Doa Regina St., Regina Village, Tandang Sora, Quezon City. The other portions were registered in the name of the heirs of Pedro, heirs of Lising, and other third persons. Sometime in 1969, Pura Kalaw Ledesma filed a complaint, docketed as Civil Case No. Q-12918, with the Regional Trial Court of Quezon City against Herminigilda Pedro and Mariano Lising for allegedly encroaching upon Lot 689. During the pendency of the action, Tandang Sora Development Corporation replaced Pura Kalaw Ledesma as plaintiff by virtue of an assignment of Lot 689 made by Ledesma in favor of said corporation. Trial continued for three decades. On August 21, 1991, the trial court finally adjudged defendants Pedro and Lising jointly and severally liable for encroaching on plaintiffs land and ordered them: (a) to solidarily pay the plaintiff Tandang Sora Dev. Corp. actual damages in the amount of P20,000 with interest from date of filing of the complaint; (b) to remove all construction, including barbed wires and fences, illegally constructed by defendants on plaintiffs property at defendants expense; (c) to replace the removed concrete monuments removed by defendants, at their own expense; (d) to pay attorneys fees in the amount of FIVE THOUSAND PESOS (P5,000.00) with interest computed from the date of filing of the complaint; (e) to relocate the boundaries to conform with the Commissioners Report, particularly, Annexes "A" and "B" thereof, at the expense of the defendants.3 As a result, in February 1998, the Deputy Sheriff of Quezon City directed petitioners, through an alias writ of execution, to remove the house they constructed on the land they were occupying. On April 2, 1998, petitioners received a Special Order dated March 30, 1998, from the trial court stating as follows: Before the Court for resolution is the "Ex-Parte Motion For The Issuance of A Writ of Demolition," filed by plaintiff, through counsel, praying for the issuance of an Order directing the Deputy Sheriff to cause the removal and/or demolition of the structures on

the plaintiffs property constructed by defendants and/or the present occupants. The defendants-heirs of Herminigilda Pedro filed their comment on the said Motion. Considering that the decision rendered in the instant case had become final and executory, the Court, in its Order of November 14, 1997, directed the issuance of an alias writ of execution for the enforcement of the said decision. However, despite the service of the said writ to all the defendants and the present occupants of the subject property, they failed to comply therewith, as per the Partial Sheriffs Return, dated February 9, 1998, issued by the Deputy Sheriff of this branch of the Court. Thus, there is now a need to demolish the structures in order to implement the said decision. WHEREFORE, the defendants are hereby directed to remove, at their expense, all constructions, including barbed wires and fences, which defendants constructed on plaintiffs property, within fifteen (15) days from notice of this Order; otherwise, this Court will issue a writ of demolition against them. SO ORDERED.4 To prohibit Judge Vivencio Baclig of the Regional Trial Court of Quezon City from issuing a writ of demolition and the Quezon City sheriff from implementing the alias writ of execution, petitioners filed with the Court of Appeals a petition for prohibition with prayer for a restraining order and preliminary injunction on April 17, 1998.5 Petitioners alleged that they bought the subject parcel of land in good faith and for value, hence, they were parties in interest. Since they were not impleaded in Civil Case No. Q-12918, the writ of demolition issued in connection therewith cannot be enforced against them because to do so would amount to deprivation of property without due process of law. The Court of Appeals dismissed the petition on January 28, 1999. It held that as buyers and successors-in-interest of Mariano Lising, petitioners were considered privies who derived their rights from Lising by virtue of the sale and could be reached by the execution order in Civil Case No. Q-12918. Thus, for lack of merit, the petition was ordered dismissed.6 Petitioners motion for reconsideration was denied. Hence, this petition, where petitioners aver that: I. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION IN CIVIL CASE NO. Q-12918 CAN ALSO BE ENFORCED AGAINST THE PETITIONERS EVEN IF THEY WERE NOT IMPLEADED AS PARTIES THERETO. II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING PETITIONERS TITLE DESPITE THEIR BEING BUILDER IN GOOD FAITH AND INNOCENT PURCHASER AND FOR VALUE. III. PETITIONERS ARE ENTITLED TO INJUNCTIVE RELIEF CONSIDERING THAT THEY STAND TO SUFFER GRAVE AND IRREPARABLE INJURY IF ALIAS WRIT OF EXECUTION AND THE SPECIAL ORDER ISSUED BY THE COURT A QUO IN CIVIL CASE NO. Q-12918 FOR THE DEMOLITION OF ALL THE STRUCTURES ON THE DISPUTED PROPERTY WERE ENFORCED AGAINST THE PETITIONERS WHO WERE NOT EVEN GIVEN THEIR DAY IN COURT. 7 For our resolution are the following issues: (1) whether the alias writ of execution may be enforced against petitioners; and (2) whether petitioners were innocent purchasers for value and builders in good faith. On the first issue, petitioners claim that the alias writ of execution cannot be enforced against them. They argue that the appellate court erred when it relied heavily on our ruling in Vda. de Medina vs. Cruz8 in holding that petitioners are successors-in-interest of Mariano Lising, and as such, they can be reached by the order of execution in Civil Case No. Q-12918 even though they were not impleaded as parties thereto. Petitioners submit that Medina is not applicable in this case because the circumstances therein are different from the circumstances in the present case. In Medina, the property in dispute was registered under Land Registration Act No. 496 in 1916 and Original Certificate of Title No. 868 was issued in the name of Philippine Realty Corporation (PRC). In 1949, Benedicta Mangahas and Francisco Ramos occupied and built houses on the lot without the PRCs consent. In 1959, PRC sold the lot to Remedios Magbanua. Mangahas and Ramos opposed and instituted Civil Case No. C-120 to annul the sale and to compel PRC to execute a contract of sale in their favor. The trial court dismissed the complaint and ordered Mangahas and Ramos to vacate the lot and surrender possession thereof to Magbanua. The judgment became final and executory. When Magbanua had paid for the land in full, PRC executed a deed of absolute sale in her favor and a new title was consequently issued in her name. Magbanua then sought the execution of the judgment in Civil Case No. C-120. This was opposed by petitioner Medina who alleged that she owned the houses and lot subject of the dispute. She said that she bought the houses from spouses Ricardo and Eufrocinia de Guzman, while she purchased the lot from the heirs of the late Don Mariano San Pedro y Esteban. The latter held the land by virtue of a Titulo de Composicion Con El Estado Num. 4136, dated April 29, 1894. In opposing the execution, Medina argued that the trial court did not acquire jurisdiction over her, claiming that she was not a party in Civil Case No. C-120, thus, she could not be considered as "a person claiming under" Ramos and Mangahas. When Medina reached this Court, we held that the decision in Civil Case No. C-120, which had long become final and executory, could be enforced against petitioner even though she was not a party thereto. We found that the houses on the subject lot were formerly owned by Mangahas and Ramos who sold them to spouses de Guzman, who in turn sold them to Medina. Under the

circumstances, petitioner was privy to the two judgment debtors Mangahas and Ramos, and thus Medina could be reached by the order of execution and writ of demolition issued against the two. As to the lot under dispute, we sustained Magbanuas ownership over it, she being the holder of a Torrens title. We declared that a Torrens title is generally conclusive evidence of ownership of the land referred to therein, and a strong presumption exists that a Torrens title was regularly issued and valid. A Torrens title is incontrovertible against any informacion possessoria, or other title existing prior to the issuance thereof not annotated on the Torrens title. Moreover, persons dealing with property covered by a Torrens certificate of title are not required to go beyond what appears on its face. Medina markedly differs from the present case on major points. First, the petitioner in Medina acquired the right over the houses and lot subject of the dispute after the original action was commenced and became final and executory. In the present case, petitioners acquired the lot before the commencement of Civil Case No. Q-12918. Second, the right over the disputed land of the predecessors-in-interest of the petitioner in Medina was based on a title of doubtful authenticity, allegedly a Titulo de Composicion Con El Estado issued by the Spanish Government in favor of one Don Mariano San Pedro y Esteban, while the right over the land of the predecessors-in-interest of herein petitioners is based on a fully recognized Torrens title. Third, petitioners in this case acquired the registered title in their own names, while the petitioner in Medina merely relied on the title of her predecessor-in-interest and tax declarations to prove her alleged ownership of the land. We must stress that where a case like the present one involves a sale of a parcel of land under the Torrens system, the applicable rule is that a person dealing with the registered property need not go beyond the certificate of title; he can rely solely on the title and he is charged with notice only of such burdens and claims as are annotated on the title.9 It is our view here that the petitioners, spouses Victor and Honorata Orquiola, are fully entitled to the legal protection of their lot by the Torrens system, unlike the petitioner in the Medina case who merely relied on a mere Titulo de Composicion. Coming now to the second issue, were petitioners purchasers in good faith and for value? A buyer in good faith is one who buys the property of another without notice that some other person has a right to or interest in such property. He is a buyer for value if he pays a full and fair price at the time of the purchase or before he has notice of the claim or interest of some other person in the property.10 The determination of whether one is a buyer in good faith is a factual issue which generally is outside the province of this Court to determine in a petition for review. An exception is when the Court of Appeals failed to take into account certain relevant facts which, if properly considered, would justify a different conclusion.11 The instant case is covered by this exception to the general rule. As found by the Court of Appeals and not refuted by private respondent, petitioners purchased the subject land in 1964 from Mariano Lising.12 Civil Case No. Q-12918 was commenced sometime in 1969. The Court of Appeals overlooked the fact that the purchase of the land took place prior to the institution of Civil Case No. Q-12918. In other words, the sale to petitioners was made before Pura Kalaw Ledesma claimed the lot. Petitioners could reasonably rely on Mariano Lisings Certificate of Title which at the time of purchase was still free from any third party claim. Hence, considering the circumstances of this case, we conclude that petitioners acquired the land subject of this dispute in good faith and for value.

The final question now is: could we consider petitioners builders in good faith? We note that this is the first time that petitioners have raised this issue. As a general rule, this could not be done. Fair play, justice, and due process dictate that parties should not raise for the first time on appeal issues that they could have raised but never did during trial and even during proceedings before the Court of Appeals.13 Nevertheless, we deem it proper that this issue be resolved now, to avoid circuitous litigation and further delay in the disposition of this case. On this score, we find that petitioners are indeed builders in good faith. A builder in good faith is one who builds with the belief that the land he is building on is his, and is ignorant of any defect or flaw in his title.14 As earlier discussed, petitioner spouses acquired the land in question without knowledge of any defect in the title of Mariano Lising. Shortly afterwards, they built their conjugal home on said land. It was only in 1998, when the sheriff of Quezon City tried to execute the judgment in Civil Case No. Q-12918, that they had notice of private respondents adverse claim. The institution of Civil Case No. Q-12918 cannot serve as notice of such adverse claim to petitioners since they were not impleaded therein as parties. As builders in good faith and innocent purchasers for value, petitioners have rights over the subject property and hence they are proper parties in interest in any case thereon.15 Consequently, private respondents should have impleaded them in Civil Case No. Q-12918. Since they failed to do so, petitioners cannot be reached by the decision in said case. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution and demolition issued pursuant thereto.16 In our view, the spouses Victor and Honorata Orquiola have valid and meritorious cause to resist the demolition of their house on their own titled lot, which is tantamount to a deprivation of property without due process of law.1wphi1.nt WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated January 28, 1999, and its resolution dated December 29, 1999, in CA-G.R. SP No. 47422, are REVERSED and SET ASIDE. Respondents are hereby enjoined from enforcing the decision in Civil Case No. Q-12918 through a writ of execution and order of demolition issued against petitioners. Costs against private respondent. SO ORDERED. Bellosillo, Mendoza, and Corona, JJ., concur. G.R. No. 170787 September 12, 2012


BALATBAT, PIO ROMULO N. BALATBAT and JUNIOPERO PEDRO N. BALATBAT, Respondents. DECISION PERALTA, J.: This is a petition for review on certiorari1 of the Court of Appeals Decision2 dated May 30, 2005 in CA-G.R. SP No. 85017, and its Resolution3 dated December 2, 2005, denying petitioners motion for reconsideration. The Court of Appeals reversed and set aside the Decision dated February 2, 2004 of the Department of Agrarian Reform Adjudication Board (DARAB), which affirmed the decision dated October 12, 1998 of the Provincial Agrarian Reform Adjudicator (PARAD) of San Fernando, Pampanga, dismissing respondents' complaint for the annulment of the emancipation patent issued in favor of respondents tenant, petitioner Crispino Pangilinan, which emancipation patent covered a portion of the land sought to be retained by respondents. The facts, as stated by the Court of Appeals, are as follows: Respondent spouses Jocelyn N. Balatbat and Vicente A. Balatbat were found by the PARAD to have landholdings totaling 25.2548 hectares, which consisted of 9.8683 hectares of riceland and 15.3864 hectares of sugarland. The 9.8683 hectares of riceland was covered by land reform. Out of the 25.2548 hectares of land owned by respondents, 18.2479 hectares or 182,479 square meters4 thereof was under Original Certificate of Title (OCT) No. 6009. Municipal Agrarian Reform Officer Victorino D. Guevarra found that in OCT No. 6009, 8.6402 hectares or 86,402 square meters was riceland covered by Presidential Decree (P.D.) No. 27 and Executive Order (E.O.) No. 228, while 96,077 square meters was sugarland.5 The 96,077 square meters of sugarland was subdivided by respondents as follows: Title No. 181462 -- 64,540 square meters Title No. 181464 -- 8,904 square meters Title No. 181469 -- 22,633 square meters Total 96,077 square meters Title Nos. 181464 and 181469, representing Lots 21-0 and 21-1, were utilized by respondents in a subdivision/condominium project particularly called Carolina Village II, located at San Juan, Sta. Ana, Pampanga, while Title No. 181462, representing Lot 21-B, was subdivided among the children of respondents. The exact area of riceland respondents applied for retention is 8.3749 hectares, which is covered by TCT No. 181466-R, TCT No. 181465-R, TCT No. 181463-R, and TCT No. 181461-R.6

Although 8.6402 hectares was subjected to the Operation Land Transfer Program under P.D. No. 27,7 as amended by Letter of Instruction (LOI) No. 474, this case involves only 2.9941 hectares or 29,941 square meters thereof, covered under TCT No. 181466-R,8 and identified as Lot 21-F of the subdivision plan Psd-03-005059, being a portion of Lot 21 Sta. Ana Cadastre, situated in the Barrio of San Juan, Municipality of Sta. Ana, Province of Pampanga. The said Lot 21-F, with an area of 29,941 square meters, was transferred to petitioner as evidenced by TCT No. 25866,9 which was registered in the Register of Deeds for the Province of Pampanga on May 30, 1997, pursuant to Emancipation Patent No. 00728063 issued by the DAR on April 18, 1997.10 Hence, respondents sought to cancel the said emancipation patent on the ground that they applied to retain the land covered by it. Respondents first filed an Application for Retention11 of their landholdings under P.D. No. 27 on December 24, 1975. However, it was not acted upon. In May 1996, respondents received a letter from Municipal Agrarian Reform Officer Victorino Guevarra informing respondents of a conference for the determination of the value of their landholdings and the final survey of the land preparatory to the issuance of emancipation patents. Respondents alleged that on September 16, 1996, they received a Notice of Coverage on OCT No. 6009 under R.A. No. 6657, and on October 28, 1996, they received a final notification to landowner, which notices were all issued by Municipal Agrarian Reform Officer Victorino Guevarra. In a letter12 dated September 28, 1996, respondents, by counsel, reiterated their application for retention to the Department of Agrarian Reform (DAR) Regional Director, Region III, San Fernando Pampanga, thru the Municipal Agrarian Reform Office, San Fernando, Pampanga. The DAR Regional Director referred respondents' application for retention to the Provincial Agrarian Reform Officer in San Fernando, Pampanga, which application was later endorsed to Municipal Agrarian Reform Officer Victorino Guevarra.13 After investigation and verification of the landholdings of respondents, Municipal Agrarian Reform Officer Victorino Guevarra, in a letter14 dated March 21, 1997, recommended to the DAR Provincial Office, San Fernando, Pampanga that respondents' re-application for retention be denied. On May 30, 1997, the Register of Deeds for the Province of Pampanga issued TCT No. 25866 to petitioner, pursuant to Emancipation Patent No. 0072806315 covering Lot 21-F of the subdivision plan Psd-03-005059, situated in the Barrio of San Juan, Municipality of Sta. Ana, Province of Pampanga, with an area of 29,941 square meters, which is a portion of the land sought to be retained by respondents. This prompted respondents to file on February 4, 1998 with the DAR Provincial Agrarian Reform Adjudication Board, Region III, San Fernando, Pampanga a Complaint16 for annulment of emancipation patent, ejectment and damages against petitioner Crispino Pangilinan, Municipal Land Officer Victorino D. Guevarra, and the DAR Secretary, represented by the Regional Director, Region III.

In their Complaint, respondents alleged that although Municipal Agrarian Reform Officer Victorino Guevarra knew that the land cultivated by petitioner is one of those included in their application for retention, Guevarra, acting in bad faith and without notice to them and in disregard of their rights and in collusion with petitioner, recommended for the coverage of their land under Operation Land Transfer. Thereafter, Emancipation Patent No. 00728063 and TCT No. 25866 were unlawfully issued and registered with the Register of Deeds of Pampanga on May 30, 1997. Respondents prayed for the annulment of TCT No. 25866 bearing Emancipation Patent No. 00728063, the ejectment of petitioner from the landholding in question, and for payment of moral damages, attorneys fees and litigation expenses. On October 12, 1998, the PARAD rendered a Decision17 in favor of petitioner, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered against the plaintiffs by dismissing the case for lack of merit.18 The PARAD stated that 9.8683 hectares of the 25.2548 hectares of the landholding of respondents was subjected to Operation Land Transfer. He acknowledged that respondents applied for retention in 1975 under P.D. No. 27. However, respondents were already barred in their bid for the retention area when they filed their subsequent application for retention on November 6, 1996, since the last day for the landowner to apply for his right of retention under Administrative Order No. 1 of February 27, 1985 was on August 29, 1985. Moreover, the PARAD explained that the area of retention policy under P.D. No. 27 is that a landowner can retain in naked ownership an area of not more that seven (7) hectares of rice/corn lands if the said landowner does not own an aggregate area of more than seven (7) hectares of land used for residential, commercial, industrial and other urban purposes from which the landowner derives adequate income to support himself and his family. Otherwise, such landowner is compelled to give up his rice/corn land to his tenant-tiller, and payment to him shall be undertaken by the Land Bank of the Philippines (LBP) if not directly paid by such tenanttiller. In this case, the PARAD declared that respondents "retained" the sugarland with an area of 15.2864 hectares, and 4.8836 hectares thereof was divided into a subdivision lot, while the remaining balance was subdivided among respondents and their children. Hence, the PARAD held that the area of seven hectares that can be retained under P.D. No. 27 can no longer be awarded to respondents, since they already owned an aggregate area of more than seven hectares used for residential and other urban purposes from which they derive adequate income to support themselves and their family. Moreover, the PARAD stated that petitioner has absolute ownership of the landholding as he has fully paid the amortizations to the LBP.

Respondents appealed the decision of the PARAD before the DARAB.19 On February 2, 2004, the DARAB rendered its Decision,20 the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered, the decision of the Honorable Adjudicator a quo, 'dated October 12, 1998, is hereby AFFIRMED IN TOTO.21 In support of its decision, the DARAB cited Administrative Order No. 4, Series of 1991, which provides: Subject: Supplemental Guidelines Governing the Exercise of Retention Rights by Landowners Under Presidential Decree No. 27 xxxx B. Policy Statements 1. Landowners covered by P.D. 27 are entitled to retain seven hectares, except those whose entire tenanted rice and corn lands are subject of acquisition and distribution under Operation Land Transfer (OLT). An owner of tenanted rice and corn lands may not retain these lands under the following cases: a. If he, as of 21 October 1972, owned more than 24 hectares of tenanted rice or corn lands; or b. By virtue of LOI 474, if he, as of 21 October 1976, owned less than 24 hectares of tenanted rice or corn lands but additionally owned the following: - Other agricultural lands of more than seven hectares, whether tenanted or not, whether cultivated or not, and regardless of the income derived therefrom; or - Lands used for residential, commercial, industrial, or other urban purposes, from which he derives adequate income to support himself and his family.22 In this case, the DARAB noted that respondents total landholding is 25.2548 hectares. Of the total landholding, 9.8683 hectares was riceland, which was subjected to Operation Land Transfer, while 15.3864 hectares was sugarland, which was subdivided by respondents into a 4.8836 subdivision lot to support themselves and their family. Hence, respondents are no longer entitled to retain seven hectares of the land subject to Operation Land Transfer. The DARAB also stated that as an emancipation patent has been issued to petitioner, he acquires the vested right of absolute ownership in the landholding. Respondents motion for reconsideration was denied by the DARAB in a Resolution23 dated June 11, 2004. Petitioner filed a petition for review of the decision of the DARAB before the Court of Appeals, alleging that the DARAB gravely erred in finding that (1) once an emancipation patent is issued

to a qualified beneficiary, the latter acquires a vested right of absolute ownership in the landholding that is no longer open to doubt or controversy; and (2) respondents are no longer entitled to retention, applying LOI No. 474. On May 30, 2005, the Court of Appeals rendered a Decision24 in favor of respondents, the dispositive portion of which reads: WHEREFORE, premises considered, petition for review is hereby GIVEN DUE COURSE and the assailed October 12, 1998 Decision of the Provincial Agrarian Reform Adjudication Board, Region III of San Fernando, Pampanga in DARAB Case No. 537-P'98, is hereby REVERSED AND SET ASIDE. TCT No. 25866 is hereby DECLARED VOID ab initio. The Register of Deeds is hereby DIRECTED TO CANCEL TCT No. 25866 in the name of Crispino Pangilinan in order to fully accord to petitioners BALATBAT their rights of retention under Presidential Decree No. 27 and Section 6 of R.A. No. 6657, and TO ISSUE A NEW TCT in the name of petitioners in lieu of TCT No. 25866 in order to replace TCT No. 181466-R under the name of petitioners that the Register of Deeds of Pampanga cancelled. Since land is tenanted, within a period of one (1) year from finality of this decision, the respondent tenant Crispino Pangilinan shall have the option to choose whether to remain therein or be a beneficiary in the same or another agricultural land with similar or comparable features; in case the tenant chooses to remain in the retained area, he shall be considered a leaseholder and shall lose his right to be a beneficiary under this Act; in case the tenant chooses to be a beneficiary in another agricultural land, he loses his right as a leaseholder to the land retained by the landowner.25 The Court of Appeals stated that P.D. No. 27 allows a landowner to retain not more than seven (7) hectares of his land if his aggregate landholding does not exceed twenty-four (24) hectares.26 In this case, respondents' total landholding is 25.2548 hectares, of which 9.8683 hectares was covered by land reform being riceland, while the balance of 15.3864 hectares was sugarland. Since respondents timely filed their application for retention of seven hectares way back in 1975 and the deadline was in 1985, the Court of Appeals held that respondents were qualified to retain at least seven hectares. Moreover, the Court of Appeals stated that under Administrative Order No. 2, Series of 1994, an Emancipation Patent or Certificate of Land Ownership Award may be cancelled if the land covered is later found to be part of the landowner's retained area. The appellate court held that the transfer certificate of title issued on the basis of the certificate of land transfer could not operate to defeat the right of respondents to retain the five hectares they have chosen, which includes the said less than three (3) hectares (29,942 square meters) of riceland involved in this case. Petitioners motion for reconsideration was denied for lack of merit by the Court of Appeals in a Resolution27 dated December 2, 2005. Petitioner filed this petition raising the following issues: I. THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECIDED CA-G.R. [SP] NO. 85017 WITHOUT REQUIRING THAT PETITIONER HEREIN


