Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-6339

April 20, 1954

MANUEL LARA, ET AL., plaintiffs-appellants,

vs.
PETRONILO DEL ROSARIO, JR., defendant-appellee.
Manansala and Manansala for appellants.
Ramon L. Resurreccion for appellee.
MONTEMAYOR, J.:
In 1950 defendant Petronilo del Rosario, Jr., owner of twenty-five taxi cabs or cars, operated a taxi
business under the name of "Waval Taxi." He employed among others three mechanics and 49 chauffeurs
or drivers, the latter having worked for periods ranging from 2 to 37 months. On September 4, 1950,
without giving said mechanics and chauffeurs 30 days advance notice, Del Rosario sold his 25 units or
cabs to La Mallorca, a transportation company, as a result of which, according to the mechanics and
chauffeurs above-mentioned they lost their jobs because the La Mallorca failed to continue them in their
employment. They brought this action against Del Rosario to recover compensation for overtime work
rendered beyond eight hours and on Sundays and legal holidays, and one month salary (mesada) provided
for in article 302 of the Code of Commerce because the failure of their former employer to give them one
month notice. Subsequently, the three mechanics unconditionally withdrew their claims. So only the 49
drivers remained as plaintiffs. The defendant filed a motion for dismissal of the complaint on the ground
that it stated no cause of action and the trial court for the time being denied the motion saying that it will
be considered when the case was heard on the merits. After trial the complaint was dismissed. Plaintiffs
appealed from the order of dismissal to the Court of Appeals which Tribunal after finding only questions
of law are involved, certified the case to us.
The parties are agreed that the plaintiffs as chauffeurs received no fixed compensation based on the hours
or the period of time that they worked. Rather, they were paid on the commission basis, that is to say,
each driver received 20 per cent of the gross returns or earnings from the operation of his taxi cab.
Plaintiffs claim that as a rule, each drive operated a taxi 12 hours a day with gross earnings ranging from
P20 to P25, receiving therefrom the corresponding 20 per cent share ranging from P4 to P5, and that in
some cases, especially during Saturdays, Sundays, and holidays when a driver worked 24 hours a day he
grossed from P40 to P50, thereby receiving a share of from P8 to P10 for the period of twenty-four hours.
The reason given by the trial court in dismissing the complaint is that the defendant being engaged in the
taxi or transportation business which is a public utility, came under the exception provided by the EightHour Labor Law (Commonwealth Act No. 444); and because plaintiffs did not work on a salary basis,
that is to say, they had no fixed or regular salary or remuneration other than the 20 per cent of their gross

earnings "their situation was therefore practically similar to piece workers and hence, outside the ambit of
article 302 of the Code of Commerce."
For purposes of reference we are reproducing the pertinent provisions of the Eight-Hour Labor Law,
namely, sections 1 to 4.
SECTION 1. The legal working day for any person employed by another shall not be more than
eight hours daily. When the work is not continuous, the time during which the laborer is not
working and can leave his working place and can rest completely shall not be counted.
SEC. 2. This Act shall apply to all persons employed in any industry or occupation, whether
public or private, with the exception of farm laborers, laborers who prefer to be paid on piece
work basis, domestic servants and persons in the personal service of another and members of the
family of the employer working for him.
SEC. 3. Work may be performed beyond eight hours a day in case of actual or impending
emergencies, caused by serious accidents, fire flood, typhoon, earthquakes, epidemic, or other
disaster or calamity in order to prevent loss of life and property or imminent danger to public
safety; or in case of urgent work to be performed on the machines, equipment, or installations in
order to avoid a serious loss which the employer would otherwise suffer, or some other just cause
of a similar nature; but in all cases the laborers and the employees shall be entitled to receive
compensation for the overtime work performed at the same rate as their regular wages or salary,
plus at least twenty-five per centum additional.
In case of national emergency the Government is empowered to establish rules and regulations
for the operation of the plants and factories and to determine the wages to be paid the laborers.
SEC. 4. No person, firm, or corporation, business establishment or place or center of work shall
compel an employee or laborer to work during Sundays and legal holidays, unless he is paid an
additional sum of at least twenty-five per centum of his regular remuneration: Provided
however, That this prohibition shall not apply to public utilities performing some public service
such as supplying gas, electricity, power, water, or providing means of transportation or
communication.
Under section 4, as a public utility, the defendant could have his chauffeurs work on Sundays and legal
holidays without paying them an additional sum of at least 25 per cent of their regular remuneration: but
that with reference only to work performed on Sundays and holidays. If the work done on such days
exceeds 8 hours a day, then the Eight-Hour Labor Law would operate, provided of course that plaintiffs
came under section 2 of the said law. So that the question to be decided here is whether or not plaintiffs
are entitled to extra compensation for work performed in excess of 8 hours a day, Sundays and holidays
included.
It will be noticed that the last part of section 3 of Commonwealth Act 444 provides for extra
compensation for over-time work "at the same rate as their regular wages or salary, plus at least twentyfive per centum additional'" and that section 2 of the same act excludes application thereof laborers who