DARAB Case No. 5357- P'98 was merely an accommodation to him in Mr. Dizons capacity as Legal Officer for the Legal Services Division of the DAR. Petitioner asserts that after the case was decided and resolved by the DARAB, the legal assistance extended to him by Mr. Fernando Dizon ended, simply because Mr. Fernando Dizon is not a full-fledged lawyer, which the respondents knew very well. Thus, the Decision of the Court of Appeals, dated May 30, 2005, cannot be enforced against him. Petitioners contention lacks merit. Petitioner was not denied due process or the right to be heard as he was furnished with a copy of the petition through his counsel of record, Mr. Fernando Dizon, who was his legal counsel before the PARAD and the DARAB. The Court notes that the applicable DARAB New Rules of Procedure (1994)29 allows a non-lawyer to appear before the Board or any of its adjudicators if he is a DAR Legal Officer. As Mr. Dizon was his counsel of record before the PARAD and the DARAB, it may be presumed that petitioner and Mr. Dizon communicated with each other as Mr. Dizon even filed a Comment to the Petition for Review filed by respondents before the Court of Appeals. The filing of the said Comment would show that petitioner was informed by Mr. Dizon that respondents filed a Petition for Review of the Decision of the DARAB with the Court of Appeals. Hence, it is the responsibility of petitioner to engage the services of a lawyer to file a Comment in his behalf and to inform the court of any change of counsel. Section 2, Rule 13 (Filing and Service of Pleadings, Judgments and Other Papers) of the Rules of Court provides: Sec. 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk of court. Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (Emphasis supplied.) As petitioner had a counsel of record, service was properly made upon the said counsel, absent any notification by petitioner to the court of circumstances requiring service upon petitioner himself. The essence of due process is simply an opportunity to be heard. Such process requires notice and an opportunity to be heard before judgment is rendered.30 Rizal Commercial Bank Corporation v. Commissioner of Internal Revenue,31 held: There is no question that the "essence of due process is a hearing before conviction and before an impartial and disinterested tribunal," but due process as a constitutional precept does not always, and in all situations, require a trial-type proceeding. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments in court; one may be heard also

through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.32 In this case, petitioner was not denied due process as he was able to file a comment before the Court of Appeals through his counsel of record, DAR Legal Officer Dizon. Moreover, records show that petitioner, with the assistance of two lawyers, Atty. Paul S. Maglalang and Atty. Jord Achaes R. David, filed a motion for reconsideration of the decision of the Court of Appeals dated May 30, 2005, which motion was denied for lack of merit by the Court of Appeals in its Resolution dated December 2, 2005. Next, petitioner contends that respondents were guilty of forum shopping when they filed on February 4, 1998 the complaint for annulment of emancipation patent, ejectment and damages, since they failed to divulge to the PARAD, DARAB and the Court of Appeals that they had filed an application for retention dated September 28, 199633 with the DAR Regional Director, and that the DAR Regional Director denied their application for retention in an Order34 dated March 12, 1998, and respondents moved for the reconsideration of the said Order of denial; hence, their application for retention was still pending. Petitioner's contention is unmeritorious. Chavez v. Court of Appeals35 held: x x x By forum shopping, a party initiates two or more actions in separate tribunals, grounded on the same cause, trusting that one or the other tribunal would favorably dispose of the matter. The elements of forum shopping are the same as in litis pendentia where the final judgment in one case will amount to res judicata in the other. The elements of forum shopping are: (1) identity of parties, or at least such parties as would represent the same interest in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.36 There is no forum shopping in this case as the parties involved and the reliefs prayed for are different. In the letter dated September 28, 1996 addressed to the DAR Regional Director, Region III, respondents reiterated their application for retention of their riceland under R.A. No. 6657. On March 12, 1998, respondents' application for retention was denied by the DAR Regional Director, Region III in Agrarian Reform Case No. LSD 0051 '98.37 Hence, the party involved in the agrarian reform case is only the respondents, who applied for retention of their landholdings under R.A. No. 6657 before the DAR. The relief sought was the exercise of respondents right of retention granted to them as landowners under R.A. No. 6657. On the other hand, the Complaint filed by respondents against petitioner before the PARAD was for annulment of emancipation patent, ejectment and damages.38 The parties involved were respondents, petitioner, the Municipal Agrarian Reform Officer Victorino D. Guevarra, the DAR

Secretary represented by the Regional Director, Region III. The reliefs prayed for was the annulment of the emancipation patent granted to petitioner and the ejectment of petitioner, on the ground that respondents application for retention of their agricultural landholdings, which included the land granted to petitioner in the emancipation patent and the subsequent transfer certificate of title issued pursuant to the emancipation patent, was still unacted upon. The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment.39 In this case, the letter of application for retention of land addressed to the DAR is not a suit against petitioner. Moreover, respondents filed the complaint for annulment of emancipation patent after petitioner was awarded Emancipation Patent No. 00728063 and issued TCT No. 25866, despite the fact that the DAR had not yet ruled on their application for retention of their landholdings, including Lot 21-F, which is the parcel of land covered by Emancipation Patent No. 00728063 granted to petitioner. Hence, it is not shown that herein respondents, as plaintiffs, filed two suits against the same defendants, and that the complaint for annulment of emancipation patent was filed to obtain a favorable judgment on the application for retention, but to protest the issuance of the emancipation patent to petitioner, as respondents' application for retention had not yet been acted upon. Moreover, petitioner contends that if the petition in CA-G.R. SP No. 85017 during the pendency of the application for retention of private respondents is not considered forum shopping, the Court of Appeals should have at least considered the former as litis pendentia, which necessitates the dismissal of the later suit. Petitioners contention is without merit. Dotmatrix Trading v. Legaspi40 explained the meaning and elements of litis pendentia, thus: Litis pendentia is a Latin term, which literally means "a pending suit" and is variously referred to in some decisions as lis pendens and auter action pendant. As a ground for the dismissal of a civil action, it refers to the situation where two actions are pending between the same parties for the same cause of action, so that one of them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits. To constitute litis pendentia, not only must the parties in the two actions be the same; there must as well be substantial identity in the causes of action and in the reliefs sought. Further, the identity should be such that any judgment that may be rendered in one case, regardless of which party is successful, would amount to res judicata in the other.41 As the elements of forum shopping, which have been discussed earlier, are the same as the elements of litis pendentia, and the said elements are not found to be present in this case, litis pendentia cannot be a ground for the dismissal of the complaint for annulment of emancipation patent. Contrary to petitioner's contention, the Register of Deeds for the Province of Pampanga was correctly not impleaded in the complaint for annulment of emancipation patent before the

DARAB as it is neither a party in interest who stands to be benefited or injured by the judgment in the suit nor a necessary party whose presence is necessary to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be made in their absence without affecting them.42 Further, petitioner contends that the PARAD and the DARAB had no jurisdiction over the complaint of respondents as it is the DAR Secretary who has jurisdiction over the right of retention. Petitioner avers that on November 6, 1996, the applicable procedure in applications for retention under P.D. No. 27 is Administrative Order No. 4 series of 1991, while applications under CARP are governed by Administrative Order No. 11, series of 1990. In both the aforesaid administrative orders, it is the DAR Regional Director who has the original jurisdiction to approve or deny applications for retention. In both instances, the decision or order of the DAR Regional Director is appealable to the DAR Secretary. Respondents counter that the PARAD and the DARAB had jurisdiction over the case, since it is for the annulment of an emancipation patent registered with the Register of Deeds, which falls under Section 1, Rule II of the DARAB New Rules of Procedure. On the issue of jurisdiction, the Court is guided by Heirs of Julian Dela Cruz and Leonora Talaro v. Heirs of Alberto Cruz,43 which held: It is axiomatic that the jurisdiction of a tribunal, including a quasi-judicial officer or government agency, over the nature and subject matter of a petition or complaint is determined by the material allegations therein and the character of the relief prayed for, irrespective of whether the petitioner or complainant is entitled to any or all such reliefs . Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the law, and not by the consent or waiver of the parties where the court otherwise would have no jurisdiction over the nature or subject matter of the action. Nor can it be acquired through, or waived by, any act or omission of the parties. Moreover, estoppel does not apply to confer jurisdiction to a tribunal that has none over the cause of action. The failure of the parties to challenge the jurisdiction of the DARAB does not prevent the court from addressing the issue, especially where the DARABs lack of jurisdiction is apparent on the face of the complaint or petition. Indeed, the jurisdiction of the court or tribunal is not affected by the defenses or theories set up by the defendant or respondent in his answer or motion to dismiss. Jurisdiction should be determined by considering not only the status or the relationship of the parties but also the nature of the issues or questions that is the subject of the controversy. If the issues between the parties are intertwined with the resolution of an issue within the exclusive jurisdiction of the DARAB, such dispute must be addressed and resolved by the DARAB. The proceedings before a court or tribunal without jurisdiction, including its decision, are null and void, hence, susceptible to direct and collateral attacks.44 In this case, respondents alleged in their Complaint: xxxx

2. That plaintiffs are the absolute and registered owners of a parcel of land covered by Transfer Certificate of Title (TCT) No. 181466-R of the Registry of Deeds of Pampanga, x x x which parcel of land is situated at San Juan, Sta. Ana, Pampanga, with an area of twenty-nine thousand nine hundred forty-one (29,941) square meters, more or less; 3. That sometime in the year 1975, plaintiffs filed an application for retention which was not acted upon but the application for retention was for the plaintiffs to retain a portion of their landholdings under P.D. No. 27; 4. That the application for retention refers to the land cultivated by the private defendant, Crispino Pangilinan, as one of those lands applied for; 5. That the application for retention was reiterated in a letter of the plaintiffs' counsel dated November 6, 1996 to the Officer-in-Charge, Provincial Agrarian Reform Office (PARO), San Fernando, Pampanga, of the public defendant which was known to private defendant, Victorino D. Guevarra, being then the Municipal Agrarian Reform Officer of the Department of Agrarian Reform in the Municipality of Sta. Ana, Pampanga; 6. That despite private defendant Victorino Guevarra's knowledge of the fact that the land is one of those applied for retention, he acted in bad faith and without notice to the plaintiffs and in wanton disregard of the rights of the plaintiffs and in collusion with the private defendant, Crispino Pangilinan, recommended for the coverage of the latter's land under Operation Land Transfer and through the defendants collective efforts, private defendants requested for the issuance of Transfer Certificate of Title (TCT) No. 25866 with Emancipation Patent (E.P.) No. 00728063 which was unlawfully issued and registered with the Register of Deeds of Pampanga on May 30, 1997; xxxx WHEREFORE, it is most respectfully prayed of the Honorable Board, that after hearing, judgment be rendered, to wit: 1. Ordering the annulment of Transfer Certificate of Title No. 25866 bearing Emancipation Patent No. 00728063 and declaring it to have no force and effect; 2. Ordering the ejectment of the private defendant, Crispino Pangilinan, from the landholding in question; 3. Ordering the defendants to pay plaintiffs the amount of One Hundred Thousand Pesos (P 100,000.00) by way of moral damages, Twenty Thousand Pesos (P 20,000.00), plus appearance fee of Eight Hundred Pesos (P 800.00) by way of attorney's fees and litigation expenses in the amount of Five Thousand Pesos (P 5,000.00); and 4. Other reliefs are likewise prayed.45

The Court holds that the Complaint is within the jurisdiction of the PARAD and the DARAB, as it seeks the annulment of petitioner's emancipation patent which has been registered with the Register of Deeds for the Province of Pampanga. The jurisdiction of the DARAB under Section 1,46 Rule II, of the applicable DAR New Rules of Procedure (1994) includes "those involving the issuance, correction and cancellation of Certificates of Land Ownership Award (CLOAs) and Emancipation Patents (EPs) which are registered with the Land Registration Authority." Section 2 of the said DARAB New Rules of Procedure grant the PARAD "concurrent original jurisdiction with the Board to hear, determine and adjudicate all agrarian cases and disputes, and incidents in connection therewith, arising within their assigned territorial jurisdiction." The resolution of the issue on whether petitioner's emancipation patent should be cancelled hinged on the right of retention of respondents; hence, the PARAD and the DARAB determined respondents right of retention. The applicable DARAB New Rules of Procedure (1994) did not contain a contrary proviso in Section 1 or Section 1 (f) thereof. The Court notes that even before the Provincial Adjudicator rendered his decision dated October 12, 1998 on the complaint for annulment of petitioner's emancipation patent, the DAR Regional Director of Pampanga had already issued an Order47 dated March 12, 1998, denying the application for retention of respondents. The DAR Regional Director held, thus: x x x The applicant seeks before this Office the grant of five (5) hectares of her landholding as retention rights under the law and, further, requested that said retention area is from her landholding covered and embraced by Title Nos. TCT-181461, 181463, 181464, 181465, 181466, 181467 and 181468. Records of the case disclosed that the Municipal Agrarian Reform Office (MARO) concerned recommended for the denial of the subject application which also the Provincial Agrarian Reform Office concurred with the findings of the MARO, hence, likewise strongly recommended the disapproval of this instant case. This Office, after painstaking scrutiny of records as well as the foregoing recommendation of the MARO and PARO, is inclined to agree with said findings. This is so because records will bear us out that the 8.6402 hectares is not only the landholding of the herein applicant as the latter owns other properties as evidenced by the Certification of the Deputy Clerk of Court, Court of First Instance of Pampanga, executed on December 24, 1975. Further, per investigation conducted by this Office, the applicant once applied for retention under PD No. 27, under the incumbency of the then Team Leader Florencio Siman of which the former declared to have a total of 9.8683 hectares, more or less, of tenanted rice and corn lands situated at San Juan and Santiago, all at the Municipality of Sta. Ana, Province of Pampanga. Said application was received by DAR Sta. Ana Office on December 24, 1975, but however, it appears that it was not acted upon nor forwarded to this Office for action. It appears also from the records of this case that it is only now that the applicant is re-applying for retention as per letter of her counsel, Atty. Proceso M. Nacino, dated November 6, 1996. This time, the MARO had already processed and forwarded to the PARO the claimfolders of

applicant tenant-farmers, whereby, the Emancipation Patent Titles of the applicant farmerbeneficiaries, namely: Maximo Lagman, Crispino Pangilinan and Cecilio Yumul were already generated, issued and distributed to them as evidenced by the certification issued by the Land Bank of the Philippines (LBP). Additionally, with respect to the portion of the landholding of the applicant which was utilized as subdivision/condominium project named Carolina Village II, Administrative Order No. 4, Series of 1991, giving close attention to Policy Statements I-B, which provides that: "1. Landowners covered by PD 27 are entitled to retain seven hectares, except those whose entire [tenanted] rice and corn lands are subject of acquisition and distribution under Operation Land Transfer (OLT). An owner of tenanted rice and corn lands may not retain these lands under the following cases: xxxx b. By virtue of LOI 474, if he as of 21 October 1976 owned less than 24 hectares of tenanted rice and corn lands but additionally owned the following: - Other agricultural lands of more than seven (7) hectares, whether tenanted or not, whether cultivated or not, and [regardless of the income derived therefrom]; or - Lands used for residential, commercial, industrial, or other urban purposes, from which he derives adequate income to support himself and his family." Given this situation, it is in this provision of law that this Office strongly deny the application for retention of the herein applicant in favor of the farmer-beneficiaries concerned who had already been issued their Emancipation Patents (EP). WHEREFORE, in the light of the foregoing analysis and for the reason indicated therein, an ORDER is hereby issued DENYING the application for retention of Jocelyn Balatbat for utter lack of merit. SO ORDERED.48 The legal basis of the decision of the DARAB in determining whether respondents were qualified to retain their riceland, in order to resolve the main issue on whether there was a ground for the cancellation of petitioner's emancipation patent, is the same as the legal basis of the DAR Regional Director in denying respondents' application for retention. Moreover, the decision of the DARAB is appealable to the Court of Appeals, pursuant to Section 5449 of R.A. No. 6657; Section 1,50 Rule XIV of the DAR New Rules of Procedure (1994); and Section 1,51 Rule 43 of the Revised Rules of Court, as amended by Administrative Circular No. 20-95.

The main issue in this case is whether or not the Court of Appeals erred in reversing and setting aside the decision of the DARAB, dated February 2, 2004, and its Resolution dated June 11, 2004; in declaring TCT No. 25866 issued in favor of petitioner as void ab initio; and in ordering the Register of Deeds to cancel TCT No. 25866 and to issue a new TCT in the name of respondents to replace TCT No. 181466-R under respondents name, which the Register of Deeds of Pampanga canceled. The Court holds that the Court of Appeals erred in reversing and setting aside the decision of the DARAB, dated February 2, 2004, and its Resolution dated June 11, 2004, which affirmed the Decision of the PARAD, dated October 12, 1998. The Court of Appeals reversed the decision of the DARAB on the ground that the right of retention by the landowner is a constitutionally guaranteed right and respondents timely filed their application for retention of seven hectares in 1975, ahead of the deadline set on August 29, 1985; hence, respondents were qualified to retain at least seven hectares, although they sought to retain only 5 hectares. However, the Court of Appeals failed to look into the legal basis cited by the DARAB that disqualified landowners from exercising their right of retention, particularly Administrative Order No. 4, series of 1991, and also LOI No. 474, which are applicable to this case and would have made a difference in the judgment of the Court of Appeals if it had considered the said laws in its decision. The laws pertinent to this case are P.D. No. 27, LOI No. 474 and Administrative Order No. 4, series of 1991. On October 21, 1972, then President Ferdinand E. Marcos issued P.D. No. 27, entitled Decreeing The Emancipation Of Tenants From The Bondage Of The Soil, Transferring To Them The Ownership Of The Land They Till And Providing The Instruments And Mechanisms Therefor. P.D. No. 27 states: This shall apply to tenant farmers of private agricultural lands primarily devoted to rice and corn under a system of sharecrop or lease-tenancy, whether classified as landed estate or not; The tenant farmer, whether in land classified as landed estate or not, shall be deemed owner of a portion constituting a family-size farm of five (5) hectares if not irrigated and three (3) hectares if irrigated; In all cases, the landowner may retain an area of not more than seven (7) hectares if such landowner is cultivating such area or will now cultivate it; On October 21, 1976, then President Marcos, issued LOI No. 474, which reads: To: The Secretary of Agrarian Reform. WHEREAS, last year I ordered that small landowners of tenanted rice/corn lands with areas of less than twenty-four hectares but above seven hectares shall retain not more than seven hectares of such lands except when they own other agricultural lands containing more than seven hectares

or land used for residential, commercial, industrial or other urban purposes from which they derive adequate income to support themselves and their families; WHEREAS, the Department of Agrarian Reform found that in the course of implementing my directive there are many landowners of tenanted rice/corn lands with areas of seven hectares or less who also own other agricultural lands containing more than seven hectares or lands used for residential, commercial, industrial or other urban purposes where they derive adequate income to support themselves and their families; WHEREAS, it is therefore necessary to cover said lands under the Land Transfer Program of the government to emancipate the tenant-farmers therein. NOW, THEREFORE, I, PRESIDENT FERDINAND E. MARCOS, President of the Philippines, do hereby order the following: 1. You shall undertake to place under the Land Transfer Program of the government pursuant to Presidential Decree No. 27, all tenanted rice/corn lands with areas of seven hectares or less belonging to landowners who own other agricultural lands of more than seven hectares in aggregate areas or lands used for residential, commercial, industrial or other urban purposes from which they derive adequate income to support themselves and their families. x x x (Emphasis supplied.) In June 1988, R.A. No. 6657, otherwise known as The Comprehensive Agrarian Reform Law of 1988, took effect under the administration of then President Corazon C. Aquino. Section 6 of R.A No. 6657 provides for the right of retention of landowners, thus: SEC. 6. Retention Limits. - Except as otherwise provided in this Act, no person may own or retain, directly or indirectly, any public or private agricultural land, the size of which shall vary according to factors governing a viable family-sized farm, such as commodity produced, terrain, infrastructure, and soil fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, but in no case shall retention by the landowner exceed five (5) hectares. Three (3) hectares may be awarded to each child of the landowner, subject to the following qualifications: (1) that he is at least fifteen (15) years of age; and (2) that he is actually tilling the land or directly managing the farm: Provided, That landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder. x x x On April 26, 1991, the DAR Secretary issued Administrative Order No. 4, series of 1991 on the Supplemental Guidelines Governing the Exercise of Retention Rights by Landowners Under Presidential Decree No. 27. The pertinent provisions thereof are as follows: xxxx B. Policy Statements

1. Landowners covered by P.D. 27 are entitled to retain seven hectares, except those whose entire tenanted rice and corn lands are subject of acquisition and distribution under Operation Land Transfer (OLT). An owner of tenanted rice and corn lands may not retain these lands under the following cases: a. If he, as of 21 October 1972, owned more than 24 hectares of tenanted rice and corn lands; or b. by virtue of LOI 474, if he, as of 21 October 1976, owned less than 24 hectares of tenanted rice or corn lands, but additionally owned the following: - Other agricultural lands of more than seven hectares, whether tenanted or not, whether cultivated or not, and regardless of the income derived therefrom; or - Lands used for residential, commercial, industrial, or other urban purposes, from which he derives adequate income to support himself and his family. In Heirs of Aurelio Reyes v. Garilao,52 the Court held that LOI No. 474 provides for a restrictive condition on the exercise of the right of retention, specifically disqualifying landowners who "own other agricultural lands of more than seven hectares in aggregate areas, or lands used for residential, commercial, industrial or other urban purposes from which they derive adequate income to support themselves and their families."53 The Court noted that the restrictive condition in LOI No. 474 is essentially the same one contained in Administrative Order No. 4, series of 1991.54 Heirs of Aurelio Reyes55 ruled that there is no conflict between R.A. No. 6675 and LOI No. 474, as both can be given a reasonable construction so as to give them effect.56 The suppletory application of laws is sanctioned under Section 7557 of RA No. 6675. Heirs of Aurelio Reyes,58 thus, held: Withal, this Court concludes that while RA No. 6675 is the law of general application, LOI No. 474 may still be applied to the latter. Hence, landowners under RA No. 6675 are entitled to retain five hectares of their landholding; however, if they too own other "lands used for residential, commercial, industrial or other urban purposes from which they derive adequate income to support themselves and their families," they are disqualified from exercising their right of retention.59 In this case, the DARAB and the Court of Appeals agreed that respondents total landholding is 25.2548 hectares, and that 9.8683 hectares thereof was riceland, which was subjected to Operation Land Transfer, while 15.3864 hectares was sugarland. In addition, the PARAD and the DARAB found that the 15.3864 hectares of sugarland was subdivided by respondents into a 4.8836 subdivision lot to support themselves and their family; hence, under LOI No. 474 and Administrative Order No. 4, series of 1991, the PARAD and the DARAB held that respondents are no longer entitled to retain seven hectares of the land subject to Operation Land Transfer. The decisions of the PARAD and the DARAB are supported by the Courts ruling in Heirs of Aurelio Reyes v. Garilao60 cited above. As the PARAD and the DARAB found that respondents

are disqualified to retain the parcel of land, which is the subject matter of this case, there was no ground to cancel the emancipation patent of petitioner; hence, the DARAB affirmed the decision of the PARAD dismissing respondents' complaint forlack of merit.1wphi1 The Court notes that the Decision dated October 12, 1998 of the PARAD and the Decision dated February 2, 2004 of the DARAB, affirming the decision of the PARAD dismissing for lack of merit the complaint for annulment of petitioner's patent, was based on the same DAR Administrative Order (Administrative Order No. 4, series of 1991) applied by the DAR Regional Director in denying the application for retention of respondents. The respective decisions of the PARAD and the DARAB, that there was no ground for the cancellation of petitioner's emancipation patent, hinged on the finding that respondents were disqualified to retain their riceland, and the legal basis of the said disqualification is consistent with the legal basis of the Regional Director's Order dated March 12, 1998, denying respondents' application for retention. Administrative Order No. 11, series of 1990, which contains the Rules and Procedures Governing the Exercise of Retention Rights by Landowners and Award to Children Under Section 6 of RA 6657 states that "the decision of the Regional Director approving or disapproving the application of the landowner for the retention and award shall become final after fifteen (15) days upon receipt of the decision, unless an appeal is made to the DAR Secretary." Moreover, Administrative Order No. 4, series of 1991, which contains the Supplemental Guidelines Governing the Exercise of Retention Rights by Landowners Under Presidential Decree No. 27 states that "the Order of the Regional Director approving or denying the application for retention shall become final fifteen (15) days from receipt of the same unless an appeal is made to the DAR Secretary." Hence, it is the DAR Secretary who finally approves or denies the application for retention. In this case, the Order dated March 12, 1998 of the Regional Director, denying respondents' application for retention, appears to be pending before the DAR Secretary, and respondents failed to present any evidence that the said Order had been reversed to warrant the cancellation of petitioner's emancipation patent. WHEREFORE, the Court of Appeals' Decision dated May 30, 2005 in CA-G.R. SP No. 85017, and its Resolution dated December 2, 2005 are REVERSED and SET ASIDE, and the Decision of the DARAB dated February 2, 2004 in DARAB Case No. 8024 and its Resolution dated June 11,2004 are hereby REINSTATED. No costs. SO ORDERED. DIOSDADO M. PERALTA Associate Justice WE CONCUR: G.R. Nos. L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents. Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

CRUZ, J.: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that. Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino.