preferred to be on piece work basis. This connotes that a laborer or employee with no fixed salary, wages
or remuneration but receiving as compensation from his employer uncertain and variable amount
depending upon the work done or the result of said work (piece work) irrespective of the amount of time
employed, is not covered by the Eight-Hour Labor Law and is not entitled to extra compensation should
he work in excess of 8 hours a day. And this seems to be the condition of employment of the plaintiffs. A
driver in the taxi business of the defendant, like the plaintiffs, in one day could operate his taxi cab eight
hours, or less than eight hours or in excess of 8 hours, or even 24 hours on Saturdays, Sundays, and
holidays, with no limit or restriction other than his desire, inclination and state of health and physical
endurance. He could drive continuously or intermittently, systematically or haphazardly, fast or slow, etc.
depending upon his exclusive wish or inclination. One day when he feels strong, active and enthusiastic
he works long, continuously, with diligence and industry and makes considerable gross returns and
receives as much as his 20 per cent commission. Another day when he feels despondent, run down, weak
or lazy and wants to rest between trips and works for less number of hours, his gross returns are less and
so is his commission. In other words, his compensation for the day depends upon the result of his work,
which in turn depends on the amount of industry, intelligence and experience applied to it, rather than the
period of time employed. In short, he has no fixed salary or wages. In this we agree with the learned trial
court presided by Judge Felicisimo Ocampo which makes the following findings and observations of this
point.
. . . As already stated, their earnings were in the form of commission based on the gross receipts
of the day. Their participation in most cases depended upon their own industry. So much so that
the more hours they stayed on the road, the greater the gross returns and the higher their
commissions. They have no fixed hours of labor. They can retire at pleasure, they not being paid a
fixed salary on the hourly, daily, weekly or monthly basis.
It results that the working hours of the plaintiffs as taxi drivers were entirely characterized by its
irregularity, as distinguished from the specific regular remuneration predicated on specific and
regular hours of work of factories and commercial employees.
In the case of the plaintiffs, it is the result of their labor, not the labor itself, which determines
their commissions. They worked under no compulsion of turning a fixed income for each given
day. . . ..
In an opinion dated June 1, 1939 (Opinion No. 115) modified by Opinion No. 22, series 1940, dated June
11, 1940, the Secretary of Justice held that chauffeurs of the Manila Yellow Taxicab Co. who "observed in
a loose way certain working hours daily," and "the time they report for work as well as the time they leave
work was left to their discretion.," receiving no fixed salary but only 20 per cent of their gross earnings,
may be considered as piece workers and therefore not covered by the provisions of the Eight-Hour Labor
Law.
The Wage Administration Service of the Department of Labor in its Interpretative Bulletin No. 2 dated
May 28, 1953, under "Overtime Compensation," in section 3 thereof entitled Coverage, says:
The provisions of this bulletin on overtime compensation shall apply to all persons employed in
any industry or occupation, whether public or private, with the exception of farm laborers, non-

agricultural laborers or employees who are paid on piece work, contract, pakiao, task
or commission basis, domestic servants and persons in the personal service of another and
members of the family of the employer working for him.
From all this, to us it is clear that the claim of the plaintiffs-appellants for overtime compensation under
the Eight-Hour Labor Law has no valid support.
As to the month pay (mesada) under article 302 of the Code of Commerce, article 2270 of the new Civil
Code (Republic Act 386) appears to have repealed said Article 302 when it repealed the provisions of the
Code of Commerce governing Agency. This repeal took place on August 30, 1950, when the new Civil
Code went into effect, that is, one year after its publication in the Official Gazette. The alleged
termination of services of the plaintiffs by the defendant took place according to the complaint on
September 4, 1950, that is to say, after the repeal of Article 302 which they invoke. Moreover, said Article
302 of the Code of Commerce, assuming that it were still in force speaks of "salary corresponding to said
month." commonly known as "mesada." If the plaintiffs herein had no fixed salary either by the day, week
or month, then computation of the month's salary payable would be impossible. Article 302 refers to
employees receiving a fixed salary. Dr. Arturo M. Tolentino in his book entitled "Commentaries and
Jurisprudence on the Commercial Laws of the Philippines," Vol. 1, 4th edition, p. 160, says that article
302 is not applicable to employees without fixed salary. We quote
Employees not entitled to indemnity. This article refers only to those who are engaged under
salary basis, and not to those who only receive compensation equivalent to whatever service they
may render. (1 Malagarriga 314, citing decision of Argentina Court of Appeals on Commercial
Matters.)
In view of the foregoing, the order appealed from is hereby affirmed, with costs against appellants.
Pablo, Bengzon, Padilla, Reyes, Jugo, Bautista Angelo, Labrador, Concepcion, and Diokno, JJ., concur.
Paras, C.J., concurs in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415,
427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644,
658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 10601061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155,
161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532,
1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609,
1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742,
1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804,
1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892,
1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92,
94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is submitted
that in the absence of any showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant, immediately
or at some other specified time, to do the act required to be done to Protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and
its object is to compel the performance of a public duty, they need not show any specific interest for their
petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real
party in interest and the relator at whose instigation the proceedings are instituted need not show that he
has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought

to be enforced. If the general rule in America were otherwise, we think that it would not
be applicable to the case at bar for the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is
a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed
to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government officer generally empowered to represent the
people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for
the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long
line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with
the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to be so published;

[4] such documents or classes of documents as may be required so to be published by

law; and [5] such documents or classes of documents as the President of the Philippines
shall determine from time to time to have general applicability and legal effect, or which
he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various
laws which are to regulate their actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the
height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had
no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have bestowed upon the President a power heretofore
enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative records
no such publicity accompanies the law-making process of the President. Thus, without publication, the
people have no means of knowing what presidential decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme
Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por
el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty.
That duty must be enforced if the Constitutional right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what
must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee
said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of
the law of the land, the requirement of due process and the Rule of Law demand that the
Official Gazette as the official government repository promulgate and publish the texts of

all such decrees, orders and instructions so that the people may know where to obtain
their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the question
as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented
prior to their publication. The answer is all too familiar. In similar situations in the past this Court had
taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to
wit:
The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters
nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or
enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled

that "publication is necessary to apprise the public of the contents of [penal] regulations and make the
said penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no

such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be impressed
with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to
affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be
ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be tainted
by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate
opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are commanded to obey before
they can be punished for its violation, 1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The
best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws
or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not
necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code for its proper
dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when
it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for
reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be
published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and
defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be
published in the Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that not all legislative acts are required to
be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said
law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is
as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of
general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a
subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher
law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or

presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be impressed
with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to
affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the
Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be
ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be tainted
by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and

cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate
opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a
reasonable opportunity to be informed must be afforded to the people who are commanded to obey before
they can be punished for its violation, 1 citing the settled principle based on due process enunciated in
earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3
of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The
best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws
or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not
necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days

following its publication which is the period generally fixed by the Civil Code for its proper
dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may
be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when
it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for
reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be
published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for
the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes
the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and
defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be
published in the Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that not all legislative acts are required to
be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said
law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is
as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of
general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a

subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher
law, which is the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 161877

March 23, 2006

ARIEL C. SANTOS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Ariel C. Santos assails and seeks the reversal of the July
31, 2003 decision1 of the Sandiganbayan (Third Division) in Criminal Case No. 21770, as reiterated in its
January 28, 2004 resolution,2 denying petitioner's motion for reconsideration.
The facts:

In an Information3 filed with the Sandiganbayan, thereat docketed as Criminal Case No. 21770 and raffled
to its Third Division, herein petitioner Ariel Santos y Cadiente, then the Labor Arbiter of the National
Labor Relations Commission (NLRC), Regional Arbitration Branch No. III, San Fernando, Pampanga,
was charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, allegedly committed as follows:
That on March 11, 1993 and June 15, 1993 respectively, in San Fernando, Pampanga, , the abovenamed accused, , being then the Labor Arbiter of the [NLRC], Regional Arbitration Branch No. III, San
Fernando, Pampanga, while in the performance of his quasi-judicial functions, taking advantage of his
position and committing the offense in relation to his office, did then and there willfully, unlawfully,
criminally and through evident bad faith and manifest partiality towards Abraham Mose, complainant in
NLRC-RAB Case No. RO3-198-79 captioned Abraham Mose vs. Plaza Hotel/Apartments, cause undue
injury to Conrado L. Tiu, the owner of the Plaza Hotel/Apartments, in the following manner: accused
despite the pendency of the motion for reconsideration of his Order dated October 21, 1992 directing the
issuance of a writ of execution and the opposition to the motion for execution as well as the motion to
quash writ of execution, issued first a writ of execution dated March 11, 1993 followed by an alias writ of
execution dated June 15, 1993, without acting on the said motions and opposition anymore, and as a
consequence thereof, undue injury was caused to Conrado L. Tiu while giving unwarranted benefit and
advantage to Abraham Mose.
CONTRARY TO LAW. [Words in bracket added.]
Arraigned on April 22, 1996,4 petitioner, as accused below, entered a plea of "Not Guilty."
In the ensuing pre-trial conference, petitioner made the following admissions of fact duly embodied in the
courts second pre-trial order5 dated April 13, 1999:
1. That at the time material to the case as alleged in the information, accused Ariel Santos was the
Labor Arbiter of the NLRC-Branch III, San Fernando, Pampanga;
2. That the accused issued an Order dated October 21, 1992, directing the issuance of Writ of
Execution against Conrado L. Tiu in NLRC-RAB Case No. RO3-198-79 .;
3. That Conrado L. Tiu , addressed to the accused, a motion for reconsideration of said
Order directing the issuance of Writ of Execution;
4. That likewise, Conrado L. Tiu filed an opposition to Abraham Mose's motion for issuance of
Writ of Execution in the above-entitled case;
5. That without resolving the Motion for Reconsideration , and despite the pendency of the
same accused issued a Writ of Execution dated March 11, 1993, as well as an Alias Writ of
Execution dated June 15, 1993 in said case.