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent-both of whom have gone their separate ways-could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the derision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power. What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court.

Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or Manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to: (2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials. Section 3 provides: The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en

banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision. While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law-despite all the canards that have been flung against it-exerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the Proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be-in fact, should be-filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest. A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its

administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including preproclamation controversies and up to the election protest. In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: Sec. 175. Suspension and annulment of proclamation .-The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof. Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial.

Besides, the term "contest" as it was understood at the time Article XII-C. Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre- proclamation proceedings, being summary in nature,

could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. It may be argued that in conferring the initial power to decide the pre- proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution Incidentally, in making the Commission the "sole judge" of pre- proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14 Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are

violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only posssible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17 Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the recrds of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his

race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying: "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons.' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED. Feria, Yap, Narvasa, Alampay and Paras, JJ., concur. Fernan and Gutierrez, Jr., JJ., concur in the result.

Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, *** , respondents. Lupino Lazaro and Arturo M. de Castro for petitioners. Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr. Rodolfo U. Jimenez for respondent Brig. Gen. Custodio. Ramon M. Bernaldo for respondent H. Gosuico. Romulo Quimbo for respondent B. Vera Cruz. Norberto J. Quisumbing for respondent P. Olivas. Felix Solomon for respondent Col. A. Custodio. Alfonso S. Cruz for B. Fernandez. Edgardo B. Gayos for M. Pamaran. RESOLUTION

TEEHANKEE, C.J.: Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a 1 nationwide press conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but overwhelming ." This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts. Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it 2 (was) technically impossible to get inside (such) a cordon." The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it." The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom.

The then President was constrained to create a Fact Finding Board to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national shame specially 4 because of the early distortions and exaggerations in both foreign and local media so that all right thinking and honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false starts,
6 5


finally constituted the Board on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done." The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention." The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote: The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality, humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life. More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country-the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people. The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. "Nobody who has great authority can be trusted not to go beyond its proper limits." Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedom-loving people. To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human Ideals in which the highest sense of moral values and integrity are strictly required. A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations. It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow ... Even at a 7 fairly low level, I would have known. I know how they think. I know what they are thinking of." He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following:

CBS: But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy). MARCOS: Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing. 8 In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," and extended "My very best wishes to you and 9 your family for a speedy resolution of your case," even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the 10 cases, he was quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a re-trial 10 before an impartial tribunal by an unbiased prosecutor. -a At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent court from 11 rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a threeday period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment. But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in reverse,

resolved to dismiss the petition and to


lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its decision. The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an eight-to-three vote, with Justice 14 Gutierrez joining the dissenters. On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985. On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent. On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to comment 15 thereon. Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises, having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation , and actually ordered the filing and prosecution of the two (2) murder cases below against herein private party respondents." He candidly admitted also in his memorandum: "There is not much that need 15 be said about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never been denied." -a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course." Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note passing issue once and for all. Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows: 1. AB INITIO, A. VERDICT OF ACQUITTAL! Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985. 2. MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacaang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members of the Panel Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof. The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then). During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do". . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious "the boys were frantic when they heard that they will be charged in court, and wig be detained at city jail." From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court, Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent.

In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned. It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited. Towards the end of the two-hour meeting and after the script had been tacitly mapped out, the former President uttered: "Mag moro-moro na lang kayo." The parting words of the former President were: "Thank you for your cooperation. I know how to reciprocate." While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on. Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void." New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim. Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures. As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity. After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it 16 submitted its extensive 64-page Report wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows: 1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman. 2. When Malacanang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the tree members of the Special Investigating Panel, and justice Pamaran to a conference in Malacanang in the early evening of January 10, 1985.

3. In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino. 4. Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy. 5. Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be "categorized" so that some of them would merely be charged as accomplices and accessories. 6. In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time. 7. The instructions given in the Malacanang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witneses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case. 8. That that expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings. 9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacaang directive, justice Herrera played his role with manifestly ambivalent feelings. 10. Sufficient evidence has been ventilated to show a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacaang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian ruler. The Commission submitted the following recommendation. Considering the existence of adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted. The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution. The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist', and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the final outcome of the case" of total absolution of the twenty-six respondents accused of all criminal and civil liability. The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts 17 at sifting the chaff from the grain, the Commission properly appraised the evidences presented and denials made by public respondents, thus: The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts,

but by a communist hired gun. It was, therefore, not a source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination. The calling of the conference was undoubtedly to accomplish this purpose. . . . President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office. xxx xxx xxx After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished. According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof. It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacanang conference wherein the said directive was given. . . . The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case. The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused, President Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out of the room President Marcos expressed his thanks to the group and uttered "I know how to reciprocate," did not receive any denial or contradiction either on the part of justice Fernandez or justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.) The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacanang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the Aquino-Galman case. The intensity of this pressure is readily deductible from the personality of the one who exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled, the then head of state to exercise authoritarian powers . That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the public eye is shown by the effort to assure its secrecy. None but those directly involved were caned to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually, no public mention alas ever made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former president was no longer around. President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of "curiosity," or "out of respect to the Office of the President," or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being summoned to Malacanang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and

exemplified Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985. 18 The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation." Suffice it to give hereinbelow brief excerpts: 1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacaang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to charge all of the twenty-six 19 (26) respondents as principals of the crime of double murder." As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said date which did not go through due to the summons for them to go to Malacanang 20 in the early evening of said date." 2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense." The Report specified the ordeals of the prosecution witnesses: Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. Witnesses Viesca and Raas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that ... Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya. ... She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the request of its manager to talk with her about her proposed testimony; that a certain William Farias offered her plane tickets for a trip abroad; that Mayor Rudy Farias of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Farias offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying. It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking

the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building. Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacaang people who were keeping track of the proceedings. Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in Power [despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate. 3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for." 4. Nine proposed rebuttal witnesses not presented. 5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else." 6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran pointblank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter. ... "Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Comission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly. "There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice xxx xxx xxx "It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations . Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth. What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division. . . . 7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the

National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime. ..." 8. The monitoring of proceedings and developments from Malacaang and by Malacaang personnel: "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacaang presumably for it to know what was happening and to take remedial measures as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and Malacaang personnel stayed to keep track of the proceedings." the close monitoring by Malacaang showed its results on several occasions specified in the Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacaang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled He saw to it that he would know if his instructions will be complied with." 9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power. "In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-six accused on the standard ground that their guilt had not been proven beyond reasonable doubt, as was the most logical and appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. ... Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was of the view that some of the accused should be convicted he having found difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacaang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis supplied) The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. 22 As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur ) since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused 23 was unpalatable (it would summon the demonstrators back to the streets ) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through 24 their acquittal the legal shield of double jeopardy. Indeed, the secret Malacanang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for 25 habeas corpus, "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of 26 justice." His obsession for "the boys' " acquittal led to several first which would otherwise be inexplicable: 1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators." 2. He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report).

3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and searing his lips. 4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and 5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a " perjured story, given deliberately and in conspiracy with one another." The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985." No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for 26 exclusive jurisdiction of courts martial over criminal offenses committed by military men -a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of 26 predetermining the outcome of individual cases. -b "This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As 27 the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case its right to due process is thereby violated. 27-a The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra).

xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect the first jeopardy was never terminated , and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much 28 longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people. 29 To paraphrase Brandeis: If the authoritarian head of the government becomes the law-breaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy. Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. |lang1033 xxx xxx xxx "Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could 30 also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 2. Motion to Disqualify/Inhibit should have been resolved Ahead.- The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacanang. PJ PAMARAN Well the court believes that we should proceed with the trial and then deal later on with that. After all, the most important thing here is, shall we say, the decision of the case. J. HERRERA I think more important than the decision of the case, Your Honor, is the capacity of the justices to sit in judgment. That is more important than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31 But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows:

... the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance (Page 22, Decision). 32 The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure recognized by 33 the Court in the 1969 case of Paredes vs. Gopengco since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process to the People if the alleged failure on the part of the 34 Tanodbayan to present the complete evidence for the prosecution is substantiated. In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. 35 Aquilizan , Wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner." 3. Re: Objections of respondents.-The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined judgment of acquittal was unlawful and void ab initio. (a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public respondents (court and Tanodbayan) for the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused. (b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict. (c) The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove. (d) The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration. (e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) 37 unanimously voted to admit the second motion for reconsideration. 4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor.There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President. As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation." Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its

judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed. The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, the Constitution and their own conscience and honor. 5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden. ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to an This resolution is immediately executory. SO ORDERED. Yap, Cruz, Paras and Feliciano, JJ., concur. Feria, **** Fernan and Narvasa , ***** JJ., took no part.

FIRST DIVISION [G.R. No. 120282. April 20, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT CASTILLO y MONES, accused-appellant. DECISION PANGANIBAN, J.: The trial court judge is not an idle arbiter during a trial. He can propound clarificatory questions to witnesses in order to ferret out the truth. The impartiality of a judge cannot be assailed on the mere ground that he asked such questions during the trial. The Case This is an appeal from the Decisioni[1] dated December 23, 1994 of the Regional Trial Court of Quezon City, Branch 88, in Criminal Case No. Q-93-45235 convicting Robert Castillo y Mones of murder and sentencing him to reclusion perpetua.ii[2]

On July 23, 1993, an amended Information iii[3] was filed by Assistant City Prosecutor Ralph S. Lee, charging appellant with murder allegedly committed as follows: That on or about the 25th day of May, 1993, in Quezon City, Philippines, the above-named accused, with intent to kill[,] qualified by evident premeditation, use of superior strength and treachery did then and there, willfully, unlawfully and feloniously assault, attack and employ personal violence upon the person of one ANTONIO DOMETITA, by then and there stabbing him with a bladed weapon[,] hitting him on his chest thereby inflicting upon him serious and mortal wounds, which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said ANTONIO DOMETITA. CONTRARY TO LAW. Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina, entered a plea of not guilty.iv[4] After trial in due course, appellant was convicted. The dispositive portion of the assailed Decision reads: WHEREFORE, premises considered, accused ROBERTO CASTILLO y MONES is found guilty beyond reasonable doubt of the crime of Murder and [is] hereby sentenced to suffer [the] penalty of reclusion perpetua. He is likewise ordered to pay the heirs of the deceased Antonio Dometita actual damages in the sum of P60,000.00, the sum of P50,000.00 by way of indemnity for the death of the victim and moral damages in the sum of P100,000.00. He is likewise ordered to pay costs. SO ORDERED.v[5] Hence, this[6] The Facts Evidence for the Prosecution The Appellees Briefvii[7] presents the facts as follows: On May 25, 1993, around one oclock in the morning, Eulogio Velasco, floor manager of the Cola Pubhouse along EDSA, Project 7, Veterans Village, Quezon City, was sitting outside the Pubhouse talking with his co-worker, Dorie. Soon, Antonio Tony Dometita, one of their customers, came out of the pubhouse. As he passed by, he informed Eulogio that he was going home. When Tony Dometita was about an armslength [sic] from Eulogio, however, appellant Robert Castillo suddenly appeared and, without warning, stabbed Tony with a fan knife on his left chest. As Tony pleaded for help, appellant stabbed him once more, hitting him on the left hand. Responding to Tonys cry for help, Eulogio placed a chair between Tony and appellant to stop appellant from further attacking Tony. He also shouted at

Tony to run away. Tony ran towards the other side of EDSA, but appellant pursued him. Eulogio came to know later that Tony had died. His body was found outside the fence of the Iglesia ni Cristo Compound, EDSA, Quezon City. Dr. Bienvenido Munoz, the medico-legal officer who autopsied Tonys cadaver, testified that the proximate cause of Tonys death was the stab wound on his left chest. Tony also suffered several incised wounds and abrasions, indicating that he tried to resist the attack.viii[8] Version of the Defense On the other hand, the defense viewed the facts in this way: ix[9] On May 25, 1993, the late Antonio Dometita was found dead by the police officers at the alley on the right side of the Iglesia ni Cristo Church at EDSA in Bago Bantay. It is the theory of the prosecution that the deceased Antonio Dometita was stabbed by the accused Robert Castillo y Mones as testified to by Leo Velasco. The corroboration of Leo Velascos testimony is that of Melinda Mercado who ( tsn Oct. 11, 1993) stated that Leo Velasco informed her that Dometita was stabbed. Robert Castillo was walking away from the pubhouse with the bladed weapon. Leo Velasco himself detailed the way Castillo stabbed the deceased Antonio Dometita. On the other hand the defense claims that the deceased died in the alley at the right side of the church. That decedent Dometita was attacked by two malefactors as testified to by Edilberto Marcelino, a tricycle driver who saw two people ganging up on a third. The same witness saw the victim falling to the ground. (TSN January 5, 1994, page 8). A report of Edilberto Marcelino to the Barangay Tanods Office was made in the blotter of the Barangay and the extract (xerox of the page) was marked as Exhibit 2. The Trial Courts Ruling The court a quo gave full credence to the testimonies of the two prosecution witnesses, who positively identified the appellant as the killer. It explained: From the testimonies of the witnesses of the prosecution and the defense, it can be gleaned that the accused, to exculpate himself from the liability, clung to the defense of alibi[,] saying that he was not at the place where the incident took place at the time of the killing. This was supported by the testimony of his mother and his neighbor and guide Malikdem. This, however, is contradicted by the testimonies of the two eyewitnesses of the prosecution who positively identified accused as the person who stabbed the victim. While the testimony of Mercado is to the effect that she did not actually see the accused hit the victim, she however, saw him walking away and carrying a bladed weapon at

the scene of the crime. Velasco on the other hand, actually saw him lunged [sic] his fan knife at the victim. These were further strengthened by the findings of the medico-legal officer that the weapon used in killing the victim [was] similar to a balisong.x[10] The trial court also found that the killing was qualified by abuse of superior strength, because the accused used a deadly weapon in surprising the victim who [was] unarmed. Although treachery was present, the trial court held that this was absorbed by abuse of superior strength. The Issues The appellant raises the following assignment of errors: xi[11] I That the trial court failed to appreciate the evidence presented by the accused that there was a stabbing/mauling incident at the side street near the Iglesia ni Cristo Church at Edsa-Bago Bantay, Quezon City (at about the time of the alleged stabbing of victime [sic] Antonio Dometita according to the prosecution version), the same evidence for the accused being butressed and supported by the barangay blotter, marked Exhibit 2. II That the trial court failed to appreciate the implications of: the medical finding that the heart and the lungs of the victim were impaled; that according to the testimony of the prosecution witness, PO3 Manolito Estacio, the victim was found at the side street near the Iglesia ni Cristo Church; and that that side street distant from the place the witnesses for the prosecution stated the victim was stabbed. These matters create reasonable doubt as to the guilt of the accused and cast distrust on the testimony of the witness Eulogio Velasco who allegedly witnessed the stabbing of the victim. III That the trial court in many instances showed its prejudice against the accused and in several instances asked questions that [were] well within the duty of the prosecution to explore and ask; it never appreciated other matters favorable to the accused, like the frontal infliction of the mortal wound and the presence [of] defense wounds which negate treachery and superiority. IV That the trial judge was bias[ed] against the accused hence the judgement of conviction.

In the main, appellant questions the trial judges (1) assessment of the credibility of the witnesses and their testimonies and (2) alleged partiality in favor of the prosecution as shown by his participation in the examination of witnesses. This Courts Ruling The appeal is bereft of merit. First Issue: Credibility of Witnesses Time and again, this Court has adhered to the rule that the factual findings xii[12] of the trial court, as well as its assessment of the credibility of witnesses, xiii[13] are entitled to great weight and are even conclusive and binding, barring arbitrariness and oversight of some fact or circumstance of weight and substance. The evaluation of the credibility of witnesses is a matter that peculiarly falls within the power of the trial court, as it has the opportunity to watch and observe the demeanor and behavior of the witnesses on the stand.xiv[14] In this case, appellant failed to provide any substantial argument to warrant a departure from this rule. The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant stab the victim is clear and unequivocal. He was sitting outside the pub house when the victim came out. Dometita, who was then only an arms length away from him, turned around to say goodbye when, suddenly, the accused came out of nowhere and stabbed the victim. Velasco narrated further that the victim asked him for help; so he responded by placing a chair between the victim and the appellant to block the assault of the accused.xv[15] Thereafter, he told Dometita to run away. The accused then chased the victim towards the other side of EDSA.xvi[16] The relevant portions of Velascos testimony are reproduced hereunder: Q A Immediately thereafter, was there any unusual incident that happened? When Dorie went inside the pub house, that was the time Tony went out, sir.

COURT: Q A Who is this Tony? Antonio Dimatita alias Tony, Your Honor.

PROS. LEE: Q A Q When Antonio Dimatita [sic] alias Tony went out, what happened? Tony asked permission from me that he will go home, sir. And what happened thereafter?

A When he ha[d] not gone far yet from me, Robert Castillo suddenly attacked him and stabbed him, sir. Q What happened to Antonio Dimatita [sic] alias Tony when he was stabbed by accused Robert Castillo? A He was taken aback. He was not able to cover up himself and he was hit by the stab made by Robert Castillo, sir. Q A On what part of the body was he hit? On the left side of the chest, sir.

Q And did you see in what summer [sic] accused Robert Castillo stabbed Antonio Dimatita [sic]? A Like this, sir. (Witness demonstrating with his right arm above his shoulder with downward stabbing position.) Q As you stated, after Tony was hit on the left side of [his] chest, what happened next? A Q He was stabbed again and was hit on the arm, sir. What arm? Left or right?

A On the left arm, air. (Witness is pointing to his left arm in between the 1st and second finger.) Q After he was hit on the left arm, what happened next?

A He went near me and asked for help, sir. I placed a bench on the middle to block the way so that Robert Castillo [would] not be able to reach him and I told Tony to run away, sir. Q A Q A Q A Did Tony run away thereafter? Yes, sir. How about accused Robert Castillo, what was he doing the[n]? He chased, sir. What happened next? I heard Tony was already dead, sir.

The testimony of Velasco that the accused stabbed the victim on the left side of the chest and then on the left arm was confirmed by the medical findings, xvii[17] particularly the autopsy report of Dr. Munoz, who testified as follows: xviii[18] COURT Q Can you tell the Court the relative position of the victim and the assailant when the stab wound was inflicted? TRIAL PROS. RALPH S. LEE Based on the wound, doctor. WITNESS A If the victim and the assailant were in a standing position, the assailant and the victim would be facing each other and the fatal wound was delivered from upward to downward, your honor. Witness Velasco further testified that the accused used a bladed weapon which looked like a fan knife.xix[19] This was also supported by Dr. Munoz, viz.:xx[20] Q Dr. Munoz, in your learned medical knowledge, what could have caused this stab wound marked as Exhibit D? A This was inflicted by a sharp pointed single bladed instrument like kitchen knife or balisong or any similar instrument. Melinda Mercado, the other prosecution witness, corroborated the story of Velasco. She testified that when she was inside the pub, she heard Velasco shout that Antonio Dometita was stabbed.xxi[21] She went out to verify and saw the accused walking away. What she saw was not the stabbing incident itself, but the accused wrapping a bladed weapon in his shirt.xxii[22] This confirms the assertion of Velasco that the accused was still holding the bladed instrument as he chased the victim. xxiii[23] Clearly, the straightforward, detailed and consistent narrations of the government witnesses show that the trial court did not err in giving credence to the account of the prosecution. Appellant contends that the trial court failed to appreciate the testimony of Defense Witness Edilberto Marcelino who narrated a stabbing/mauling incident on a side street that fateful night near the Iglesia ni Cristo Church, where the victims body was found. Said witness testified that he was driving his tricycle, when he noticed a group ganging up on a man (pinagtutulungan).xxiv[24] He then saw the person fall.xxv[25] He did not notice if the assailants had weapons, as he was a bit far from them, illumination coming only from the headlight of his tricycle. He stated that the appellant, with whom he was

familiar because he often saw him selling cigarettes along EDSA, xxvi[26] was not one of those he saw ganging up on the person who fell to the ground. He described one of the malefactors as long-haired and lanky, and the other one as fair-complexioned with a medium build,xxvii[27] descriptions which did not fit the accused. Upon witnessing the incident, Marcelino immediately proceeded to the barangay hall to report the matter. The trial court did not accord weight to said testimony. We sustain this holding. Marcelino admitted that he was about twenty-five meters away from the place of incidentxxviii[28] and that said place was not lighted. Furthermore, his tricycle was then moving because he was in a hurry.xxix[29] Thus, we agree with this statement of the trial court: [C]onsidering that it was dark and the distance from where the witness saw the incident [was] quite far, it could not have been possible for him to recognize the victim and his[30] Appellant also asserts that the trial court failed to appreciate the implications of the medical finding that the heart and lungs of the victim were impaled. He argues that these wounds made it impossible for the victim to traverse the distance from the pub house to the Iglesia ni Cristo Church area, where his body was eventually found. However, the testimony of the medico-legal expert did not rule out this possibility, as gleaned from the following: Q And if the stab wound was fatal, how long could have he [sic] lived after the infliction of the wound? A It would be very very difficult to give the duration of survival because different individual[s] would have different types of survival. Others would [live] for five minutes and others would survive for at least... in shorter time. Q But five minutes doctor would be a long time already. It could be the survival time of a person who has a strong constitution. Do you agree with me? A No, sir. In this particular case considering that the involvement here of the heart is the left ventricle which is a very thick portion of the heart, I dont think he would die in less than five minutes because the thick portion of the heart serves as a sealer once the instrument is pulled out, the tendency of the thick muscle is to close the injury so there is a much longer time for survival.xxxi[31] (Underscoring supplied.) Second Issue: Partiality of the Trial Judge Appellant declares that the trial judge was biased against him, for propounding questions that were well within the prerogative of the prosecution to explore and ask. More pointedly, appellant alleges that the trial judge took over from the prosecution and asked questions in a leading manner, xxxii[32] interrupted the cross-examination to help the witness give answers favorable to the prosecution, xxxiii[33] and asked questions which pertained to matters of opinion and allusions of bad moral character, which could not be objected to by defense counsel, because they have been ventiliated by the judge

himself.xxxiv[34] To substantiate the alleged bias and prejudice of the judge, appellant in his brief cited several pages from the transcript of stenographic notes. xxxv[35] The allegation of bias and prejudice is not well-taken. It is a judges prerogative and duty to ask clarificatory questions to ferret out the truth. xxxvi[36] On the whole, the Court finds that the questions propounded by the judge were merely clarificatory in nature. Questions which merely clear up dubious points and bring out additional relevant evidence are within judicial prerogative. Moreover, jurisprudence teaches that allegations of bias on the part of the trial court should be received with caution, especially when the queries by the judge did not prejudice the accused. The propriety of a judges queries is determined not necessarily by their quantity but by their quality and, in any event, by the test of whether the defendant was prejudiced by such questioning. In this case, appellant failed to demonstrate that he was prejudiced by the questions propounded by the trial judge. In fact, even if all such questions and the answers thereto were eliminated, appellant would still be convicted. As correctly observed by the solicitor general, there was no showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar. He is therefore presumed to have acted regularly and in the manner [that] preserve[s] the ideal of the cold neutrality of an impartial judge implicit in the guarantee of due process ( Mateo, Jr. vs. Villaluz, 50 SCRA 18).xxxvii[37] That the trial judge believed the evidence of the prosecution more than that of the defense, does not indicate that he was biased. He simply accorded greater credibility to the testimony of the prosecution witnesses than to that of the accused.xxxviii[38] Alibi Appellants defense of alibi and denial is unavailing. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time the crime was committed, but that it was likewise physically impossible for him to be at the locus criminis at the time of the alleged crime.xxxix[39] This the appellant miserably failed to do. Appellant contends that he was then asleep in his house at the time of the incident. This was supported by his mother who stated that he was asleep from 9:00 p.m. to 6:00 a.m. the next dayxl[40] and by Rosemarie Malikdem who said that she visited the accused on the night of May 24, 1993 to counsel him, which was her task in the Samahamg Magkakapitbahay.xli[41] Appellant failed to demonstrate, however, the distance between the crime scene and his house. Indeed, he testified that his house was near the crime scene. In any event, this defense cannot overturn the clear and positive testimony of the credible eyewitnesses who located appellant at the locus criminis and identified him as the assailant. xlii[42] Aggravating Circumstances The Court agrees with the trial court that appellant is guilty of murder for the death of Antonio Dometita. We likewise agree that the prosecution was unable to prove the aggravating circumstance of evident premeditation. For this circumstance to be

appreciated, there must be proof, as clear as the evidence of the crime itself, of the following elements: 1) the time when the offender determined to commit the crime, 2) an act manifestly indicating that he clung to his determination, and 3) a sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act.xliii[43] These requisites were never established by the prosecution. On the other hand, we disagree with the trial court that the killing was qualified by abuse of superior strength. To properly appreciate the aggravating circumstance of abuse of superior strength, the prosecution must prove that the assailant purposely used excessive force out of proportion to the means of defense available to the person attacked.xliv[44] The prosecution did not demonstrate that there was a marked difference in the stature and build of the victim and the appellant which would have precluded an appropriate defense from the victim. Not even the use of a bladed instrument would constitute abuse of superior strength if the victim was adequately prepared to face an attack, or if he was obviously physically superior to the assailant. Nonetheless, we hold that the killing was qualified by treachery. Treachery is committed when two conditions concur, namely, that the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate[;] and that such means, methods, and forms of execution were deliberately and consciously adopted by the accused without danger to his person. xlv[45] These requisites were evidently present in this case when the accused appeared from nowhere and swiftly and unexpectedly stabbed the victim just as he was bidding goodbye to his friend, Witness Velasco. Said action rendered it difficult for the victim to defend himself. The presence of defense wounds does not negate treachery because, as testified to by Velasco, the first stab, fatal as it was, was inflicted on the chest. The incised wounds in the arms were inflicted when the victim was already rendered defenseless. Damages The trial court awarded indemnity and actual and moral damages to the heirs of the victim. We sustain the award of indemnity in the amount of P50,000, but we cannot do the same for the actual and moral damages which must be supported by proof. In this case, the trial court did not state any evidentiary basis for this award. We have examined the records, but we failed to find any, either. WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED,xlvi[46] but the award of actual and moral damages is DELETED for lack of factual basis. Costs against appellant. SO ORDERED. Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.

G.R. No. 174431

August 6, 2012

The Heirs of JOLLY R. BUGARIN, namely MA. AILEEN H. BUGARIN, MA. LINDA B. ABIOG and MA. ANNETTE B. SUMULONG, Petitioners, vs. REPUBLIC of the PHILIPPINES, Respondent. DECISION MENDOZA, J.: This petition for review on certiorari under Rule 45 seeks to annul and set aside the April 3, 2006 Resolution 1 of the Sandiganbayan which ordered the forfeiture of some of the properties of the. late NBI Director, Jolly R. Bugarin (Bugarin); pursuant to the January 30, 2002 Decision of this Court in Republic of the Philippines v. Sandiganbayan, 2 and its August 30, 2006 Resolution which denied the motion for reconsideration. This petition, filed by the heirs of Bugarin (petitioners) prays that the Sandiganbayan be compelled to conduct hearings "for the purpose of properly determining the properties of the late Jolly R. Bugarin that should be forfeited in favor of the respondent, Republic of the Philippines."3 The Facts: The late Bugarin was the Director of the National Bureau of Investigation (NBI) when the late Ferdinand E. Marcos was still the president of the country from 1965-1986. After the latters downfall in 1986, the new administration, through the Presidential Commission on Good Government (PCGG), filed a petition for forfeiture of properties under Republic Act (R.A.) No. 1379 against him with the Sandiganbayan. The latter dismissed the petition for insufficiency of evidence in its August 13, 1991 Decision. After the Sandiganbayan denied its motion for reconsideration, the PCGG sought a review of the dismissal before the Court on December 18, 1991. Sitting En Banc, the Court found manifest errors and misapprehension of facts leading it "to pore over the evidence extant from the records," including Bugarins very own summary of his property acquisitions. Thereafter, the Court found Bugarin to have amassed wealth totaling P2,170,163.00 from 1968 to 1980 against his total income for the period 1967 to 1980 totaling only 766,548.00. With this, the Court held that Bugarins properties, which were visibly out of proportion to his lawful income from 1968 to 1980, should be forfeited in favor of the government.4 The fallo of the January 30, 2002 Decision of this Court in the Republic case,5 reads: WHEREFORE, the appealed decision of the Sandiganbayan is hereby REVERSED and SET ASIDE. The petition is GRANTED , and the properties of respondent JOLLY BUGARIN acquired from 1968 to 1980 which were disproportionate to his lawful income during the said period are ordered forfeited in favor of petitioner Republic of the Philippines. Let this case be

REMANDED to the Sandiganbayan for proper determination of properties to be forfeited in petitioners favor. 6 Bugarin moved for a reconsideration and while his motion was pending, he passed away in September 2002. With this development, his heirs, the petitioners herein, moved to have the case dismissed. The Court denied both Bugarins Motion for Reconsideration and petitioners Motion to Dismiss. Petitioners sought reconsideration but the same was likewise denied. Still, they filed their Motion for Leave to File a Second Motion for Reconsideration and its Admission with the attached Second Motion for Reconsideration, but it was likewise denied on July 27, 2004 for being a prohibited pleading while the attached motion was merely noted without action.7 On June 25, 2004, the January 30, 2002 Decision of the Court became final and executory and was entered in the Entry of Judgment.8 With the case back at the Sandiganbayan, hearing was set for January 12, 2005 to determine which properties of the late Bugarin would be forfeited in favor of the government. On the said date, only the counsels of the PCGG appeared. Upon motion, the Sandiganbayan gave the PCGG thirty (30) days within which to submit "a list of properties more or less equivalent to the amount of P1,403,615.00 and still remaining in the name of defendant Bugarin."9 Pursuant to this order, the PCGG filed its Partial Compliance, dated March 3, 2005, and Amended Partial Compliance, dated April 4, 2005. The latter contained a list of properties and investments found by the Court in the Republic case to have been acquired by Bugarin from 1968 to 1980 at P1,697,333.00. The PCCG, in a manifestation, informed the Sandiganbayan of its earnest efforts in verifying the status of Bugarins other business investments not included in their Amended Partial Compliance but only one replied to inform them that Bugarin was "not a stockholder of nor has he any investment in this company." Thus, in the same manifestation, the PCGG prayed that its latest compliance be considered sufficient conformity to the Sandiganbayans Order of January 12, 2005.10 No comment was filed by petitioners. In the hearing of May 5, 2005, petitioners moved to cancel the hearings on the ground that they had filed a motion for leave to file a motion to dismiss. The Sandiganbayan, thus, reset the hearing to August 29 and 30, 2005 and gave the PCGG time to comment on the motion and petitioners corresponding time to reply. On May 10, 2005, instead of a copy of their motion for leave to file motion to dismiss, petitioners served upon PCGG their Manifestation and Ad Cautelam Motion to Dismiss dated May 5, 2005, to which PCGG filed a comment/opposition. On August 8, 2005, the Sandiganbayan denied petitioners Motion for Leave to File Motion to Dismiss, on the ground that the case sought to be dismissed had already been decided by the Court and which decision has, in fact, attained finality on June 25, 2004. As a result, the Manifestation and Ad Cautelam Motion to Dismiss subsequently filed by petitioners was ordered stricken off the record by the Sandiganbayan on September 1, 2005.11 Two days prior to the next hearing date on September 29, 2005, petitioners moved for a reconsideration of the denial of the motion for leave of court. With this development, the hearing on the motion was set for September 30, 2005, while the hearing to determine the properties for

forfeiture was reset to a later date. On March 21, 2006, petitioners motion for reconsideration was eventually denied and the hearing to determine the properties for forfeiture was held.12 The Sandiganbayan ruled, At the hearing this afternoon, only Attys. Crisostomo A Quizon and Joshua Gilbert F. Paraiso, counsels for the heirs of Jolly Bugarin, appeared. There was no appearance for the plaintiff (respondent Republic of the Philippines). WHEREFORE, let this case be considered submitted for resolution and the Court shall determine which properties shall be forfeited in favor of the plaintiff, pursuant to the decision of the Supreme Court dated January 30, 2002. SO ORDERED.13 Petitioners moved for the reconsideration of this order arguing that the Sandiganbayan could not determine the properties to be forfeited on its own, and further prayed that the parties be allowed to present evidence to determine what properties of Bugarin would be subject to forfeiture.14 Finally, on April 3, 2006, the Sandiganbayan issued its assailed Resolution ordering the forfeiture of certain properties of Bugarin. Thus, WHEREFORE, this Court RESOLVES to: 1. ORDER the forfeiture of the properties listed in page 3 hereof; 2. ORDER the immediate issuance of a Writ of Execution pertinent to the Honorable Supreme Courts Decision, dated January 30, 2002, and the instant Resolution; 3. ORDER the concerned Register of Deeds to effect the immediate transfer of the titles of the forfeited real properties of Bugarin and/or his transferees in favor of the Republic of the Philippines; and, 4. ORDER the Corporate Secretary of Makati Sports Club and of Manila Polo Club to effect the transfer of forfeited shares of Bugarin and/ or his transferees in favor of the Republic of the Philippines. SO ORDERED.15 Page 316 referred to in the above dispositive portion of the assailed Resolution is reproduced below: Honorable Supreme Courts Decision dated January 30, 2002

REAL PROPERTY 1.Residential lot in Damarinas Village, Makati [TCT No. 247560] 2.Nine (9) Residential lots, Tagaytay City [TCT No. 8695-8703] 3.Residential House, Dasmarinas Village, Makati 4.Residential Lot, Greenhills, San Juan, MM [TCT No. 7765] 5.Residential lot, Capitol District, Quezon City [TCT No. 189558] 6.Condominium Unit, Montepino Condominium, Baguio City 7.Residential lot, Valle Verde, Pasig City, MM [TCT No. (491374)10848] 8.Residential House, Valle Verde, Pasig City 9.Residential lot, Calapan, Oriental Mindoro [TCT No. 2887] 10.Orchard and Cocoland, Puerto Galera, Oriental Mindoro [TCT No. 10926] 11.Residential House, Greenhills, San Juan OTHER INVESTMENT A.Philippine Columbian Club B.Makati Sports Club [Stock Certificate No. A-2271] C.Manila Polo Club [Membership Certificate No. 0125] D.Baguio Country Club TOTAL

YEAR ACQUISITION ACQUIRED COST 1968 1968 1969 1973 1972 1973 1976 1978 1978 1978 1980 91,140,.00 9,340.00 175,900.00 87,288.00 72,750.00 100,000.00 263,165.00 250,000.00 5,000.00 1,000.00 650,000.00



87,288.00 72,750.00

263,165.00 250,000.00 5,000.00 1,000.00 650,000.00

1968-75 1975 1978 1985

24,750.00 25,000.00 32,000.00 60,000.00 1,395,543.00 25,000.00 32,000.00

On April 6, 2006, a writ of execution was issued by the Sandiganbayan pursuant to the above resolution.17 On August 30, 2006, the Sandiganbayan denied petitioners motion for reconsideration of the April 3 Resolution.18 Meanwhile, during the pendency of this petition before this Court, the Sandiganbayan issued its December 11, 2006 Resolution granting petitioners Motion To Quash Writ on the ground that its April 3, 2006 Resolution, executing this Courts Judgment, had not yet attained finality due to the timely filing by petitioners of a motion for reconsideration. Accordingly, it ordered the Writ of Execution, dated April 6, 2006, quashed.19 In this present petition for review on certiorari, petitioners present the following: STATEMENT OF ISSUES A WHETHER OR NOT BUGARINS HEIRS SHOULD BE ACCORDED THEIR RIGHT TO DUE PROCESS. B WHETHER OR NOT THE ASSAILED RESOLUTIONS ARE IN ACCORDANCE WITH THE DECISION OF THE SUPREME COURT IN THE REPUBLIC CASE. C WHETHER OR NOT THE REPUBLIC CASE SHOULD BE SATISFIED BY FIRST EXHAUSTING ALL OF THE JUDGMENT DEBTORS PERSONAL PROPERTIES BEFORE PROCEEDING AGAINST ANY REAL PROPERTY PURSUANT TO SECTION 8(D), RULE 39 OF THE RULES OF COURT.20 Foremost in petitioners arguments is their claim that they have been deprived of their right to due process of law when the Sandiganbayan, in its April 3, 2006 Resolution, ordered for the forfeiture of Bugarins properties pursuant to the January 30, 2002 Decision of this Court in the Republic case. They fault the selection process laid down in the said case which purportedly denied them the opportunity to show that "not all of the late Bugarins properties may be forfeited."21 Petitioners accuse the Sandiganbayan of allegedly reducing their rights to a simple mathematical equation of subtracting the late Bugarins amassed wealth against his lawful income for the same period and using the difference as basis for choosing the properties to be forfeited for the sole reason that their total acquisition cost was closest to said difference.22 They, thus, want that another round of trial or hearing be conducted for "further reception of evidence"23 to determine which among the properties enumerated in the Republic case24 are illgotten wealth.

The Court finds no merit in the petition. Section 2 of R.A. No. 1379, or the "Act declaring forfeiture in favor of the state any property found to have been unlawfully acquired by any public officer or employee providing for the proceedings therefor," provides: SEC 2. Filing of Petition. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. x x x. Thus, when the government, through the PCGG, filed forfeiture proceedings against Bugarin, it took on the burden of proving the following: 1. The public official or employee acquired personal or real properties during his/her incumbency; 2. This acquisition is manifestly disproportionate to his/her salary or other legitimate income; and 3. The existence of which gives rise to a presumption that these same properties were acquired prima facie unlawfully. After the government had established these, the burden to debunk the presumption was shifted to Bugarin. He had to explain and adequately show that his acquisitions, even though they might appear disproportionate, were nonetheless lawfully acquired. Section 6 of RA No. 1379 reads: SEC.6. Judgment. If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State, x x x. It is evident in the case of Republic that upon filing the petition for forfeiture before the Sandiganbayan, the government through the PCGG offered evidence to establish that the properties acquired by Bugarin during his incumbency as NBI Director were manifestly disproportionate to the income he derived for the same period establishing that presumption of prima facie unlawful acquisitions. For his part, Bugarin also offered his evidence. This included no less than 15 witnesses and documentary evidence consisting of 48 exhibits. As earlier stated, the Sandiganbayan dismissed the petition for insufficiency of evidence. On review, this Court assessed that the dismissal was plagued with manifest errors and misapprehension of facts, thus, impelling this Court to once more "pore over the evidence." In the end, it concluded that "respondent's (Bugarins) properties acquired from 1968 to 1980 which were out of proportion to his lawful income for the said period should be forfeited in favor of the government for failure of the respondent to show, to the Court's satisfaction, that the same were lawfully acquired."25

In this case, petitioners point out that "realizing that it did not have the power to receive evidence and to try facts, this Honorable Court remanded the case to the Sandiganbayan for further reception of evidence as to what properties should be forfeited in favor of the State."26 Nothing can be farther from the truth. In the Republic case, the Court already made a determination of what properties were to be ordered forfeited. There were tables showing summaries of Bugarins real property acquisitions, business investments, as well as shares in exclusive clubs, which were laid out and evaluated. Proceeds of sales, rentals, fees and pensions were likewise enumerated and studied. The case was ordered remanded to the Sandiganbayan to determine which properties, among those enumerated as forfeited, were to be actually seized or taken in favor of the government and which were to remain with petitioners. The Court pored over the evidence adduced during the hearing at the Sandiganbayan. In the Republic case, Bugarin argued that some of the properties that were subject of the forfeiture proceedings were acquired by him and his wife before he became the NBI Director; that the acquisition cost of the properties he acquired during his incumbency was only P2.79 million; that in addition to his salaries as NBI Director, he received allowances from both government and private entities; and lastly, that his income was also derived from his and his wifes investments.27 The Court then took account of, and then valuated, all of Bugarins claims regarding his income from several sources. The professional fee Bugarin received from a private law firm, although such act could have earned him an administrative sanction, was nonetheless included but not the proceeds of his GSIS loan granted sometime in 1983. Some rentals were similarly excluded from his lawful income because these were earned from 1981 to 1986, which was beyond the period in question (1968 to 1980). The Court reasoned that the income from these rentals could not have been used to finance the purchase of real properties and shareholdings prior to 1981. Besides, the legality of said rentals is in itself of serious doubt since the source (the real property) from where it was derived was not wholly acquired from lawful income.28 From the incomes that remained or were not excluded, the Court proceeded to deduct the total personal expenses of Bugarin and his family based on an "extremely" conservative computation by the Sandiganbayan in order to arrive at the difference which represented Bugarins lawful or disposable income that, in turn, could have been used in acquiring his properties. Against this amount, the Court then compared his acquired properties, and to quote: From the summary of Bugarins assets, it can readily be seen that all of his real properties were purchased or constructed, as the case may be, from 1968 to 1980. The total acquisition cost thereof was P1,705,583.00. With the exception of those that had been liquidated, those acquired from 1981 onward, and those whose year of acquisition could not be determined, his shareholdings in various corporations and other investments amounted to P464,580.00 Hence, for the period from 1968 to 1980, he amassed wealth in the amount of P2,170,163.00. On the other hand, his total income from 1967 to 1980 amounted only to P 766,548.00, broken down as follows: Professional fees reflected in his Statement of Assets and Liabilities for P 55,000.00

December 1969 Professional fees from the Law Firm of San Juan, Africa, Gonzales and San Agustin from 1978 to 1980 at the rate of P 70,000 per annum Proceeds from the sale of his lot in Iloilo City in 1968 Salaries and Allowances from the NBI as reflected in his Income Statement (assuming that this is accurate)29 Total

210,000.00 15,000.00 486,548.00 P 766,548.00

It bears repeating that the proceeds of the loan granted to him by the GSIS in 1983 and the rental income from 1981 to 1986, as well as the proceeds of the sale of his real property in 1984, could not have been utilized by him as his funds for the real properties and investment he acquired in 1980 and in the preceding years. His lawful income for the said period being only P 766,548.00, the same was grossly insufficient to finance the acquisition of his assets for the said period whose aggregate cost was P 2,170,163.00. This gross disparity would all the more be emphasized had there been evidence of his actual family and personal expenses and tax payments. Premises considered, respondents (Bugarins) properties acquired from 1968 to 1980 which were out of proportion to his lawful income for the said period should be forfeited in favor of the government for failure of the respondent to show, to the Courts satisfaction, that the same was lawfully acquired.30 Based on the assiduous reassessment of evidence in the Republic case, and after finding that Bugarins properties acquired during the period in question were grossly disproportionate to his lawful income during the same period without any satisfactory explanation as to how this came to be, the Court granted the petition, reversed and set aside the Sandiganbayans dismissal of the forfeiture proceedings, and ordered forfeited in favor of the government Bugarins properties acquired from 1968 to 1980 that were disproportionate to his lawful income earned during the same period. The case was then remanded to the Sandiganbayan "for proper determination of properties to be forfeited" 31 in favor of the government. The preceding summary of the Republic case, readily shows that Bugarin was accorded due process. He was given his day in court to prove that his acquired properties were lawfully attained. A review of the full text of the said case will reveal that the summary of properties acquired by Bugarin during his tenure as NBI Director was based on his very own exhibits. From this enumeration, the Court set aside those properties that had been liquidated or those that had been obtained in 1981 onwards. Even those properties whose acquisition dates could no longer be determined were also excluded, all to the benefit of Bugarin. What remained was a trimmed down listing of properties, from which the Sandiganbayan may choose in executing the order of forfeiture of the Court. Moreover, in arriving at the amount representing his lawful income or disposable income during his incumbency as NBI Director, the Court subtracted from Bugarins income as stated in "Exhibit -38," the personal expenses of his family, which according to the Court was quite conservative, again redounding to the benefit of Bugarin.