During trial, the prosecution adduced in evidence the testimony of its sole witness in the person of private
complainant Conrado L. Tiu, owner of Plaza Hotel/Apartments, and the documents he identified and
marked in the course of the proceedings.
For its part, the defense, following the denial of its Demurrer to Evidence, 6 called to the witness box
petitioner himself and one Norma G. Reyes.
As summarized in the decision under review, the parties respective versions of the relevant incidents
follow:
Facts as established by the prosecution
On July 10, 1981, a Decision was rendered by Labor Arbiter Andres Palumbarit of the Ministry of Labor
and Employment of Region 3, Arbitration Branch in RO3-AB Case No. 198-79 entitled Abraham M.
Mose vs. Plaza Hotel/Apartments, owned by Conrado L. Tiu. In said Decision, Conrado L. Tiu was
ordered to pay his former employee, Abraham Mose, backwages and other benefits from the time he was
illegally dismissed up to the time of his reinstatement, without however indicating any particular amount.
Pursuant to the above Labor Decision, NLRC Corporate Auditing Examiner Maria Lourdes L. Flores
issued a Report of Examiner rendering the computation of Abraham Moses backwages and benefits for a
period of three (3) years from July 1979 for a total amount of P16,360.50. .
On September 2, 1981, the Plaza Hotel/Apartments filed a Memorandum of Appeal with the MOLE
Region 3, seeking for the reversal/reconsideration of the above stated Labor Decision. This appeal
was, however, dismissed per Resolution dated August 4, 1982. Plaza Hotel/Apartments raised their
appeal to the Honorable Supreme Court which was docketed as G.R. No. 77105.
While the appeal was still pending before the Court, another Report of Examiner was rendered by
Examiner Philip A. Manansala increasing the award from P16,360.50 to P63,537.76 which now
covered backwages and benefits from July 1979 to May 1987.
This sudden increase of judgment award prompted Plaza Hotel/ Apartments to file an objection to the
Report of Examiner Philip Manansala, citing among others: a) Supreme Court rulings that the maximum
backwages to be paid should only cover three (3) years from dismissal; .
On March 15, 1989, the Supreme Court denied the appeal filed by Plaza Hotel/Apartments and with
finality on August 3, 1989.
On March 13, 1990, the NLRC Region 3 through Norma G. Reyes, made a recomputation of the
judgment award in favor of Abraham Mose in accordance with the Supreme Court ruling covering a
period of only three (3) years from the date of dismissal. This recomputed award amounted to P19,908.46
.
After the above incidents, [the] accused took over the above Labor Case RO3-AB-Case No. 198-79, .
On October 21, 1992, [he] issued an Order of even date, which increased the judgment award