The essence of due process is the right to be heard.32 Based on the foregoing, Bugarin or his heirs were certainly not denied that right. Petitioners cannot now claim a different right over the reduced list of properties in order to prevent forfeiture, or at the least, justify another round of proceedings. This Court continues to emphasize that due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their respective sides of the controversy.33 Thus, when the party seeking due process was in fact given several opportunities to be heard and air his side, but it is by his own fault or choice he squanders these chances, then his cry for due process must fail.34 When the case was remanded to the Sandiganbayan for execution, petitioners were likewise accorded due process. Records of this case reveal that every motion by petitioners for resetting of hearing dates was granted, and every motion filed, either for reconsideration or leave of court, was heard. Although their counsel claimed that he did not receive the notice for the first hearing set on January 12, 2005 because it seemed that it was "sent to the wrong address,"35 the fact remains that by March 3, 2005, he had informed the Sandiganbayan of the mistake and, in fact, provided it with the correct address.36 More importantly though, after the January 12, 2005 setting, five (5) more hearings were set May 5 and 6, September 29 and 30, and November 10, 2005.37 This time, petitioners were represented. Instead of questioning the order of January 12, 2005, which required the government to submit its list of properties to be forfeited from the delimited list found in the Republic decision, or seek leave to provide that court with their own alternative list of properties from the same delimited list, petitioners chose to pursue the course of seeking for the nth time the dismissal of the case altogether, an issue that had long been resolved and settled by this Court in Republic. In that hearing set on May 5, 2005, petitioners collaborating counsel, in open court, sought leave to file a motion to dismiss. Necessarily, the hearing for that day and the following day were cancelled. On May 10, petitioners filed a Manifestation and Ad Cautelam Motion to Dismiss, dated May 5, 2005.38 The OSG pointed out that, save for the caption and the appellation of the parties, the above motion to dismiss was an exact replica of motion to dismiss filed and eventually dismissed by the Court in Republic.39 Eventually petitioners motion for leave to file a motion to dismiss was denied on August 8, 2005.40 The said Manifestation and Ad Cautelam Motion to Dismiss was subsequently ordered stricken off the record by the Sandiganbayan on September 1, 2005.41 Unrelenting, petitioners sought reconsideration which again resulted in the cancellation of the September 29 and 30 settings. Hearing was next reset to November 10, 2005 but this also did not push through because petitioners motion for reconsideration had not been resolved at that point. Hearing was eventually held on March 21, 2006. With petitioners duly represented and despite the absence of the counsels for the government, the Sandiganbayan issued an order declaring the case submitted for resolution and that it would determine which properties shall be forfeited.42 And as expected, petitioners also sought reconsideration for this. In the case of Philippine Guardians Brotherhood, Inc. v. COMELEC,43 this Court elucidated on this all too important right to due process,

On the due process issue, we agree with the COMELEC that PGBI's right to due process was not violated for PGBI was given an opportunity to seek, as it did seek, a reconsideration of Resolution No. 8679. The essence of due process, we have consistently held, is simply the opportunity to be heard; as applied to administrative proceedings, due process is the opportunity to explain one's side or the opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential. The requirement is satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and hearing x x x. We find it obvious under the attendant circumstances that PGBI was not denied due process. x x x. (Emphasis supplied) Petitioners should have realized in the fallo, as well as in the body of the Republic decision, that the properties listed by this Court were all candidates for forfeiture. At that point, no additional proof or evidence was required. All that was needed was for the Sandiganbayan, as the court of origin, to make sure that the aggregate sum of the acquisition costs of the properties chosen remained within the amount which was disproportionate to the income of Bugarin during his tenure as NBI Director. To reiterate, the case was only remanded to the Sandiganbayan to implement the Courts ruling in the Republic case. To grant the petition and order the Sandiganbayan to receive evidence once again would be tantamount to resurrecting the long-settled disposition in the Republic case. This cannot be permitted. In settling this once and for all, Section 10 of R.A. No. 1379 is instructive. SEC. 10. Effect of Record of Title. The fact that any real property has been recorded in the Registry of Property or office of the Registry of Deeds in the name of respondent or of any person mentioned in paragraph (1) and (2) of subsection (b) of section one hereof shall not prevent the rendering of the judgment referred to in section six of this Act. And paragraphs (1) and (2) referred to provide, 1. Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, the respondents spouse, ascendants, descendants, relatives, or any other person. 2. Property unlawfully acquired by the respondent, but transferred by him to another person or persons on or after the effectivity of this Act. It is equally clear in the earlier quoted fallo of the Republic that this Court had already made a determination, nay, a declaration that the properties of the late Bugarin acquired from 1968 to 1980 which were disproportionate to his lawful income were ordered forfeited in favor of the State. Following Section 6 of R.A. No. 1379, this means that the late Bugarin, now being represented by the petitioners, failed to convince the Court that the delimited list of properties were lawfully acquired. With this failure, the said properties have been ordered forfeited to the extent or up to that which is disproportionate to his lawful or disposable income which was likewise determined by the Court in that case.

The properties, consisting of real and other investments, acquired within the subject period were identified and listed down in the case of Republic. Both the acquisition dates which were likewise indicated there were reckoned. Still in Republic, the lawful income of Bugarin during the same period was also determined by the Court based on his very own "Exhibit 38" minus that tempered amount representing his as well as his familys personal expenses. Therefore, when the case was returned to the Sandiganbayan, it was not, as petitioners ardently claim to conduct another full blown trial or proceeding to determine or establish the very same things that this Court had long decided in Republic. Rather, it was to choose from among the Courts identified and declared reduced list of properties that would approximate the amount which was beyond or out of proportion to Bugarins lawful income also identified and declared by the High Tribunal in the same case. The immutability of judgment that has long become final and executory is the core, the very essence of an effective and efficient administration of justice. Thus, in Labao v. Flores,44 this Court reiterated the importance of the doctrine: Needless to stress, a decision that has acquired finality becomes immutable and unalterable and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. All the issues between the parties are deemed resolved and laid to rest once a judgment becomes final and executory; execution of the decision proceeds as a matter of right as vested rights are acquired by the winning party. Just as a losing party has the right to appeal within the prescribed period, the winning party has the correlative right to enjoy the finality of the decision on the case. After all, a denial of a petition for being time-barred is tantamount to a decision on the merits. Otherwise, there will be no end to litigation, and this will set to naught the main role of courts of justice to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality. As regards the third issue, petitioners argue that since proceedings in the Republic case are civil in nature, the Sandiganbayan, in executing the Republic decision, the late Bugarins personal properties should have been exhausted before resorting to the forfeiture of real properties following Section 8, Rule 39 of the Rules of Court. Once again, petitioners are mistaken. Categorizing forfeiture proceedings as civil rather than criminal is all too simple. Petitioners, who at one point already took the opposite view, should know better. Forfeiture proceedings under R.A. No. 1379 is a peculiarity. In the Republic case, this Court held that it is civil in nature because the proceeding does not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the government. In addition, the procedure followed was that provided for in a civil action. Yet, in the case of Cabal v. Kapunan,45 the Court also declared that forfeiture partakes the nature of a penalty. Thus, while the procedural aspect of these proceedings remain civil in form, the very forfeiture of property found to be unlawfully acquired is inescapably in the nature of a penalty.46

Necessarily, petitioners' position must fail. In forfeiting the properties of Bugarin enumerated in the list, the ultimate end was to abandon and surrender the properties unlawfully acquired in favor of the government. It is not to simply satisfy some certain or specific amount which can be done by merely proceeding with the personal properties first and real properties next. More than the amount, it is the property, whether real 9r personal, that is illegally acquired that is being sought to be seized or taken in favor of the government. The properties of Bugarin in the list have been found unlawfully acquired.1wphi1 The same have been ordered forfeited in favor of the government a decade ago. It is high time that the Republic decision be finally carried out. WHEREFORE, the petition is DENIED, The Resolutions of the Sandiganbayan dated April 3, 2006 and August 30, 2006, implementing the January 30, 2002 Decision of the Court in Republic v. Sandiganbayan, are hereby AFFIRMED. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice WE CONCUR

iG.R. No. 192088

October 9, 2012

INITIATIVES FOR DIALOGUE AND EMPOWERMENT THROUGH ALTERNATIVE LEGAL SERVICES, INC. (IDEALS, INC.), represented by its Executive Director, Mr. Edgardo Ligon, and FREEDOM FROM DEBT COALITION (FDC), represented by its Vice President Rebecca L. Malay, AKBAYAN CITIZEN'S ACTION PARTY, represented by its Chair Emeritus Loretta Anne P. Rosales, ALLIANCE OF PROGRESSIVE LABOR, represented by its Chairperson, Daniel L. Edralin, REP. WALDEN BELLO, in his capacity as duly-elected Member of the House of Representatives, Petitioners, vs. POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT CORPORATION (PSALM), represented by its Acting President and Chief Executive Officer Atty. Ma. Luz L. Caminero, METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), represented by its Administrator Atty. Diosdado M. Allado, NATIONAL IRRIGATION ADMINISTRATION (NIA), represented by its Administrator Carlos S. Salazar, KOREA WATER RESOURCES CORPORATION, represented by its Chief Executive Officer, Kim Kuen-Ho and/or Attorneysin-fact, Atty. Anna Bianca L. Torres and Atty. Luther D. Ramos, FIRST GEN NORTHERN ENERGY CORP., represented by its President, Mr. Federico R. Lopez, SAN MIGUEL CORP., represented by its President, Mr. Ramon S. Ang, SNABOITIZ POWER-PANGASINAN INC., represented by its President, Mr. Antonio R. Moraza, TRANS-ASIA OIL AND ENERGY DEVELOPMENT CORPORATION, represented by its President and CEO, Mr. Francisco L. Viray, and DMCI POWER CORP., represented by its President, Mr. Nestor Dadivas, Respondents. DECISION VILLARAMA, J.: Before us is a petition for certiorari and prohibition seeking to permanently enjoin the sale of the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources Corporation (K-Water) which won the public bidding conducted by the Power Sector Assets and Liabilities Management Corporation (PSALM). The Facts Respondent PSALM is a government-owned and controlled corporation created by virtue of Republic Act No. 9136,1 otherwise known as the "Electric Power Industry Reform Act of 2001" (EPIRA). The EPIRAprovided a framework for the restructuring of the electric power industry, including the privatization of the assets of the National Power Corporation (NPC), the transition to the desired competitive structure, and the definition of the responsibilities of the various government agencies and private entities. Said law mandated PSALM to manage the orderly sale, disposition, and privatization of NPC generation assets, real estate and other disposable assets, and Independent Power Producer (IPP) contracts with the objective of liquidating all NPC financial obligations and stranded contract costs in an optimal manner, which liquidation is to be completed within PSALMs 25-year term of existence.2 Sometime in August 2005, PSALM commenced the privatization of the 246-megawatt (MW) AHEPP located in San Lorenzo, Norzagaray, Bulacan. AHEPPs main units built in 1967 and 1968, and 5 auxiliary units, form part of the Angat Complex which includes the Angat Dam, Angat Reservoir and

the outlying watershed area. A portion of the AHEPP - the 10 MW Auxiliary Unit No. 4 completed on June 16, 1986 and the 18 MW Auxiliary Unit No. 5 completed on January 14, 1993 - is owned by respondent Metropolitan Waterworks and Sewerage System (MWSS).3 The main units produce a total of 200 MW of power while the auxiliary units yield the remaining 46 MW of power. The Angat Dam and AHEPP are utilized for power generation, irrigation, water supply and flood control purposes. Because of its multi-functional design, the operation of the Angat Complex involves various government agencies, namely: (1) NPC; (2) National Water Resources Board (NWRB); (3) MWSS; (4) respondent National Irrigation Administration (NIA); and (5) Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAG-ASA). On December 15, 2009, PSALMs Board of Directors approved the Bidding Procedures for the privatization of the AHEPP. An Invitation to Bid was published on January 11, 12 and 13, 2010 in three major national newspapers. Subject of the bid was the AHEPP consisting of 4 main units and 3 auxiliary units with an aggregate installed capacity of 218 MW. The two auxiliary units owned by MWSS were excluded from the bid. The following terms and conditions for the purchase of AHEPP were set forth in the Bidding Package: IB-05 CONDITION OF THE SALE The Asset shall be sold on an "AS IS, WHERE IS" basis. The Angat Dam (which is part of the Non-Power Components) is a multi-purpose hydro facility which currently supplies water for domestic use, irrigation and power generation. The four main units of the Angat Plant release water to an underground trailrace that flows towards the Bustos Dam which is owned and operated by the National Irrigation Administration ("NIA") and provides irrigation requirements to certain areas in Bulacan. The water from the auxiliary units 1, 2 and 3 flows to the Ipo Dam which is owned and operated by MWSS and supplies domestic water to Metro Manila and other surrounding cities. The priority of water usage under Philippine Law would have to be observed by the Buyer/Operator. The Winning Bidder/Buyer shall be requested to enter into an operations and maintenance agreement with PSALM for the Non-Power Components in accordance with the terms and conditions of the O & M Agreement to be issued as part of the Final Transaction Documents. The Buyer, as Operator, shall be required to operate and maintain the Non-Power Components at its own cost and expense. PSALM is currently negotiating a water protocol agreement with various parties which are currently the MWSS, NIA, the National Water Resources Board and NPC. If required by PSALM, the Buyer will be required to enter into the said water protocol agreement as a condition to the award of the Asset. The Buyer shall be responsible for securing the necessary rights to occupy the land underlying the Asset.4 (Emphasis supplied.) All participating bidders were required to comply with the following: (a) submission of a Letter of Interest; (b) execution of Confidentiality Agreement and Undertaking; and (c) payment of a non-refundable fee of US$ 2,500 as Participation Fee.5 After holding pre-bid conferences and forum discussions with various stakeholders, PSALM received the following bids

from six competing firms: K-WaterUS$ 440,880,000.00First Gen Northern Energy365,000,678.00Corporation San Miguel Corporation312,500,000.00SNAboitiz Power-Pangasinan, Inc.256,000,000.00Trans-Asia Oil & Energy237,000,000.00Development Corporation DMCI Power Corporation188,890,000.00On May 5, 2010, and after a post-bid evaluation, PSALMs Board of Directors approved and confirmed the issuance of a Notice of Award to the highest bidder, K-Water.6 On May 19, 2010, the present petition with prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction was filed by the Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. (IDEALS), Freedom from Debt Coalition (FDC), AKBAYAN Citizens Action Party (AKBAYAN) and Alliance of Progressive Labor. On May 24, 2010, this Court issued a Status QuoAnte Order directing the respondents to maintain the status quo prevailing before the filing of the petition and to file their respective Comments on the petition.7 Arguments of the Parties Petitioners contend that PSALM gravely abused its discretion when, in the conduct of the bidding it disregarded and violated the peoples right to information guaranteed under the Constitution, as follows: (1) the bidding process was commenced by PSALM without having previously released to the public critical information such as the terms and conditions of the sale, the parties qualified to bid and the minimum bid price, as laid down in the case of Chavez v. Public Estates Authority8; (2) PSALM refused to divulge significant information requested by petitioners, matters which are of public concern; and (3) the bidding was not conducted in an open and transparent manner, participation was indiscriminately restricted to the private sectors in violation of the EPIRA which provides that its provisions shall be "construed in favor of the establishment, promotion, preservation of competition and people empowerment so that the widest participation of the people, whether directly or indirectly, is ensured."9 Petitioners also assail the PSALM in not offering the sale of the AHEPP to MWSS which co-owned the Angat Complex together with NPC and NIA. Being a mere co-owner, PSALM cannot sell the AHEPP without the consent of co-owners MWSS and NIA, and being an indivisible thing, PSALM has a positive obligation to offer its undivided interest to the other co-owners before selling the same to an outsider. Hence, PSALMs unilateral disposition of the said hydro complex facility violates the Civil Code rules on co-ownership (Art. 498) and Sec. 47 (e) of the EPIRA which granted PSALM the legal option of transferring possession, control and operation of NPC generating assets like the AHEPP to another entity in order "to protect potable water, irrigation and all other requirements imbued with public interest." As to the participation in the bidding of and award of contract to K-Water which is a foreign corporation, petitioners contend that PSALM clearly violated the constitutional provisions on the appropriation and utilization of water as a natural resource, as implemented by the Water Code of the Philippines limiting water rights to Filipino citizens and corporations which are at least 60% Filipinoowned. Further considering the importance of the Angat Dam which is the source of 97% of Metro Manilas water supply, as well as irrigation for farmlands in 20 municipalities and towns in Pampanga and Bulacan, petitioners assert that PSALM should prioritize such domestic and community use of

water over that of power generation. They maintain that the Philippine Government, along with its agencies and subdivisions, have an obligation under international law, to recognize and protect the legally enforceable human right to water of petitioners and the public in general. Petitioners cite the Advisory on the "Right to Water in Light of the Privatization of the Angat HydroElectric Power Plant"10 dated November 9, 2009 issued by the Commission on Human Rights (CHR) urging the Government to revisit and reassess its policy on water resources vis--vis its concurrent obligations under international law to provide, and ensure and sustain, among others, "safe, sufficient, affordable and convenient access to drinking water." Since investment in hydropower business is primarily driven by generation of revenues both for the government and private sector, the CHR warns that once the AHEPP is privatized, there will be less accessible water supply, particularly for those living in Metro Manila and the Province of Bulacan and nearby areas which are currently benefited by the AHEPP. The CHR believes that the management of AHEPP is better left to MWSS being a government body and considering the public interest involved. However, should the decision to privatize the AHEPP become inevitable, the CHR strongly calls for specific and concrete safeguards to ensure the right to water of all, as the domestic use of water is more fundamental than the need for electric power. Petitioners thus argue that the protection of their right to water and of public interest requires that the bidding process initiated by PSALM be declared null and void for violating such right, as defined by international law and by domestic law establishing the States obligation to ensure water security for its people. In its Comment With Urgent Motion to Lift Status Quo Ante Order, respondent PSALM prayed for the dismissal of the petition on the following procedural grounds: (a) a petition for certiorari is not the proper remedy because PSALM was not acting as a tribunal or board exercising judicial or quasijudicial functions when it commenced the privatization of AHEPP; (b) the present petition is rendered moot by the issuance of a Notice of Award in favor of K-Water; (c) assuming the petition is not mooted by such contract award, this Court has no jurisdiction over the subject matter of the controversy involving a political question, and also because if it were the intent of Congress to exclude the AHEPP in the privatization of NPC assets, it should have clearly expressed such intent as it did with the Agus and Pulangui power plants under Sec. 47 of the EPIRA; (d) petitioners lack of standing to question the bidding process for failure to show any injury as a result thereof, while Rep. Walden Bello likewise does not have such legal standing in his capacity as a duly elected member of the House of Representatives as can be gleaned from the rulings in David v. Arroyo11 and Philippine Constitutional Association v. Enriquez.12 On the alleged violation of petitioners right to information, PSALM avers that it conducted the bidding in an open and transparent manner, through a series of events in accordance with the governing rules on public bidding. The non-disclosure of certain information in the invitation to bid was understandable, such as the minimum or reserve price which are still subject to negotiation and approval of PSALMs Board of Directors. The ruling in Chavez v. Public Estates Authority13 is inapplicable since it involved government property which has become unserviceable or was no longer needed and thus fell under Sec. 79 of the Government Auditing Code whereas the instant case concerns a hydroelectric power plant adjacent to a dam which still provides water supply to Metro Manila. In the bidding for the AHEPP, PSALM claims that it relied on the Rules and Regulations Implementing the EPIRA, as well as COA

Circular No. 89-296 on the general procedures for bidding by government agencies and instrumentalities of assets that will be divested or government property that will be disposed of. PSALM likewise avers that it was constrained to deny petitioner IDEALS letter dated April 20, 2010 requesting documents relative to the privatization of Angat Dam due to non-submission of a Letter of Interest, Confidentiality and Undertaking and non-payment of the Participation Fee. With regard to IDEALS request for information about the winning bidder, as contained in its letter dated May 14, 2010, the same was already referred to respondent K-Waters counsel for appropriate action. In any case, PSALM maintains that not all details relative to the privatization of the AHEPP can be readily disclosed; the confidentiality of certain matters was necessary to ensure the optimum bid price for the property. PSALM further refutes the assertion of petitioners that the Angat Complex is an indivisible system and co-owned with MWSS and NIA. It contends that MWSSs contribution in the funds used for the construction of the AHEPP did not give rise to a regime of co-ownership as the said funds were merely in exchange for the supply of water that MWSS would get from the Angat Dam, while the UmirayAngatTransbasin Rehabilitation Project the improvement and repair of which were funded by MWSS, did not imply a co-ownership as these facilities are located in remote places. Moreover, PSALM points out that PSALM, MWSS and NIA each was issued a water permit, and are thus holders of separate water rights. On the alleged violation of petitioners and the peoples right to water, PSALM contends that such is baseless and proceeds from the mistaken assumption that the Angat Dam was sold and as a result thereof, the continuity and availability of domestic water supply will be interrupted. PSALM stresses that only the hydroelectric facility is being sold and not the Angat Dam which remains to be owned by PSALM, and that the NWRB still governs the water allocation therein while the NPC-FFWSDO still retains exclusive control over the opening of spillway gates during rainy season. The foregoing evinces the continued collective control by government agencies over the Angat Dam, which in the meantime, is in dire need of repairs, the cost of which cannot be borne by the Government. PSALM further debunks the nationality issue raised by petitioners, citing previous opinions rendered by the Department of Justice (DOJ) consistently holding that the utilization of water by a hydroelectric power plant does not constitute appropriation of water from its natural source considering that the source of water (dam) that enters the intake gate of the power plant is an artificial structure. Moreover, PSALM is mindful of the States duty to protect the publics right to water when it sold the AHEPP. In fact, such concern as taken into consideration by PSALM in devising a privatization scheme for the AHEPP whereby the water allocation is continuously regulated by the NWRB and the dam and its spillway gates remain under the ownership and control of NPC. In its Comment,14 respondent MWSS asserts that by virtue of its various statutory powers since its creation in 1971, which includes the construction, maintenance and operation of dams, reservoir and other waterworks within its territorial jurisdiction, it has supervision and control over the Angat Dam given that the Angat Reservoir supplies approximately 97% of the water requirements of Metro Manila. Over the course of its authority over the Angat Dam, Dykes and Reservoir, MWSS has incurred expenses to maintain their upkeep, improve and upgrade their facilities. Thus, in 1962, MWSS contributed about 20% for the construction cost of the Angat Dam and Dykes (then equivalent to about P 21 million); in 1992, MWSS contributed about P 218 million for the construction of Auxiliary Unit No. 5; in 1998, MWSS contributed P 73.5 million for the construction cost of the low level outlet; and

subsequently, MWSS invested P 3.3 billion to build the Umiray-AngatTransbasin Tunnel to supplement the water supply available from the Angat Dam, which tunnel contributes a minimum of about 9 cubic meters per second to the Angat Reservoir, thus increasing power generation. MWSS argues that its powers over waterworks are vested upon it by a special law (MWSS Charter) which prevails over the EPIRA which is a general law, as well as other special laws, issuances and presidential edicts. And as contained in Sec. 1 of the MWSS Charter, which remains valid and effective, it is expressly provided that the establishment, operation and maintenance of waterworks systems must always be supervised by the State. MWSS further alleges that after the enactment of EPIRA, it had expressed the desire to acquire ownership and control of the AHEPP so as not to leave the operation of the Angat Reservoir to private discretion that may prejudice the water allocation to MWSS as dictated by NWRB rules. Representations were thereafter made with the Office of the President (OP) for the turn over of the management of these facilities to MWSS, and joint consultation was also held with PSALM officials for the possibility of a Management Committee to manage and control the Angat Dam Complex under the chairmanship of the water sector, which position was supported by former Secretary HermogenesEbdane of the Department of Public Works and Highways (DPWH). In March 2008, PSALM proposed the creation of an inter-agency technical working group (TWG) to draft the Operations and Maintenance (O & M) Agreement for the AHEPP that will be in effect after its privatization. PSALM likewise sought the view of the Office of the Government Corporate Counsel (OGCC) which opined that PSALM may turn over the facility to a qualified entity such as MWSS without need of public bidding. In 2009, various local governments supported the transfer of the control and management of the AHEPP to MWSS, while the League of Cities and Municipalities interposed its opposition to the privatization of the AHEPP fearing that it might increase the cost of water in Metro Manila, and also because it will be disadvantageous to the national government since the AHEPP only contributes 246 MW of electricity to the Luzon Grid. Even the CHR has advised the Government to reassess its privatization policy and to always consider paramount the most basic resources necessary and indispensable for human survival, which includes water. MWSS further avers that upon the facilitation of the OGCC and participated in by various stakeholders, including its two concessionaires, Manila Water Company, Inc. and Maynilad Water Services, Inc., various meetings and conferences were held relative to the drafting of the Memorandum of Agreement on the Angat Water Protocol. On April 20, 2010, the final draft of the Angat Water Protocol was finally complete. However, as of June 18, 2010, only MWSS and NIA signed the said final draft. MWSS thus contends that PSALM failed to institute any safeguards as prescribed in Sec. 47 of the EPIRA when it proceeded with the privatization of the AHEPP. As to the issue of nationality requirement in the appropriation of water resources under the Constitution, MWSS cites the case of Manila Prince Hotel v. Government Service Insurance System15 which interpreted paragraph 2, Sec. 10, Art. XII of the 1987 Constitution providing that "in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos" to imply "a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement x xx and is per se judicially enforceable." In this case, the AHEPP is in dire danger of being wholly-owned by a Korean corporation which probably merely considers it as just another business opportunity, and as such cannot be expected to observe and ensure the smooth facilitation of the more critical purposes of

water supply and irrigation. Respondent First Gen Northern Energy Corporation (FGNEC) also filed a Comment 16 disagreeing with the contentions of petitioners and respondent MWSS on account of the following: (1) the NPC charter vested upon it complete jurisdiction and control over watersheds like the Angat Watershed surrounding the reservoir of the power plants, and hence Art. 498 of the Civil Code is inapplicable; (2) NPC, MWSS and NIA are not co-owners of the various rights over the Angat Dam as in fact each of them holds its own water rights; (3) the State through the EPIRA expressly mandates PSALM to privatize all NPC assets, which necessarily includes the AHEPP; (4) the privatization of the AHEPP will not affect the priority of water for domestic and municipal uses as there are sufficient safeguards to ensure the same, and also because the Water Code specifically mandates that such use shall take precedence over other uses, and even the EPIRA itself gives priority to use of water for domestic and municipal purposes over power generation; (5) the Water Protocol also safeguards priority of use of water for domestic purposes; (6) the bidding procedure for the AHEPP was valid, and the bidding was conducted by PSALM in an open and transparent manner; and (7) the right to information of petitioners and the public in general was fully satisfied, and PSALM adopted reasonable rules and regulations for the orderly conduct of its functions pursuant to its mandate under the EPIRA. FGNEC nevertheless prays of this Court to declare the nationality requirements for the ownership, operation and maintenance of the AHEPP as prescribed by the Constitution and pertinent laws. Considering the allegation of petitioners that K-Water is owned by the Republic of South Korea, FGNEC asserts that PSALM should not have allowed said entity to participate in the bidding because under our Constitution, the exploration, development and utilization of natural resources are reserved to Filipino citizens or to corporations with 60% of their capital being owned by Filipinos. Respondent NIA filed its Comment17 stating that its interest in this case is limited only to the protection of its water allocation drawn from the Angat Dam as determined by the NWRB. Acknowledging that it has to share the meager water resources with other government agencies in fulfilment of their respective mandate, NIA submits that it is willing to sit down and discuss issues relating to water allocation, as evidenced by the draft Memorandum of Agreement on the Angat Water Protocol. Since the reliefs prayed for in the instant petition will not be applicable to NIA which was not involved in the bidding conducted by PSALM, it will thus not be affected by the outcome of the case. Respondents San Miguel Corporation (SMC), DMCI Power Corporation, Trans-Asia Oil and Energy Development Corporation and SNAboitiz Power-Pangasinan, Inc. filed their respective Comments18 with common submission that they are not real parties-in-interest and should be excluded from the case. They assert that PSALM acted pursuant to its mandate to privatize the AHEPP when it conducted the bidding, and there exists no reason for them to take any action to invalidate the said bidding wherein they lost to the highest bidder K-Water. On its part, respondent K-Water filed a Manifestation In Lieu of Comment19 stating that it is not in a position to respond to petitioners allegations, having justifiably relied on the mandate and expertise of PSALM in the conduct of public bidding for the privatization of the AHEPP and had no reason to question the legality or constitutionality of the privatization process, including the bidding. K-Water submits that its participation in the bidding for the AHEPP was guided at all times by an abiding respect for the Constitution and the laws of the Philippines, and hopes for a prompt resolution of the present petition to further strengthen and enhance the investment environment considering the level of investment entailed, not only in financial terms by providing a definitive resolution and reliable

guidance for investors, whether Filipino or foreign, as basis for effective investment and business decisions. In their Consolidated Reply,20 petitioners contend that the instant petition is not mooted with the issuance of a Notice of Award to K-Water because the privatization of AHEPP is not finished until and unless the deed of absolute sale has been executed. They cite the ruling in David v. Arroyo,21 that courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review. Petitioners reiterate their legal standing to file the present suit in their capacity as taxpayers, or as Filipino citizens asserting the promotion and protection of a public right, aside from being directly injured by the proceedings of PSALM. As to the absence of Certification and Verification of NonForum Shopping from petitioner Bello in the file copy of PSALM, the same was a mere inadvertence in photocopying the same. On the matter of compliance with an open and transparent bidding, petitioners also reiterate as held in Chavez v. Public Estates Authority,22 that the Courts interpretation of public bidding applies to any law which requires public bidding, especially since Sec. 79 of the Government Auditing Code does not enumerate the data that must be disclosed to the public. PSALM should have followed the minimum requirements laid down in said case instead of adopting the "format generally used by government entities in their procurement of goods, infrastructure and consultancy services," considering that what was involved in Chavez is an amended Joint Venture Agreement which seeks to transfer title and ownership over government property. Petitioners point out that the requirement under COA Circular 89-296 as regards confidentiality covers only sealed proposals and not all information relating to the AHEPP privatization. PSALMs simple referral of IDEALS request letter to the counsel of K-Water is very telling, indicating PSALMs limited knowledge about a company it allowed to participate in the bidding and which even won the bidding. On the transfer of water rights to K-Water, petitioners reiterate that this violates the Water Code, and contrary to PSALMs statements, once NPC transfers its water permit to K-Water, in accordance with the terms of the Asset Purchase Agreement, NPC gives up its authority to extract or utilize water from the Angat River. Petitioners further assert that the terms of the sale of AHEPP allowing the buyer the operation and management of the Non-Power Components, constitutes a relinquishment of government control over the Angat Dam, in violation of Art. XII, Sec. 2 of the Constitution. PSALM likewise has not stated that all stakeholders have signed the Water Protocol. Such absence of a signed Water Protocol is alarming in the light of PSALMs pronouncement that the terms of the sale to K-Water would still subject to negotiation. Is PSALMs refusal to sign the Water Protocol part of its strategy to negotiate the terms of the sale with the bidders? If so, then PSALM is blithely and cavalierly bargaining away the Filipinos right to water. Responding to the claims of MWSS in its Comment, PSALM contends that MWSSs allegations regarding the bidding process is belied by MWSSs own admission that it held discussions with PSALM to highlight the important points and issues surrounding the AHEPP privatization that needed to be threshed out. Moreover, MWSS also admits having participated, along with other agencies and

stakeholders, various meetings and conferences relative to the drafting of a Memorandum of Agreement on the Angat Water Protocol. As regards the Angat Dam, PSALM emphasizes that MWSS never exercised jurisdiction and control over the said facility. PSALM points out that the Angat Dam was constructed in 1967, or four years before the enactment of Republic Act No. 6234, upon the commissioning thereof by the NPC and the consequent construction by Grogun, Inc., a private corporation. MWSS attempt to base its claim of jurisdiction over the Angat Dam upon its characterization of EPIRA as a general law must likewise fail. PSALM explains that EPIRA cannot be classified as a general law as it applies to a particular portion of the State, i.e., the energy sector. The EPIRA must be deemed an exception to the provision in the Revised MWSS Charter on MWSSs general jurisdiction over waterworks systems. PSALM stresses that pursuant to the EPIRA, PSALM took ownership of all existing NPC generation assets, liabilities, IPP contracts, real estate and other disposable assets, which necessarily includes the AHEPP Complex, of which the Angat Dam is part. As to the OGCC opinion cited by MWSS to support its position that control and management of the Angat Dam Complex should be turned over to MWSS, the OGCC had already issued a second opinion dated August 20, 2008 which clarified the tenor of its earlier Opinion No. 107, s. 2008, stating that "the disposal of the Angat HEPP by sale through public bidding the principal mode of disposition under EPIRA remains PSALMs primary option." Moreover, as pointed out by the National Economic Development Authority (NEDA) in its letter dated September 16, 2009, the ownership and operation of a hydropower plant goes beyond the mandate of MWSS. This view is consistent with the provisions of EPIRA mandating the transfer of ownership and control of NPC generation assets, IPP Contracts, real estate and other disposable assets to a private person or entity. Consequently, a transfer to another government entity of the said NPC assets would be a clear violation of the EPIRA. Even assuming such is allowed by EPIRA, it would not serve the objective of the EPIRA, i.e., that of liquidating all NPCs financial obligations and would merely transfer NPCs debts from the hands of one government entity to another, the funds that would be utilized by MWSS in the acquisition of the AHEPP would doubtless come from the pockets of the Filipino people. As regards the opposition of various local government units to the sale of the AHEPP, PSALM said that a forum was held specifically to address their concerns. After the said forum, these LGUs did not anymore raise the same concerns; such inaction on their part could be taken as an acquiescence to, and acceptance of, the explanations made by PSALM during the forum. PSALM had made it clear that it is only the AHEPP and not the Angat Dam which was being privatized. The same wrong premise underpinned the position of the CHR with its erroneous allegation that MWSS is allowed, under its Revised Charter, to operate and maintain a power plant. PSALM further contends that the sale of AHEPP to K-Water did not violate the Constitutions provision on the States natural resources and neither is the ruling in Manila Prince Hotel applicable as said case was decided under different factual circumstances. It reiterates that the AHEPP, being a generation asset, can be sold to a foreign entity, under the EPIRA, in accordance with the policy reforms said law introduced in the power sector; the EPIRA aims to enable open access in the electricity market and then enable the government to concentrate more fully on the supply of basic needs to the Filipino people. Owing to the competitive and open nature of the generation sector, foreign corporation may own generation assets.

Issues The present controversy raised the following issues: 1) Legal standing of petitioners; 2) Mootness of the petition; 3) Violation of the right to information; 4) Ownership of the AHEPP; 5) Violation of Sec. 2, Art. XII of the Constitution; 6) Violation of the Water Code provisions on the grant of water rights; and 7) Failure of PSALM to comply with Sec. 47 (e) of EPIRA. Mootness and Locus Standi PSALMs contention that the present petition had already been mooted by the issuance of the Notice of Award to K-Water is misplaced. Though petitioners had sought the immediate issuance of injunction against the bidding commenced by PSALM -- specifically enjoining it from proceeding to the next step of issuing a notice of award to any of the bidders -- they further prayed that PSALM be permanently enjoined from disposing of the AHEPP through privatization. The petition was thus filed not only as a means of enforcing the States obligation to protect the citizens "right to water" that is recognized under international law and legally enforceable under our Constitution, but also to bar a foreign corporation from exploiting our water resources in violation of Sec. 2, Art. XII of the 1987 Constitution. If the impending sale of the AHEPP to K-Water indeed violates the Constitution, it is the duty of the Court to annul the contract award as well as its implementation. As this Court held in Chavez v. Philippine Estates Authority,23 "supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution." We also rule that petitioners possess the requisite legal standing in filing this suit as citizens and taxpayers. "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged, alleging more than a generalized grievance. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions."24 This Court, however, has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.25 Thus, when the proceeding involves the assertion of a public right, the mere fact that the petitioner is a citizen satisfies the requirement of personal interest.26

There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of paramount importance to the public. That the continued availability of potable water in Metro Manila might be compromised if PSALM proceeds with the privatization of the hydroelectric power plant in the Angat Dam Complex confers upon petitioners such personal stake in the resolution of legal issues in a petition to stop its implementation. Moreover, we have held that if the petition is anchored on the peoples right to information on matters of public concern, any citizen can be the real party in interest. The requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right. There is no need to show any special interest in the result. It is sufficient that petitioners are citizens and, as such, are interested in the faithful execution of the laws.27 Violation of Right to Information The peoples right to information is provided in Section 7, Article III of the Constitution, which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied.) The peoples constitutional right to information is intertwined with the governments constitutional duty of full public disclosure of all transactions involving public interest.28 Section 28, Article II of the Constitution declares the State policy of full transparency in all transactions involving public interest, to wit: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Italics supplied.) The foregoing constitutional provisions seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. They are also essential to hold public officials "at all times x xx accountable to the people," for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.29 Consistent with this policy, the EPIRA was enacted to provide for "an orderly and transparent privatization" of NPCs assets and liabilities.30 Specifically, said law mandated that "all assets of NPC shall be sold in an open and transparent manner through public bidding."31 In Chavez v. Public Estates Authority32 involving the execution of an Amended Joint Venture Agreement on the disposition of reclaimed lands without public bidding, the Court held: x x xBefore the consummation of the contract, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the disposition of its property. These include the size, location, technical description and nature of the property being disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must

prepare all these data and disclose them to the public at the start of the disposition process, long before the consummation of the contract, because the Government Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process. Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the publics right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition. In Chavez v. PCGG, the Court ruled as follows: "Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information." (Emphasis supplied.) Chavez v. Public Estates Authority thus laid down the rule that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. In addition, Congress has prescribed other limitations on the right to information in several legislations.33 In this case, petitioners first letter dated April 20, 2010 requested for documents such as Terms of Reference and proposed bids submitted by the bidders. At that time, the bids were yet to be submitted at the bidding scheduled on April 28, 2010. It is also to be noted that PSALMs website carried news and updates on the sale of AHEPP, providing important information on bidding activities and clarifications regarding the terms and conditions of the Asset Purchase Agreement (APA) to be signed by PSALM and the winning bidder (Buyer).34 In Chavez v. National Housing Authority,35 the Court held that pending the enactment of an enabling law, the release of information through postings in public bulletin boards and government websites satisfies the constitutional requirement, thus: It is unfortunate, however, that after almost twenty (20) years from birth of the 1987 Constitution, there is still no enabling law that provides the mechanics for the compulsory duty of government agencies to disclose information on government transactions. Hopefully, the desired enabling law will finally see the light of day if and when Congress decides to approve the proposed "Freedom of Access to Information Act." In the meantime, it would suffice that government agencies post on their bulletin boards the documents incorporating the information on the steps and negotiations that produced the

agreements and the agreements themselves, and if finances permit, to upload said information on their respective websites for easy access by interested parties. Without any law or regulation governing the right to disclose information, the NHA or any of the respondents cannot be faulted if they were not able to disclose information relative to the SMDRP to the public in general.36 (Emphasis supplied.) The Court, however, distinguished the duty to disclose information from the duty to permit access to information on matters of public concern under Sec. 7, Art. III of the Constitution. Unlike the disclosure of information which is mandatory under the Constitution, the other aspect of the peoples right to know requires a demand or request for one to gain access to documents and paper of the particular agency. Moreover, the duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency.37 Such relief must be granted to the party requesting access to official records, documents and papers relating to official acts, transactions, and decisions that are relevant to a government contract. Here, petitioners second letter dated May 14, 2010 specifically requested for detailed information regarding the winning bidder, such as company profile, contact person or responsible officer, office address and Philippine registration. But before PSALM could respond to the said letter, petitioners filed the present suit on May 19, 2010. PSALMs letter-reply dated May 21, 2010 advised petitioners that their letter-re quest was referred to the counsel of K-Water. We find such action insufficient compliance with the constitutional requirement and inconsistent with the policy under EPIRA to implement the privatization of NPC assets in an "open and transparent" manner. PSALMs evasive response to the request for information was unjustified because all bidders were required to deliver documents such as company profile, names of authorized officers/representatives, financial and technical experience. Consequently, this relief must be granted to petitioners by directing PSALM to allow petitioners access to the papers and documents relating to the company profile and legal capacity of the winning bidder. Based on PSALMs own press releases, K-Water is described as a Korean firm with extensive experience in implementing and managing water resources development projects in South Korea, and also contributed significantly to the development of that countrys heavy and chemical industries and the modernization of its national industrial structure. AngatHEPP is Under the Jurisdiction of the Department of Energy Through NPC It must be clarified that though petitioners had alleged a co-ownership by virtue of the joint supervision in the operation of the Angat Complex by MWSS, NPC and NIA, MWSS actually recognized the ownership and jurisdiction of NPC over the hydroelectric power plant itself. While MWSS had initially sought to acquire ownership of the AHEPP without public bidding, it now prays that PSALM be ordered to turn over the possession and control of the said facility to MWSS. MWSS invokes its own authority or "special powers" by virtue of its general jurisdiction over waterworks systems, and in consideration of its substantial investments in the construction of two auxiliary units in the AHEPP, as well as the construction of the Umiray-AngatTransbasin Tunnel to supplement the water intake at the Angat Reservoir which resulted in increased power generation.

Records disclosed that as early as December 2005, following the decision of PSALMs Board of Directors to commence the sale process of the AHEPP along with Magat and AmlanHEPPs in August 2005, MWSS was actively cooperating and working with PSALM regarding the proposed Protocol for the Privatization of the AHEPP, specifically on the terms and conditions for the management, control and operation of the Angat Dam Complex taking into consideration the concerns of its concessionaires. A Technical Working Group (TWG) similar to that formed for the Operation and Management Agreement of Pantabangan and Magat dams was created, consisting of representatives from PSALM, MWSS and other concerned agencies, to formulate strategies for the effective implementation of the privatization of AHEPP and appropriate structure for the operation and management of the Angat Dam Complex.38 In March 2008, PSALM sought legal advice from the OGCC on available alternatives to a sale structure for the AHEPP. On May 27, 2008, then Government Corporate Counsel Alberto C. Agra issued Opinion No. 107, s. 200839 stating that PSALM is not limited to "selling" as a means of fulfilling its mandate under the EPIRA, and that in dealing with the AHEPP, PSALM has the following options: 1. Transfer the ownership, possession, control, and operation of the Angat Facility to another entity, which may or may not be a private enterprise, as specifically provided under Section 47 (e) of RA 9136; 2. Transfer the Angat Facility, through whatever form, to another entity for the purpose of protecting the public interest.40 The OGCC cited COA Circular No. 89-296 which provides that government property or assets that are no longer serviceable or needed "may be transferred to other government entities/agencies without cost or at an appraised value upon authority of the head or governing body of the agency or corporation, and upon due accomplishment of an Invoice and Receipt of Property." Pointing out the absence of any prohibition under R.A. No. 9136 and its IRR for PSALM to transfer the AHEPP to another government instrumentality, and considering that MWSS is allowed under its charter to acquire the said facility, the OGCC expressed the view that PSALM may, "in the interest of stemming a potential water crisis, turn over the ownership, operations and management of the Angat Facility to a qualified entity, such as the MWSS, without need of public bidding as the latter is also a government entity."41 Consequently, MWSS requested the Office of the President (OP) to exclude the AHEPP from the list of NPC assets to be privatized under the EPIRA. Said request was endorsed to the Department of Finance (DOF) which requested the National Economic Development Authority (NEDA) to give its comments. Meanwhile, on August 20, 2008, the OGCC issued a Clarification42 on its Opinion No. 107, s. 2008 stating that the tenor of the latter issuance was "permissive" and "necessarily, the disposal of the AHEPP by sale through public bidding the principal mode of disposition under x xx R.A. 9136 remains PSALMs primary option." The OGCC further explained its position, thus: If, in the exercise of PSALMs discretion, it determines that privatization by sale through public bidding is the best mode to fulfill its mandate under R.A. 9136, and that this mode will not contravene the States declared policy on water resources, then the same is legally permissible. Finally, in OGCC Opinion No. 107 s. 2008, this Office underscored "the overriding policy of the State x xx recognizing that water is vital to national development x xx and the crucial role which the Angat Facility plays in the uninterrupted and adequate supply and distribution of potable water to residents of