from P19,908.46 to a skyrocketing P178,462.56 adopting and citing therein as basis a Report of Fiscal
Examiner dated September 24, 1991, which was not even furnished to Plaza Hotel/Restaurants, Conrado
L. Tiu or his counsel. This computation was contrary to the prevailing jurisprudence in Lepanto
Consolidated Mining Co. vs. Encarnacion, where the monetary awards for illegally dismissed employees
should only cover a three (3) year-period from the time of dismissal. The October 21, 1992 Order of [the]
accused included the order for the issuance of Writ of Execution.
Plaza Hotel/Apartments filed a Motion for Reconsideration dated November 5, 1992 seeking the
reconsideration of the above Order of accused . Cited as grounds for reconsideration, inter alia, are: a)
the order assailed [is] contrary to the prevailing jurisprudence laid in Lepanto Consolidated Mining
; b) Conrado L. Tiu cannot possibly reinstate Abraham Mose to his former position as waiter in the
Plaza Hotel because it has already closed business as early as January 21, 1987 .
During the pendency of the Plaza Hotels Motion for Reconsideration, Abraham Mose through counsel
filed an Ex-Parte Motion for Execution of the Order dated October 21, 1992. This was opposed by Plaza
Hotel/Apartments .
Without however acting on the Plaza Hotel/Apartments Motion for Reconsideration dated November 5,
1992 and the Opposition to Motion for Execution dated February 6, 1993, [the] accused issued a Writ of
Execution dated March 11, 1993 to implement his Order of October 21, 1992 to collect the amount
of P178,462.56 . Reacting to this action of [the] accused , Plaza Hotel/Apartments filed on May 25,
1993 a Motion to Quash Writ of Execution and to Resolve Motion for Reconsideration. [The] accused
however ignored all the abovesaid Motions and pleadings filed by Plaza Hotel/Apartments.
Conrado L. Tiu, was then compelled to file a Petition for Injunction before the Department of Labor
and Employment with a prayer for [a] Temporary Restraining Order [TRO].
The NLRC in its Resolution of June 9, 1993 issued the (TRO) enjoining the accused from enforcing
his Writ of Execution dated March 11, 1993. In order to implement the TRO, the NLRC imposed as a
condition the posting by Conrado L. Tiu of a cash or surety bond equivalent to the judgment award
of P178,462.56 [which Tiu complied] as shown by his payment of premium amounting to P11,885.50.
Despite the [TRO], [the] accused issued an "Alias Writ of Execution" dated June 15, 1993 reiterating the
enforcement of his previous Writ of Execution. However, this was not enforced due to the [TRO]
presented by Conrado L. Tiu to the NLRC Sheriffs .
On February 8, 1994, the NLRC, issued a decision to limit the computation of judgment award in
favor of Abraham Mose to only three (3) years from July 4, 1979 to July 4, 1982 without qualification or
deduction according to the prevailing jurisprudence laid down by the Supreme Court. 7 (Words in bracket
added).
Facts as established by the defense
Accused Ariel Santos admitted that he had issued a Writ of Execution on the Decision dated July 10, 1981
of the Labor Arbiter Andres Palumbarit . The award, however, was increased from P19,908.46

to P178,462.56 . The said writ of execution was issued on March 11, 1993. A Motion for
Reconsideration dated February 6, 1993 was subsequently filed by the Plaza Hotel/Apartments on the
Order dated October 21, 1992, but [the] accused deemed not to resolve the same because he felt there is
no necessity to resolve it, since the decision of Labor Arbiter Palumbarit has become final and executory,
hence, ministerial for his part to implement and enforce the same.
On February 28, 1994, a Decision of the NLRC was issued stating that the backwages should be
limited only to three (3) years in consonance with the ruling in the Lepanto Mining Company case. He
further testified that, he did not know anymore nor aware what happened to the case since, as of August,
1993, he was assigned at the NLRCNCR, and much as he wanted to rectify the error, he can no longer
do so .
Prior to the issuance of the abovesaid decision, a [TRO]was issued by the DOLENLRC for the
enjoinment of the implementation of the writ of execution dated March 11, 1993, however, [the] accused
issued an alias writ of execution. The Sheriff assigned did not implement the said writs.
Norma Reyes initially made a computation for the back wages of Abraham Mose in the
amount P19,908.46 . However, she made a recomputation based on the Order of [the accused]
dated October 21, 1992 and increased the P19,908.46 back wages to P178,462.56 . She was not
informed by [the] accused that it is physically impossible for Mose to be reinstated . 8 (Words in bracket
added)
In the same decision, the Sandiganbayan (Third Division) adjudged petitioner guilty as charged and,
accordingly, sentenced him, thus:
WHEREFORE, the Court finds accused ARIEL SANTOS y CADIENTE GUILTY beyond reasonable
doubt of violation of Section 3 (e) of Republic Act No. 3019, otherwise known as "The Anti-Graft and
Corrupt Practices Act", and sentences said accused to EIGHT (8) YEARS and ONE (1) DAY, as
minimum, to TEN (10) YEARS, as maximum, and perpetual disqualification from holding public office.
Ariel Santos is also ordered to pay Plaza Hotel/Apartments, through Conrado L. Tiu, the following sums
as his civil liability:
1. P68,000 for the attorney's fees paid by Conrado L. Tiu because of filing of this case; and
2. P11,800 for the supersedeas bond paid by Conrado L. Tiu in connection with the restraining
order issued by the DOLE-NLRC.
SO ORDERED.9
His motion for reconsideration having been denied by the same court in its equally assailed Resolution of
January 28, 2004,10 petitioner is now with this Court via the present recourse imputing on the respondent
court the following errors:

I. IN HOLDING THAT PETITIONER WAS GUILTY OF MANIFEST PARTIALITY IN ISSUING THE

WRITS OF EXECUTION SUBJECT OF THE INFORMATION.
ll. IN HOLDING THAT THE PRIVATE COMPLAINANT SUFFERED UNDUE INJURY SINCE, AS
SHOWN ABOVE, THE JUDGMENT FOR WHICH HE WAS HELD LIABLE TO PAY BACKWAGES,
WHETHER FOR THAT LIMITED PERIOD OF THREE (3) YEARS OR CONTINUING
BACKWAGES UNTIL ACTUAL REINSTATEMENT HAS NEVER BEEN SATISFIED.
The petition is not impressed with merit.
Section 3(e) of R.A. No. 3019, as amended, under which petitioner was indicted and convicted, reads:
SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
In Jacinto vs. Sandiganbayan,11 the Court en banc enumerated the essential elements of the crime
punishable under the aforequoted statutory provision, to wit:
1. The accused must be a public officer discharging administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and
3. That his action caused any undue injury to any party, including the government, or giving any
private party unwarranted benefits, advantage or preference in the discharge of his functions.
As may be noted, what contextually is punishable is the act of causing any undue injury to any party, or
the giving to any private party of unwarranted benefits, advantage or preference in the discharge of the
public officers functions. In Uy vs. Sandiganbayan,12 and again in Santiago vs. Garchitorena,13 the Court
has made it abundantly clear that the use of the disjunctive word "or" connotes that either act of (a)
"causing any undue injury to any party, including the Government"; and (b) "giving any private party any
unwarranted benefits, advantage or preference," qualifies as a violation of Section 3(e) of R.A. No. 3019,
as amended. This is not to say, however, that each mode constitutes a distinct offense but that an accused
may be proceeded against under either or both modes.
Anent the first error, petitioner submits that the Sandiganbayan overlooked the fact that, when he issued,
on June 15, 1993, the Alias Writ of Execution, reiterating the enforcement of the previous Writ of

Execution dated March 11, 1993, he had no knowledge of the issuance on June 9, 1993 by the NLRC of a
temporary restraining order (TRO). Prescinding therefrom, petitioner would now insist that, having been
apprised of the TRO only on June 29, 1993, the day the NLRC's Central Docket Section released the
same, he could not be criminally liable for acting with manifest partiality in issuing the alias writ of
execution on June 15, 1993.
The Court is not persuaded.
Petitioners posture of not having known at some material point in time the issuance of the TRO in
question strikes the Court as mere afterthought. If it were really true that he had no knowledge of the TRO
issuance before he issued the June 15, 1993 alias writ of execution, he should have at least stated so in his
defense before the court below or marked, as evidence, the TRO evidencing that it was released from the
NLRC's docket section only on June 29, 1993. The materiality and significant weight of this defense
could not have eluded petitioner, himself a lawyer, and his counsel, if indeed he had no knowledge that a
TRO had already been issued. Not lost on the Court is the fact that petitioner did not even raise said issue
in his Demurrer to Evidence before the respondent court, as well as in his motion for reconsideration of
its decision. The settled rule is that no question will be entertained on appeal unless it had been raised in
the court below. Points of law, theories, issues and arguments not adequately brought to the attention of
the lower court need not be, and ordinarily will not be, considered by a reviewing court as they cannot be
raised for the first time on appeal. Springing surprises on the opposing party is offensive to the sporting
idea of fair play, justice and due process; hence the proscription against raising a new issue for the first
time on appeal.14
In any case, the Court agrees with the findings and disquisitions of the Sandiganbayan that petitioner
exhibited manifest partiality towards Abraham Mose in issuing the two Writs of Execution:
As a Labor Arbiter, and a lawyer at that, it is incumbent upon him to exercise prudence and probity in the
exercise of his functions. He knew that there was a pending Motion for Reconsideration filed by Plaza
Hotel/Apartments contesting his order dated October 21, 1992 ordering, in haste, the issuance of the writ
of execution and regarding the hulking increase of the amount of backwages to be paid to Abraham Mose
from P19,908.46 toP178,462.56, and despite the pendency of the said Motion, he issued the
corresponding writ of execution. His reason that there is no longer a necessity to resolve the motion for
reconsideration because the Decision of Labor Arbiter Palumbarit has become final and executory is
untenable and a very negligible statement. The issue raised in the motion for reconsideration is not the
Decision of Labor Arbiter Palumbarit, but accused's Order dated October 21, 1992, and thus, incumbent
upon him to resolve first the pending motion for reconsideration before pursuing with the implementation
of the said Order and instead of issuing the writ of execution. Furthermore, accused again issued an alias
writ of execution, this time, despite issuance of a temporary restraining order by the DOLE-NLRC. By
these acts of accused Ariel Santos, it is clearly evident that he had exercised manifest partiality or bias on
Abraham Mose in impetuously issuing the two writs of execution, thus, causing damage and injury, which
are not merely negligible to Plaza Hotel/Apartments. 15
Petitioner also maintains that Plaza Hotel did not suffer damage or injury consequent to his having issued
the two writs of execution, arguing that neither was ever enforced. Pressing the point, he also states that