Metro Manila." This Office reiterates "the primacy of the States interest in mitigating the possible deleterious effects of an impending "water crisis" encompassing areas even beyond Metro Manila." Any transfer of the AHEPP to be undertaken by PSALM whether to a private or public entity must not contravene the States declared policy of ensuring the flow of clean, potable water under RA 6395 and 9136, and Presidential Decree 1067. Hence, said transfer and/or privatization scheme must ensure the preservation of the AHEPP as a vital source of water for Metro Manila and the surrounding provinces.43 (Emphasis supplied.) On September 16, 2009, NEDA Deputy Director General Rolando G. Tungpalan, by way of comment to MWSSs position, wrote the DOF stating that MWSSs concern on ensuring an uninterrupted and adequate supply of water for domestic use is amply protected and consistently addressed in the EPIRA. Hence, NEDA concluded that there appears to be no basis to exclude AHEPP from the list of NPC generation assets to be privatized and no compelling reason to transfer its management, operations and control to MWSS.44 NEDA further pointed out that: Ownership and operation of a hydropower plant, however, goes beyond the mandate of MWSS. To operate a power generation plant, given the sectors legislative setup would require certification and permits that has to be secured by the operator. MWSS does not have the technical capability to undertake the operation and maintenance of the AHEPP nor manage the contract of a contracted private party to undertake the task for MWSS. While MWSS may tap NPC to operate and maintain the AHEPP, this, similar to contracting out a private party, may entail additional transaction costs, and ultimately result to higher generation rates.45 (Emphasis supplied.) Thereafter, MWSS sought the support of the DPWH in a letter dated September 24, 2009 addressed to then Secretary Hermogenes E. Ebdane, Jr., for the exclusion of the AHEPP from the list of NPC assets to be privatized and instead transfer the ownership, possession and control thereof to MWSS with reasonable compensation. Acting on the said request, Secretary Ebdane, Jr. wrote a memorandum for the President recommending that "the Angat Dam be excluded from the list of NPC assets to be privatized, and that the ownership, management and control of the Dam be transferred from NPC to MWSS, with reasonable compensation."46 Based on the foregoing factual backdrop, there seems to be no dispute as to the complete jurisdiction of NPC over the government-owned Angat Dam and AHEPP. The Angat Reservoir and Dam were constructed from 1964 to 1967 and have become operational since 1968. They have multiple functions: 1) To provide irrigation to about 31,000 hectares of land in 20 municipalities and towns in Pampanga and Bulacan; 2) To supply the domestic and industrial water requirements of residents in Metro Manila; 3) To generate hydroelectric power to feed the Luzon Grid; and 4) To reduce flooding to downstream towns and villages.47 The Angat Dam is a rockfill dam with a spillway equipped with three gates at a spilling level of 219 meters and has storage capacity of about 850 million cubic meters. Water supply to the MWSS is

released through five auxiliary turbines where it is diverted to the two tunnels going to the Ipo Dam.48 The Angat Dam is one of the dams under the management of NPC while the La Mesa and Ipo dams are being managed by MWSS. MWSS is a government corporation existing by virtue of R.A. No. 6234.49 NAPOCOR or NPC is also a government-owned corporation created under Commonwealth Act (C.A.) No. 120,50 which, among others, was vested with the following powers under Sec. 2, paragraph (g): (g) To construct, operate and maintain power plants, auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power stations and substations, and other works for the purpose of developing hydraulic power from any river, creek, lake, spring and waterfall in the Philippines and supplying such power to the inhabitants thereof; to acquire, construct, install, maintain, operate and improve gas, oil, or steam engines, and/or other prime movers, generators and other machinery in plants and/or auxiliary plants for the production of electric power; to establish, develop, operate, maintain and administer power and lighting system for the use of the Government and the general public; to sell electric power and to fix the rates and provide for the collection of the charges for any service rendered: Provided, That the rates of charges shall not be subject to revision by the Public Service Commission; x x x x (Emphasis supplied.) On September 10, 1971, R.A. No. 6395 was enacted which revised the charter of NPC, extending its corporate life to the year 2036. NPC thereafter continued to exercise complete jurisdiction over dams and power plants including the Angat Dam, Angat Reservoir and AHEPP. While the NPC was expressly granted authority to construct, operate and maintain power plants, MWSS was not vested with similar function. Section 3 (f), (o) and (p) of R.A. No. 6234 provides that MWSSs powers and attributes include the following (f) To construct, maintain, and operate dams, reservoirs, conduits, aqueducts, tunnels, purification plants, water mains, pipes, fire hydrants, pumping stations, machineries and other waterworks for the purpose of supplying water to the inhabitants of its territory, for domestic and other purposes; and to purify, regulate and control the use, as well as prevent the wastage of water; xxxx (o) To assist in the establishment, operation and maintenance of waterworks and sewerage systems within its jurisdiction under cooperative basis; (p) To approve and regulate the establishment and construction of waterworks and sewerage systems in privately owned subdivisions within its jurisdiction; x xx. (Emphasis supplied.) On December 9, 1992, by virtue of R.A. No. 7638,51 NPC was placed under the Department of Energy (DOE) as one of its attached agencies. Aside from its ownership and control of the Angat Dam and AHEPP, NPC was likewise mandated to exercise complete jurisdiction and control over its watershed, pursuant to Sec. 2 (n) and (o) of R.A. No. 6395 for development and conservation purposes: (n) To exercise complete jurisdiction and control over watersheds surrounding the reservoirs of plants and/or projects constructed or proposed to be constructed by the Corporation. Upon determination by the Corporation of the areas required for watersheds for a specific project, the Bureau of Forestry, the

Reforestation Administration and the Bureau of Lands shall, upon written advice by the Corporation, forthwith surrender jurisdiction to the Corporation of all areas embraced within the watersheds, subject to existing private rights, the needs of waterworks systems, and the requirements of domestic water supply; (o) In the prosecution and maintenance of its projects, the Corporation shall adopt measures to prevent environmental pollution and promote the conservation, development and maximum utilization of natural resources; and x x x x (Emphasis supplied.) On December 4, 1965, Presidential Proclamation No. 505 was issued amending Proclamation No. 71 by transferring the administration of the watersheds established in Montalban, San Juan del Monte, Norzagaray, Angat, San Rafael, Pearanda and Infanta, Provinces of Rizal, Bulacan, Nueva Ecija and Quezon, to NPC. Subsequent executive issuances Presidential Decree (P.D.) No. 1515 which was signed in June 1978 and amended by P.D. No. 1749 in December 1980 led to the creation of the NPC Watershed Management Division which presently has 11 watershed areas under its management.52 Privatization of AHEPP Mandatory Under EPIRA With the advent of EPIRA in 2001, PSALM came into existence for the principal purpose of managing the orderly sale, privatization and disposition of generation assets, real estate and other disposable assets of the NPC including IPP Contracts. Accordingly, PSALM was authorized to take title to and possession of, those assets transferred to it. EPIRA mandated that all such assets shall be sold through public bidding with the exception of Agus and Pulangui complexes in Mindanao, the privatization of which was left to the discretion of PSALM in consultation with Congress,53 thus: Sec. 47. NPC Privatization. Except for the assets of SPUG, the generation assets, real estate, and other disposable assets as well as IPP contracts of NPC shall be privatized in accordance with this Act. Within six (6) months from the effectivity of this Act, the PSALM Corp. shall submit a plan for the endorsement by the Joint Congressional Power Commission and the approval of the President of the Philippines, on the total privatization of the generation assets, x xx of NPC and thereafter, implement the same, in accordance with the following guidelines, except as provided for in paragraph (f) herein: x xxx (d) All assets of NPC shall be sold in an open and transparent manner through public bidding, x xx; x xxx (f) The Agus and the Pulangui complexes in Mindanao shall be excluded from among the generation companies that will be initially privatized. Their ownership shall be transferred to the PSALM Corp. and both shall continue to be operated by the NPC. Said complexes may be privatized not earlier than ten (10) years from the effectivity of this Act, x xx.The privatization of Agus and Pulangui complexes shall be left to the discretion of PSALM Corp. in consultation with Congress; x xxx (Emphasis supplied.)

The intent of Congress not to exclude the AHEPP from the privatization of NPC generation assets is evident from the express provision exempting only the aforesaid two power plants in Mindanao. Had the legislature intended that PSALM should likewise be allowed discretion in case of NPC generation assets other than those mentioned in Sec. 47, it could have explicitly provided for the same. But the EPIRA exempted from privatization only those two plants in Mindanao and the Small Power Utilities Group (SPUG).54 Expressiouniusestexclusioalterius, the express inclusion of one implies the exclusion of all others.55 It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others. The rule is expressed in the familiar maxim, expressiouniusestexclusioalterius. The rule of expressiouniusestexclusioalterius is formulated in a number of ways. One variation of the rule is principle that what is expressed puts an end to that which is implied. Expressiumfacitcessaretacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. x xxx The rule of expressiouniusestexclusioalterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon ones own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.56 The Court therefore cannot sustain the position of petitioners, adopted by respondent MWSS, that PSALM should have exercised the discretion not to proceed with the privatization of AHEPP, or at least the availability of the option to transfer the said facility to another government entity such as MWSS. Having no such discretion in the first place, PSALM committed no grave abuse of discretion when it commenced the sale process of AHEPP pursuant to the EPIRA. In any case, the Court finds that the operation and maintenance of a hydroelectric power plant is not among the statutorily granted powers of MWSS. Although MWSS was granted authority to construct and operate dams and reservoirs, such was for the specific purpose of supplying water for domestic and other uses, and the treatment, regulation and control of water usage, and not power generation.57 Moreover, since the sale of AHEPP by PSALM merely implements the legislated reforms for the electric power industry through schemes that aim "to enhance the inflow of private capital and broaden the ownership base of the power generation, transmission and distribution sectors,"58 the proposed transfer to MWSS which is another government entity contravenes that State policy. COA Circular No. 89-296 likewise has no application to NPC generating assets which are still serviceable and definitely needed by the Government for the purpose of liquidating NPCs accumulated debts amounting to billions in US Dollars. Said administrative circular cannot prevail over the EPIRA, a special law governing the disposition of government properties under the jurisdiction of the DOE through NPC. Sale of Government-Owned AHEPP to a Foreign Corporation Not Prohibited But Only Filipino Citizens and Corporations 60% of whose capital is owned by Filipinos

May be Granted Water Rights The core issue concerns the legal implications of the acquisition by K-Water of the AHEPP in relation to the constitutional policy on our natural resources. Sec. 2, Art. XII of the 1987 Constitution provides in part: SEC.2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twentyfive years, and under such terms and conditions as may be provided by law. In case of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. x xxx (Emphasis supplied.) The States policy on the management of water resources is implemented through the regulation of water rights. Presidential Decree No. 1067, otherwise known as "The Water Code of the Philippines" is the basic law governing the ownership, appropriation utilization, exploitation, development, conservation and protection of water resources and rights to land related thereto. The National Water Resources Council (NWRC) was created in 1974 under P.D. No. 424 and was subsequently renamed as National Water Resources Board (NWRB) pursuant to Executive Order No. 124-A.59 The NWRB is the chief coordinating and regulating agency for all water resources management development activities which is tasked with the formulation and development of policies on water utilization and appropriation, the control and supervision of water utilities and franchises, and the regulation and rationalization of water rates.60 The pertinent provisions of Art. 3, P.D. No. 1067 provide: Art. 3. The underlying principles of this code are: a. All waters belong to the State. b. All waters that belong to the State can not be the subject to acquisitive prescription. c. The State may allow the use or development of waters by administrative concession. d. The utilization, exploitation, development, conservation and protection of water resources shall be subject to the control and regulation of the government through the National Water Resources Council x xx

e. Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country. x xxx Art. 9. Waters may be appropriated and used in accordance with the provisions of this Code. Appropriation of water, as used in this Code, is the acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for any purpose allowed by law. Art. 10. Water may be appropriated for the following purposes: x xxx (d) Power generation x xxx Art. 13. Except as otherwise herein provided, no person including government instrumentalities or government-owned or controlled corporations, shall appropriate water without a water right, which shall be evidenced by a document known as a water permit. Water right is the privilege granted by the government to appropriate and use water. x xxx Art. 15. Only citizens of the Philippines, of legal age, as well as juridical persons, who are duly qualified by law to exploit and develop water resources, may apply for water permits. (Emphasis supplied.) It is clear that the law limits the grant of water rights only to Filipino citizens and juridical entities duly qualified by law to exploit and develop water resources, including private corporations with sixty percent of their capital owned by Filipinos. In the case of Angat River, the NWRB has issued separate water permits to MWSS, NPC and NIA.61 Under the EPIRA, the generation of electric power, a business affected with public interest, was opened to private sector and any new generation company is required to secure a certificate of compliance from the Energy Regulatory Commission (ERC), as well as health, safety and environmental clearances from the concerned government agencies. Power generation shall not be considered a public utility operation,62 and hence no franchise is necessary. Foreign investors are likewise allowed entry into the electric power industry. However, there is no mention of water rights in the privatization of multipurpose hydropower facilities. Section 47 (e) addressed the issue of water security, as follows: (e) In cases of transfer of possession, control, operation or privatization of multi-purpose hydro facilities, safeguards shall be prescribed to ensure that the national government may direct water usage in cases of shortage to protect potable water, irrigation, and all other requirements imbued with public interest;

x xxx (Emphasis supplied.) This provision is consistent with the priority accorded to domestic and municipal uses of water63 under the Water Code, thus: Art. 22. Between two or more appropriators of water from the same sources of supply, priority in time of appropriation shall give the better right, except that in times of emergency the use of water for domestic and municipal purposes shall have a better right over all other uses; Provided, That, where water shortage is recurrent and the appropriator for municipal use has a lower priority in time of appropriation, then it shall be his duty to find an alternative source of supply in accordance with conditions prescribed by the Board. (Emphasis supplied.) Rule 23, Section 6 of the Implementing Rules and Regulations (IRR) of the EPIRA provided for the structure of appropriation of water resources in multi-purpose hydropower plants which will undergo privatization, as follows: Section 6. Privatization of Hydroelectric Generation Plants. (a) Consistent with Section 47(e) of the Act and Section 4(f) of this Rule, the Privatization of hydro facilities of NPC shall cover the power component including assignable long-term water rights agreements for the use of water, which shall be passed onto and respected by the buyers of the hydroelectric power plants. (b) The National Water Resources Board (NWRB) shall ensure that the allocation for irrigation, as indicated by the NIA and requirements for domestic water supply as provided for by the appropriate Local Water District(s) are recognized and provided for in the water rights agreements. NPC or PSALM may also impose additional conditions in the shareholding agreement with the winning bidders to ensure national security, including, but not limited to, the use of water during drought or calamity. (c) Consistent with Section 34(d) of the Act, the NPC shall continue to be responsible for watershed rehabilitation and management and shall be entitled to the environmental charge equivalent to onefourth of one centavo per kilowatt-hour sales (P0.0025/kWh), which shall form part of the Universal Charge. This environmental fund shall be used solely for watershed rehabilitation and management and shall bemanaged by NPC under existing arrangements. NPC shall submit an annual report to the DOE detailing the progress of the water shed rehabilitation program. (d) The NPC and PSALM or NIA, as the case may be, shall continue to be responsible for the dam structure and all other appurtenant structures necessary for the safe and reliable operation of the hydropower plants. The NPC and PSALM or NIA, as the case may be, shall enter into an operations and maintenance agreement with the private operator of the power plant to cover the dam structure and all other appurtenant facilities. (Emphasis supplied.) In accordance with the foregoing implementing regulations, and in furtherance of the Asset Purchase Agreement64 (APA), PSALM, NPC and K-Water executed on April 28, 2010 an Operations and Maintenance Agreement65 (O & M Agreement) for the administration, rehabilitation, operation, preservation and maintenance, by K-Water as the eventual owner of the AHEPP, of the Non-Power Components meaning the Angat Dam, non-power equipment, facilities, installations, and appurtenant devices and structures, including the water sourced from the Angat Reservoir.

It is the position of PSALM that as the new owner only of the hydroelectric power plant, K-Water will be a mere operator of the Angat Dam. In the power generation activity, K-Water will have to utilize the waters already extracted from the river and impounded on the dam. This process of generating electric power from the dam water entering the power plant thus does not constitute appropriation within the meaning of natural resource utilization in the Constitution and the Water Code. The operation of a typical hydroelectric power plant has been described as follows: Hydroelectric energy is produced by the force of falling water. The capacity to produce this energy is dependent on both the available flow and the height from which it falls. Building up behind a high dam, water accumulates potential energy. This is transformed into mechanical energy when the water rushes down the sluice and strikes the rotary blades of turbine. The turbine's rotation spins electromagnets which generate current in stationary coils of wire. Finally, the current is put through a transformer where the voltage is increased for long distance transmission over power lines.66 Foreign ownership of a hydropower facility is not prohibited under existing laws. The construction, rehabilitation and development of hydropower plants are among those infrastructure projects which even wholly-owned foreign corporations are allowed to undertake under the Amended Build-OperateTransfer (Amended BOT) Law (R.A. No. 7718).67 Beginning 1987, the policy has been openness to foreign investments as evident in the fiscal incentives provided for the restructuring and privatization of the power industry in the Philippines, under the Power Sector Restructuring Program (PSRP) of the Asian Development Bank. The establishment of institutional and legal framework for the entry of private sector in the power industry began with the issuance by President Corazon C. Aquino of Executive Order No. 215 in 1987. Said order allowed the entry of private sector the IPPs to participate in the power generation activities in the country. The entry of IPPs was facilitated and made attractive through the first BOT Law in 1990 (R.A. No. 6957) which aimed to "minimize the burden of infrastructure projects on the national government budget, minimize external borrowing for infrastructure projects, and use the efficiency of the private sector in delivering a public good." In 1993, the Electric Power Crisis Act was passed giving the President emergency powers to urgently address the power crisis in the country.68 The full implementation of the restructuring and privatization of the power industry was achieved when Congress passed the EPIRA in 2001. With respect to foreign investors, the nationality issue had been framed in terms of the character or nature of the power generation process itself, i.e., whether the activity amounts to utilization of natural resources within the meaning of Sec. 2, Art. XII of the Constitution. If so, then foreign companies cannot engage in hydropower generation business; but if not, then government may legally allow even foreign-owned companies to operate hydropower facilities. The DOJ has consistently regarded hydropower generation by foreign entities as not constitutionally proscribed based on the definition of water appropriation under the Water Code, thus: Opinion No. 173, 1984 This refers to your request for opinion on the possibility of granting water permits to foreign corporations authorized to do business in the Philippines x xx

x xxx x xx while the Water Code imposes a nationality requirement for the grant of water permits, the same refers to the privilege "to appropriate and use water." This should be interpreted to mean the extraction of water from its natural source (Art. 9, P.D. No. 1067). Once removed therefrom, they cease to be a part of the natural resources of the country and are the subject of ordinary commerce and may be acquired by foreigners (Op. No. 55, series of 1939). x xx in case of a contract of lease, the water permit shall be secured by the lessor and included in the lease as an improvement. The water so removed from the natural source may be appropriated/used by the foreign corporation leasing the property. Opinion No. 14, S. 1995 The nationality requirement imposed by the Water Code refers to the privilege "to appropriate and use water." This, we have consistently interpreted to mean the extraction of water directly from its natural source. Once removed from its natural source the water ceases to be a part of the natural resources of the country and may be subject of ordinary commerce and may even be acquired by foreigners. (Secretary of Justice Op. No. 173, s. 1984; No. 24, s. 1989; No. 100 s. 1994) In fine, we reiterate our earlier view that a foreign entity may legally process or treat water after its removal from a natural source by a qualified person, natural or juridical. Opinion No. 122, s. 1998 The crucial issue at hand is the determination of whether the utilization of water by the power plant to be owned and operated by a foreign-owned corporation (SRPC) will violate the provisions of the Water Code. As proposed, the participation of SRPC to the arrangement commences upon construction of the power station, consisting of a dam and a power plant. After the completion of the said station, its ownership and control shall be turned over to NPC. However, SRPC shall remain the owner of the power plant and shall operate it for a period of twenty-five (25) years. It appears that the dam, which will be owned and controlled by NPC, will block the natural flow of the river. The power plant, which is situated next to it, will entirely depend upon the dam for its water supply which will pass through an intake gate situated one hundred (100) meters above the riverbed. Due to the distance from the riverbed, water could not enter the power plant absent the dam that traps the flow of the river. It appears further that no water shall enter the power tunnel without specific dispatch instructions from NPC, and such supplied water shall be used only by SRPC for power generation and not for any other purpose. When electricity is generated therein, the same shall be supplied to NPC for distribution to the public. These facts x xx viewed in relation to the Water Code, specifically Article 9 thereof, x xx clearly show that there is no circumvention of the law. This Department has declared that the nationality requirement imposed by the Water Code refers to the privilege "to appropriate and use water" and has interpreted this phrase to mean the extraction of water directly from its natural source (Secretary of Justice Opinion No. 14, s. 1995). "Natural" is defined as that which is produced without aid of stop, valves, slides, or other supplementary means (see Websters New International Dictionary, Second Edition, p. 1630). The water that is used by the power plant could not enter the intake gate without the dam, which is a man-made structure. Such being the case,

the source of the water that enters the power plant is of artificial character rather than natural. This Department is consistent in ruling, that once water is removed from its natural source, it ceases to be a part of the natural resources of the country and may be the subject of ordinary commerce and may even be acquired by foreigners. (Ibid., No. 173, s. 1984; No. 24, s. 1989; No. 100, s. 1994). It is also significant to note that NPC, a government-owned and controlled corporation, has the effective control over all elements of the extraction process, including the amount and timing thereof considering that x xx the water will flow out of the power tunnel and through the power plant, to be used for the generation of electricity, only when the Downstream Gates are opened, which occur only upon the specific water release instructions given by NPC to SRPC. This specific feature of the agreement, taken together with the above-stated analysis of the source of water that enters the plant, support the view that the nationality requirement embodied in Article XII, Section 2 of the present Constitution and in Article 15 of the Water Code, is not violated.69 (Emphasis supplied.) The latest executive interpretation is stated in DOJ Opinion No. 52, s. 2005 which was rendered upon the request of PSALM in connection with the proposed sale structure for the privatization of hydroelectric and geothermal generation assets (Gencos) of NPC. PSALM sought a ruling on the legality of its proposed privatization scheme whereby the non-power components (dam, reservoir and appurtenant structures and watershed area) shall be owned by the State through government entities like NPC or NIA which shall exercise control over the release of water, while the ownership of the power components (power plant and related facilities) is open to both Filipino citizens/corporations and 100% foreign-owned corporations. Sustaining the position of PSALM, then Secretary Raul M. Gonzalez opined: Premised on the condition that only the power components shall be transferred to the foreign bidders while the non-power components/structures shall be retained by state agencies concerned, we find that both PSALMs proposal and position are tenable. x xxx x xx as ruled in one case by a U.S. court: Where the State of New York took its natural resources consisting of Saratoga Spring and, through a bottling process, put those resources into preserved condition where they could be sold to the public in competition with private waters, the state agencies were not immune from federal taxes imposed upon bottled waters on the theory that state was engaged in the sale of "natural resources." Applied to the instant case, and construed in relation to the earlier-mentioned constitutional inhibition, it would appear clear that while both waters and geothermal steam are, undoubtedly "natural resources", within the meaning of Section 2 Article XII of the present Constitution, hence, their exploitation, development and utilization should be limited to Filipino citizens or corporations or associations at least sixty per centum of the capital of which is owned by Filipino citizens, the utilization thereof can be opened even to foreign nationals, after the same have been extracted from the source by qualified persons or entities. The rationale is because, since they no longer form part of the natural resources of the country, they become subject to ordinary commerce.

A contrary interpretation, i.e., that the removed or extracted natural resources would remain inalienable especially to foreign nationals, can lead to absurd consequences, e.g. that said waters and geothermal steam, and any other extracted natural resources, cannot be acquired by foreign nationals for sale within or outside the country, which could not have been intended by the framers of the Constitution. The fact that under the proposal, the non-power components and structures shall be retained and maintained by the government entities concerned is, to us, not only a sufficient compliance of constitutional requirement of "full control and supervision of the State" in the exploitation, development and utilization of natural resources. It is also an enough safeguard against the evil sought to be avoided by the constitutional reservation x xx.70 (Italics in the original, emphasis supplied.) Appropriation of water, as used in the Water Code refers to the "acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for any purpose allowed by law."71 This definition is not as broad as the concept of appropriation of water in American jurisprudence: An appropriation of water flowing on the public domain consists in the capture, impounding, or diversion of it from its natural course or channel and its actual application to some beneficial use private or personal to the appropriator, to the entire exclusion (or exclusion to the extent of the water appropriated) of all other persons. x xx72 On the other hand, "water right" is defined in the Water Code as the privilege granted by the government to appropriate and use water.73 Blacks Law Dictionary defined "water rights" as "a legal right, in the nature of a corporeal hereditament, to use the water of a natural stream or water furnished through a ditch or canal, for general or specific purposes, such as irrigation, mining, power, or domestic use, either to its full capacity or to a measured extent or during a defined portion of the time," or "the right to have the water flow so that some portion of it may be reduced to possession and be made private property of individual, and it is therefore the right to divert water from natural stream by artificial means and apply the same to beneficial use."74 Under the Water Code concept of appropriation, a foreign company may not be said to be "appropriating" our natural resources if it utilizes the waters collected in the dam and converts the same into electricity through artificial devices. Since the NPC remains in control of the operation of the dam by virtue of water rights granted to it, as determined under DOJ Opinion No. 122, s. 1998, there is no legal impediment to foreign-owned companies undertaking the generation of electric power using waters already appropriated by NPC, the holder of water permit. Such was the situation of hydropower projects under the BOT contractual arrangements whereby foreign investors are allowed to finance or undertake construction and rehabilitation of infrastructure projects and/or own and operate the facility constructed. However, in case the facility requires a public utility franchise, the facility operator must be a Filipino corporation or at least 60% owned by Filipino.75 With the advent of privatization of the electric power industry which resulted in its segregation into four sectors -- generation, transmission, distribution and supply NPCs generation and transmission functions were unbundled. Power generation and transmission were treated as separate sectors governed by distinct rules under the new regulatory framework introduced by EPIRA. The National Transmission Corporation (TRANSCO) was created to own and operate the transmission assets and perform the transmission functions previously under NPC. While the NPC continues to undertake missionary electrification programs through the SPUG, PSALM was also created to liquidate the assets

and liabilities of NPC. Under the EPIRA, NPCs generation function was restricted as it was allowed to "generate and sell electricity only from the undisposed generating assets and IPP contracts of PSALM" and was prohibited from incurring "any new obligations to purchase power through bilateral contracts with generation companies or other suppliers."76 PSALM, on the other hand, was tasked "to structure the sale, privatization or disposition of NPC assets and IPP contracts and/or their energy output based on such terms and conditions which shall optimize the value and sale prices of said assets."77 In the case of multi-purpose hydropower plants, the IRR of R.A. No. 9136 provided that their privatization would extend to water rights which shall be transferred or assigned to the buyers thereof, subject to safeguards mandated by Sec. 47(e) to enable the national government to direct water usage in cases of shortage to protect water requirements imbued with public interest. Accordingly, the Asset Purchase Agreement executed between PSALM and K-Water stipulated: 2.04 Matters Relating to the Non-Power Component x xxx Matters relating to Water Rights NPC has issued a certification (the "Water Certification") wherein NPC consents, subject to Philippine Law, to the (i) transfer of the Water Permit to the BUYER or its Affiliate, and (ii) use by the BUYER or its Affiliate of the water covered by the Water Permit from Closing Date up to a maximum period of one (1) year thereafter to enable the BUYER to appropriate and use water sourced from Angat reservoir for purposes of power generation; provided, that should the consent or approval of any Governmental Body be required for either (i) or (ii), the BUYER must secure such consent or approval. The BUYER agrees and shall fully comply with the Water Permit and the Water Certification. x xx x xxx Multi-Purpose Facility The BUYER is fully aware that the Non-Power Components is a multi-purpose hydro-facility and the water is currently being appropriated for domestic use, municipal use, irrigation and power generation. Anything in this Agreement notwithstanding, the BUYER shall, at all times even after the Payment Date, fully and faithfully comply with Philippine Law, including the Instructions, the Rule Curve and Operating Guidelines and the Water Protocol.78 (Emphasis supplied.) Lease or transfer of water rights is allowed under the Water Code, subject to the approval of NWRB after due notice and hearing.79 However, lessees or transferees of such water rights must comply with the citizenship requirement imposed by the Water Code and its IRR. But regardless of such qualification of water permit holders/transferees, it is to be noted that there is no provision in the EPIRA itself authorizing the NPC to assign or transfer its water rights in case of transfer of operation and possession of multi-purpose hydropower facilities. Since only the power plant is to be sold and privatized, the operation of the non-power components such as the dam and reservoir, including the maintenance of the surrounding watershed, should remain under the jurisdiction and control of NPC which continue to be a government corporation. There is therefore no necessity for NPC to transfer its

permit over the water rights to K-Water. Pursuant to its purchase and operation/management contracts with K-Water, NPC may authorize the latter to use water in the dam to generate electricity. NPCs water rights remain an integral aspect of its jurisdiction and control over the dam and reservoir. That the EPIRAitselfdid not ordain any transfer of water rights leads us to infer that Congress intended NPC to continue exercising full supervision over the dam, reservoir and, more importantly, to remain in complete control of the extraction or diversion of water from the Angat River. Indeed, there can be no debate that the best means of ensuring that PSALM/NPC can fulfill the duty to prescribe "safeguards to enable the national government to direct water usage to protect potable water, irrigation, and all other requirements imbued with public interest" is for it to retain the water rights over those water resources from where the dam waters are extracted. In this way, the States full supervision and control over the countrys water resources is also assured notwithstanding the privatized power generation business. Section 6 (a) of the IRR of R.A. No. 9136 insofar as it directs the transfer of water rights in the privatization of multi-purpose hydropower facilities, is thus merely directory. It is worth mentioning that the Water Code explicitly provides that Filipino citizens and juridical persons who may apply for water permits should be "duly qualified by law to exploit and develop water resources." Thus, aside from the grant of authority to construct and operate dams and power plants, NPCs Revised Charter specifically authorized it (f) To take water from any public stream, river, creek, lake, spring or waterfall in the Philippines, for the purposes specified in this Act; to intercept and divert the flow of waters from lands of riparian owners and from persons owning or interested in waters which are or may be necessary for said purposes, upon payment of just compensation therefor; to alter, straighten, obstruct or increase the flow of water in streams or water channels intersecting or connecting therewith or contiguous to its works or any part thereof: Provided, That just compensation shall be paid to any person or persons whose property is, directly or indirectly, adversely affected or damaged thereby.80 The MWSS is likewise vested with the power to construct, maintain and operate dams and reservoirs for the purpose of supplying water for domestic and other purposes, as well to construct, develop, maintain and operate such artesian wells and springs as may be needed in its operation within its territory.81 On the other hand, NIA, also a water permit holder in Angat River, is vested with similar authority to utilize water resources, as follows: (b) To investigate all available and possible water resources in the country for the purpose of utilizing the same for irrigation, and to plan, design and construct the necessary projects to make the ten to twenty-year period following the approval of this Act as the Irrigation Age of the Republic of the Philippines;82 (c) To construct multiple-purpose water resources projects designed primarily for irrigation, and secondarily for hydraulic power development and/or other uses such as flood control, drainage, land reclamation, domestic water supply, roads and highway construction and reforestation, among others, provided, that the plans, designs and the construction thereof, shall be undertaken in coordination with the agencies concerned;83

To reiterate, there is nothing in the EPIRAwhich declares that it is mandatory for PSALM or NPC to transfer or assign NPCs water rights to buyers of its multi-purpose hydropower facilities as part of the privatization process. While PSALM was mandated to transfer the ownership of all hydropower plants except those mentioned in Sec. 47 (f), any transfer of possession, operation and control of the multipurpose hydropower facilities, the intent to preserve water resources under the full supervision and control of the State is evident when PSALM was obligated to prescribe safeguards to enable the national government to direct water usage to domestic and other requirements "imbued with public interest." There is no express requirement for the transfer of water rights in all cases where the operation of hydropower facilities in a multi-purpose dam complex is turned over to the private sector. As the new owner of the AHEPP, K-Water will have to utilize the waters in the Angat Dam for hydropower generation. Consistent with the goals of the EPIRA, private entities are allowed to undertake power generation activities and acquire NPCs generation assets. But since only the hydroelectric power plants and appurtenances are being sold, the privatization scheme should enable the buyer of a hydroelectric power plant in NPCs multi-purpose dam complex to have beneficialuse of the waters diverted or collected in the Angat Dam for its hydropower generation activities, and at the same time ensure that the NPC retains full supervision and control over the extraction and diversion of waters from the Angat River. In fine, the Court rules that while the sale of AHEPP to a foreign corporation pursuant to the privatization mandated by the EPIRA did not violate Sec. 2, Art. XII of the 1987 Constitution which limits the exploration, development and utilization of natural resources under the full supervision and control of the State or the States undertaking the same through joint venture, co-production or production sharing agreements with Filipino corporations 60% of the capital of which is owned by Filipino citizens, the stipulation in the Asset Purchase Agreement and Operations and Maintenance Agreement whereby NPC consents to the transfer of water rights to the foreign buyer, K-Water, contravenes the aforesaid constitutional provision and the Water Code.1wphi1 Section 6, Rule 23 of the IRR of EPIRA, insofar as it ordered NPCs water rights in multi-purpose hydropower facilities to be included in the sale thereof, is declared as merely directoryand not an absolute condition in the privatization scheme. In this case, we hold that NPC shall continue to be the holder of the water permit even as the operational control and day-to-day management of the AHEPP is turned over to K-Water under the terms and conditions of their APA and O & M Agreement, whereby NPC grants authority to K-Water to utilize the waters diverted or collected in the Angat Dam for hydropower generation. Further, NPC and K-Water shall faithfully comply with the terms and conditions of the Memorandum of Agreement on Water Protocol, as well as with such other regulations and issuances of the NWRB governing water rights and water usage. WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is PARTLY GRANTED. The following DISPOSITIONS are in ORDER: 1) The bidding conducted and the Notice of Award issued by PSALM in favor of the winning bidder, KOREA WATER RESOURCES CORPORATION (K-WATER), are declared VALID and LEGAL;

2) PSALM is directed to FURNISH the petitioners with copies of all documents and records in its files pertaining to K-Water; 3) Section 6 (a), Rule 23, IRR of the EPIRA, is hereby declared as merely DIRECTORY, and not an absolute condition in all cases where NPC-owned hydropower generation facilities are privatized; 4) NPC shall CONTINUE to be the HOLDER of Water Permit No. 6512 issued by the National Water Resources Board. NPC shall authorize K-Water to utilize the waters in the Angat Dam for hydropower generation, subject to the NWRBs rules and regulations governing water right and usage. The Asset Purchase Agreement and Operation & Management Agreement between NPC/PSALM and K- Water are thus amended accordingly. Except for the requirement of securing a water permit, K-Water remains BOUND by its undertakings and warranties under the APA and O & M Agreement; 5) NPC shall be a CO-PARTY with K-Water in the Water Protocol Agreement with MWSS and NIA, and not merely as a conforming authority or agency; and 6) The Status Quo Ante Order issued by this Court on May 24, 2010 is hereby LIFTED and SET ASIDE. No pronouncement as to costs. SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice WE CONCUR:

iiiG.R. No. 129900

October 2, 2001

JANE CARAS y SOLITARIO, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. QUISUMBING, J.: This is an appeal by certiorari from the decision of the Court of Appeals1 which affirmed the decision of the Regional Trial Court of Quezon City, Branch 92, finding petitioner Jane Caras y Solitario guilty of 15 counts of Batas Pambansa Blg. 22 (Bouncing Checks Law) violations. The facts of the case as found by the Court of Appeals are as follows:

JANE S. CARAS has appealed from the judgment of conviction in fifteen (15) related cases of Violation of the Bouncing Checks Law. The first Information (docketed as Criminal Case No. Q-93-44420) against her reads as follows: That on or about the 5th day of January 1992 in Quezon City, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Chu Yang T. Atienza to apply on account or for value PCI Bank, Commonwealth Ave. Branch Check No. 017744 dated March 18, 1992 payable to the order of CASH in the amount of P14,125.00 Philippine Currency, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Chu Yang T. Atienza the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. In Criminal Case Nos. Q-93-44421 to Q-93-44434, the informations were similarly worded as above, except for the respective amounts involved, dates, numbers of checks and dates of commission. When arraigned on August 16, 1993, accused Caras pleaded "not guilty". Thereafter, trial proceeded. The evidence for the prosecution tends to show that on or about February 18, 1992, up to May 31, 1992 at Quezon City, accused Jane Caras obtained from complainant Chu Yang T. Atienza on installment various gift checks and purchase orders from Uniwide Sales and in payment thereof, the accused issued to the complainant the following checks drawn against Philippine Commercial Bank: Check No.DateAmount017744 3-18-92P 14,125.00017743 3-03-92P 14,625.000176273-0392P 14,125.000177454-03-92P 14,125.000176644-18-92P 23,500.000177464-18-92P 14,125.000177893-18-92P 14,125.000177904-03-92P 14,125.000176634-02-92P 23,500.000176623-18-92P 24,440.000177683-18-92P 7,062.500177883-03-92P 14,125.000176655-02-92P 23,500.000177673-03-92P 7,062.500177693-3192P540,318.35When the checks were presented for deposit or encashment, they were all dishonored for the reason "Account Closed". Despite repeated verbal and written demands made on her to replace the dishonored checks with cash, she failed and refused to do so. The accused admitted that she issued the fifteen (15) checks. She claimed, however, that they were given to Marivic Nakpil,2 alleged sister of the complainant, as "guarantee deposit," that is, for every gift check and purchase order given to the accused, she issued personal checks to guarantee its payment. The checks are not to be encashed nor deposited with any bank. With regard to Check No. 017769 in the amount of P540,316.35 (Exh. "O"), accused claimed that she entrusted the said check to Marivic Nakpil in blank, with her signature but without any amount or numerical figures on the face of the check. On May 13, 1994, the Court a quo rendered its judgment with the following disposition:

WHEREFORE, Judgment is hereby rendered as follows: 1. In Crim. Case No. Q-93-44420 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 2. In Crim. Case No. Q-93-44421 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambans Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and indemnify the offended party in the amount of P14,625.00 and to pay the costs; 3. In Crim. Case No. Q-93-44422 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 4. In Crim. Case No. Q-93-44423 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 5. In Crim. Case No. Q-93-44424 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 6. In Crim. Case No. Q-93-44425 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 7. In Crim. Case No. Q-93-44426 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 8. In Crim. Case No. Q-93-44427 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 9. In Crim. Case No. Q-93-44428 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs;

10. In Crim. Case No. Q-93-44429 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P24,440.00 and to pay the costs; 11. In Crim. Case No. Q-93-44430 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 12. In Crim. Case No. Q-93-44431 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 13. In Crim. Case No. Q-93-44432 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 14. In Crim. Case No. Q-93-44433 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 15. In Crim. Case No. Q-93-44434 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of eight (8) months and to indemnify the offended party in the amount of P540,318.35 and to pay the costs. SO ORDERED.3 On June 13, 1994, petitioner filed a Motion for Reconsideration which was denied by the trial court in an Order dated September 22, 1994. Petitioner then filed an appeal with the Court of Appeals which rendered judgment as follows: WHEREFORE, the appealed decision is hereby AFFIRMED in toto. Costs against appellant. SO ORDERED.4 On April 11, 1997, petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated July 15, 1997. Hence, this petition, in which petitioner alleges that the Court of Appeals erred: I - IN NOT RESOLVING THE ISSUES BROUGHT OUT IN THE MOTION FOR RECONSIDERATION;

II - IN COMPLETELY IGNORING THE PURPOSE OF THE ISSUANCE OF THE CHECKS; III - IN COMPLETELY IGNORING THE LACK OF PERSONALITY OF THE PRIVATE COMPLAINANT TO INITIATE AND PROSECUTE THESE CASES; IV - IN NOT ACQUITTING THE ACCUSED FOR LACK OF CONSIDERATION (AS TO PCIB CHECK NO 017769 FOR P540,318.35) AND FOR LACK OF KNOWLEDGE OF THE INSUFFICIENCY OF HER FUNDS; V - IN COMPLETELY IGNORING THAT THE COURT A QUO HAD NO TERRITORIAL JURISDICTION OVER THE OFFENSE.5 Petitioner admits having issued the checks subject of this case, save for one, but insists that she issued them merely to guarantee payment of her obligation to a certain Marivic Nakpil; they were not supposed to have been deposited in a bank. Petitioner also denies having transacted with private complainant Chu Yang T. Atienza, and asserts that the latter did not have personality to prosecute this case. Petitioner argues that one of the checks, PCIB check no. 017769, was issued in blank. She claims that this check was issued without consideration and that the element of the crime that the check must be issued for value is lacking as regards this particular check. Also in relation to her fourth assignment of error, petitioner asserts that she was not properly notified of the dishonor of her checks. She maintains that the prosecution failed to show that she received the notices of dishonor purportedly sent to her. She points out that no return card nor acknowledgment receipt for the first demand letter was presented in evidence. While there was a return card attached to the second demand letter, this was not marked nor offered in evidence, and hence must be ignored.6 Petitioner also assails the jurisdiction of the Quezon City RTC over the case, maintaining that there is no evidence showing that the checks were issued and delivered in Quezon City. Neither is there evidence as to where the private complainant received the checks, and whether or not she received them from the accused herself. For its part, the Office of the Solicitor General argues that B.P. 22 does not make any distinction regarding the purpose for which the checks were issued. Thus, it is of no moment even if it were true that, as claimed by accused, the checks she issued were meant only to guarantee payment of her obligation. Criminal liability attaches whether the checks were issued in payment of an obligation or to guarantee payment of that obligation.7 There is violation of B.P. 22 when a worthless check is issued and is subsequently dishonored by the drawee bank. The OSG also points out that accused did not deny having issued the subject checks. After a careful consideration of the records and the submissions of the parties, we find that the resolution of this petition hinges on the issue of whether the prosecution evidence suffices to convict the accused, herein petitioner Jane Caras. The elements of the offense under Section 1 of B.P. Blg. 22 are: (1) drawing and issuance of any check to apply on account or for value; (2) knowledge by the maker, drawer, or issuer that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment; and (3) said check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop

payment.8 What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. There are matters we need to pursue, because, as said in Llamado v. Court of Appeals,9 to determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. Thus, petitioners contention that she issued the checks subject of this case merely to guarantee payment of her obligation is hardly a defense. The mere act of issuing a worthless check is malum prohibitum and is punishable under B.P. 22, provided the other elements of the offense are properly proved. In particular, we note that the law provides for a prima facie rule of evidence. Knowledge of insufficiency of funds in or credit with the bank is presumed from the act of making, drawing, and issuing a check payment of which is refused by the drawee bank for insufficiency of funds when presented within 90 days from the date of issue. However, this presumption may be rebutted by the accused-petitioner. Such presumption does not hold when the maker or drawer pays or makes arrangements for the payment of the check within five banking days after receiving notice that such check had been dishonored.10 Thus, it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law. Petitioner denies having received any notice that the checks she issued had been dishonored by the drawee bank. After carefully going over the records of this case, we find that indeed no clear evidence is shown on whether petitioner was informed that her checks had been dishonored. The notice of dishonor, as held in Lao v. Court of Appeals,11 may be sent by the offended party or the drawee bank. Complainant testified that she hired lawyers to prepare and send the demand letters.12 The prosecution presented and marked in evidence two letters demanding payment which were purportedly sent to petitioner. However, the prosecution presented no evidence that would establish petitioners actual receipt of any demand letter which could have served as notice to petitioner. None of the letters contained an indication that they were actually received by petitioner. No acknowledgement receipt nor return card for the first and second demand letters were offered in evidence. Such omission and neglect on the part of the prosecution is fatal to its cause. There is testimony on record that private complainant asked petitioner to pay the value of the checks. However, there is no mention of when the demand to pay was made, whether before or after the checks were dishonored by the drawee bank.13 It is possible that payment was requested before the checks were deposited, since, as testified to by petitioner, the usual arrangement was that she issues checks and then she replaces them with cash. The checks were not deposited but were, instead, returned to her.14 However, according to the prosecution, petitioner started having problems with her cash flow resulting to her inability to replace the checks she issued with cash. But such problems leading to illiquidity of petitioner are not material elements of the crime. What is pertinent here is prior notice to the drawer that her checks have been dishonored, so that within five banking days from receipt of such notice she could pay the check fully or make arrangements for such payment.

Even the testimony of Manuel Panuelos, branch manager of PCI Bank where petitioner maintained her checking account, indicates that the bank also failed to send notice to petitioner for her to pay the value of the checks or make arrangements for their payment within five days from the dishonor of the said checks. Note his testimony on cross-examination: Q: Did you give the accused notice within five (5) banking days within which to make arrangement with the bank within ninety (90) days regarding the bounced checks? Atty. Palaa: Your Honor, that is already answered by the witness. Atty. Dela Torre: No, that is not the answer, what I want is that..... Court: Reform Atty. Dela Torre: Is it not your procedure that when a check bounced, you give notice to the .... A: Q: A: It is not our procedure. It is not your procedure? No. In fact we do it verbally....

Q: Is it not standard operating procedure in your bank to give customers notice within five (5) banking days to make arrangement with the bank within ninety (90) days regarding the bounced check? A: Q: A: No, that is not our procedure. You do not follow that procedure? We do not. That is not our standard procedure.15

Petitioner on the witness stand denied receiving any notice from the bank. Q: Madam Witness, all these checks were deposited with the bank in one day. Will you please tell this Honorable Court when the first check bounced by the reason of DAIF, were you notified by your depositary bank which is PCIB within five (5) banking days to make arrangement within...days regarding that bouncing checks?


No, sir, I did not receive any notice.16

The absence of proof that petitioner received any notice informing her of the fact that her checks were dishonored and giving her five banking days within which to make arrangements for payment of the said checks prevents the application of the disputable presumption that she had knowledge of the insufficiency of her funds at the time she issued the checks. Absent such presumption, the burden shifts to the prosecution to prove that petitioner had knowledge of the insufficiency of her funds when she issued the said checks, otherwise, she cannot be held liable under the law.17 Even more crucial, the absence of any notice of dishonor personally sent to and received by the accused is a violation of the petitioners right to due process. This is in effect our ruling in Lao vs. Court of Appeals,18 where we held: It has been observed that the State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated". This was also compared "to certain laws"(citing E.O. 107, 83 O.G. No. 7, p. 576 (February 16, 1987), and E.O. 122, 89 O.G. No. 44, p. 6349 (November 1, 1993) allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability" (citing Nitafan, David G., Notes and Comments on the Bouncing Checks Law (BP Blg. 22), pp. 121-122). In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense" (citing Navarro vs. Court of Appeals, 234 SCRA 639). The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22. (Underscoring and emphasis supplied.) Absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal.19 Discussion of the other assigned errors need no longer detain us. However, it should be stressed that this decision in no way prejudices the civil obligations, if any, that she might have incurred by reason of her transactions with private complainant. For we note that petitioner does not deny having issued the subject checks.20 And while no criminal liability could be imposed in this case for lack of sufficient proof of the offense charged, a fair distinction should be made as to civil aspects of the transaction between the parties. WHEREFORE, the assailed decision of the Court of Appeals affirming that of the Regional Trial Court, is REVERSED and SET ASIDE. Petitioner Jane Caras is ACQUITTED on the ground that her guilt has not been established beyond reasonable doubt. This decision is without prejudice to the filing of an appropriate civil case, if warranted, to determine the civil aspects of petitioners transactions. No pronouncement as to costs. SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

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