what Plaza Hotel paid by way of attorney's fees and premium for the supersedeas bond it posted to enjoin
the enforcement of the alias writ of execution is not the damage or injury contemplated under Section 3(e)
of R.A. No. 3019.
The contention is untenable.
The term "undue injury" in the context of Section 3 (e) of the Anti-Graft and Corrupt Practices Act
punishing the act of "causing undue injury to any party," has a meaning akin to that civil law concept of
"actual damage." The Court said so in Llorente vs. Sandiganbayan, 16 thus:
In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined
as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another,
either in his person, rights, reputation or property [; that is, the] invasion of any legally protected interest
of another." Actual damage, in the context of these definitions, is akin to that in civil law.
In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows:
"Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only
for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual
or compensatory damages."
Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or
negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a
consequence of the defendants act. Actual pecuniary compensation is awarded as a general rule, .
Actual damages are primarily intended to simply make good or replace the loss caused by the wrong.
Petitioner admitted issuing the two writs of execution without first resolving Plaza Hotel's motion for
reconsideration of his October 21, 1992 Order. He argued, however, that it was his ministerial duty to
issue the writs aforementioned, the finality of the decision sought to be enforced, i.e., the decision of
Labor Arbiter Palumbarit, having set in upon the dismissal, with finality, by this Court of Plaza Hotels
petition for certiorari in G.R. No. 77105 assailing said decision.
Petitioner is obviously trying to mislead. As may be recalled, petitioner took over Labor Case RO3-AB
Case No. 198-79 after this Court, in G.R. No. 77105, dismissed with finality Plaza Hotel/Apartments
appeal from the decision of Labor Arbiter Andres Palumbarit which, to stress, decreed payment to Mose
of backwages from the date of his illegal dismissal to his reinstatement, without, however, indicating a
specific amount. In the span between the issuance of the Palumbarit decision and this Courts final
dismissal action aforementioned, two NLRC auditing examiners came out with (2) different computations
of the judgment award. Thereafter, but before accused issued, on October 21, 1992, an order fixing the
judgment award at P178,462.56 and directing the issuance of the covering writ of execution, examiner
Norma Reyes, following jurisprudence, made a recomputation and came up with the figure P19,908.46 to
cover the threshold three years backwages.
The increase of the award for Mose from P19,908.46 to P178,462.56 appeared contrary to prevailing
jurisprudence that such award should cover only a 3-year period from the time of the employee's

dismissal.17 The perceived illegality of the said Order of October 21, 1992 is what impelled Plaza Hotel to
move for a reconsideration, raising inter alia the following issues for petitioner to consider in assessing
the former's liability: (a) the ruling in Lepanto Consolidated Mining vs. Encarnacion 18 on the amount
recoverable in illegal dismissal cases is still the prevailing doctrine; (b) as early as July 1990, the
employer already expressed willingness to pay Mose the sum of P19,908.46; and (c) Plaza Hotel was not
furnished of the new computation assessing it the amount of P178,462.56.
From the foregoing narration of events, it is fairly clear that Plaza Hotels motion for reconsideration
immediately referred to above was directed against petitioners order of October 21, 1992 directing the
issuance of a writ of execution for the amount stated therein. Be this as it may, petitioners pose
respecting his ministerial duty to order the execution of a final and executory decision of Andres
Palumbarit is as simplistic as it is misleading.
As it were, petitioner failed to resolve said motion for reconsideration and instead issued on March 11,
1993 a writ of execution. Worse still, he proceeded to issue an alias writ of execution despite the issuance
by the NLRC Proper of a TRO enjoining the implementation of the underlying writ. Under the
circumstances, Plaza Hotel was within its right to secure the services of counsel - for a fee of P68,500.00
- and, to apply for injunctive relief and then pay P11,800.00 for the supersedeas bond to stay the
implementation of the writ of execution in question. In net effect, Plaza Hotel incurred damages rendered
necessary by the illegal or improper acts of petitioner.
All told, the Court rules and so holds, as did the respondent Sandiganbayan, that the elements of the
offense charged had been duly established beyond reasonable doubt. Petitioner, being a labor arbiter of
the NLRC, discharges quasi-judicial functions. His act of issuing the two writs of execution without first
resolving the pending motion for reconsideration of his October 21, 1992 Order, and despite the existence
of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private
complainant Conrado L. Tiu.
The penalty for violation of Section 3(e) of R.A. No. 3019 is imprisonment for not less than six years and
one month nor more than fifteen years, perpetual disqualification from public office, and other accessory
penalties. Under the Indeterminate Sentence Law, if the offense is punished by special law, as here, the
court shall impose on the accused an indeterminate penalty the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the
same. Hence, the respondent court correctly imposed on petitioner an indeterminate prison term of eight
(8) years and one (1) day, as minimum, to ten (10) years, as maximum, with perpetual disqualification
from public office.
WHEREFORE, finding no reversible error on the decision under review, the same is hereby AFFIRMED
in toto and this petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873

April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell
14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated
November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around
2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together
with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator
core of the 14th floor of the Tower D, Renaissance Tower Building on board a [p]latform made of
channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and
cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the
bolt or pin which was merely inserted to connect the chain block with the [p]latform, got loose
xxx causing the whole [p]latform assembly and the victim to fall down to the basement of the
elevator core, Tower D of the building under construction thereby crushing the victim of death,
save his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on
board and performing work, fell. And the falling of the [p]latform was due to the removal or
getting loose of the pin which was merely inserted to the connecting points of the chain block and
[p]latform but without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint
for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the
RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES

IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART
OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The
CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the
hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
knowledge, that is, which are derived from his perception. 4 A witness, therefore, may not testify as what
he merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned. 5 This is known
as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence
applies to written, as well as oral statements. 6
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to
light and exposed by the test of cross-examiantion. 7 The hearsay rule, therefore, excludes evidence that
cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule, 9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law areprima facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to
do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person
in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is
not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. InRodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was inadmissible
for the purpose of proving the truth of the statements contained in the report but admissible insofar as it
constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for crossexamination, the portions of the report which were of his personal knowledge or which consisted
of his perceptions and conclusions were not hearsay. The rest of the report, such as the summary
of the statements of the parties based on their sworn statements (which were annexed to the
Report) as well as the latter, having been included in the first purpose of the offer [as part of the
testimony of Major Enriquez], may then be considered as independently relevant
statements which were gathered in the course of the investigation and may thus be admitted as
such, but not necessarily to prove the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to
the making of such statement is not secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant as to the existence of such a
fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved that
certain utterances were made (but not their truth), was effectively removed from the ambit of the
aforementioned Section 44 of Rule 130. Properly understood, this section does away with the
testimony in open court of the officer who made the official record, considers the matter as an
exception to the hearsay rule and makes the entries in said official record admissible in evidence
as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary
rule are necessity and trustworthiness, as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the occasions
in which the officials would be summoned from his ordinary duties to declare as a
witness are numberless. The public officers are few in whose daily work something is not
done in which testimony is not needed from official sources. Were there no exception for
official statements, hosts of officials would be found devoting the greater part of their
time to attending as witnesses in court or delivering deposition before an officer. The
work of administration of government and the interest of the public having business with
officials would alike suffer in consequence. For these reasons, and for many others, a
certain verity is accorded such documents, which is not extended to private documents. (3
Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in evidence and shall be taken to be true
under such a degree of caution as to the nature and circumstances of each case may
appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on
his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied. The statements given by
the sources of information of Major Enriquez failed to qualify as "official information," there
being no showing that, at the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva
had seen Juegos remains at the morgue,12 making the latters death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the building the day after the incident 13 and saw the
platform for himself.14 He observed that the platform was crushed15 and that it was totally damaged.16 PO3
Villanueva also required Garcia and Fabro to bring the chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached from the lifting machine, without any pin or bolt. 17
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of
the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the
testimony is mere opinion. Subject to certain exceptions, 18 the opinion of a witness is generally not
admissible.19
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the
CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator
was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the
doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of
negligence.20
The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality
speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in the
injury was such as in the ordinary course of things would not happen if those who had its control
or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant, that the injury arose from or was caused
by the defendants want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of
the accident in order to establish negligence. The inference which the doctrine permits is
grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is
practically accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the cause,
for any explanation of care exercised by the defendant in respect of the matter of which the
plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in
that it proceeds on the theory that under the peculiar circumstances in which the doctrine is
applicable, it is within the power of the defendant to show that there was no negligence on his
part, and direct proof of defendants negligence is beyond plaintiffs power. Accordingly, some
court add to the three prerequisites for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party
had no knowledge or means of knowledge as to the cause of the accident, or that the party to be
charged with negligence has superior knowledge or opportunity for explanation of the accident. 23
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14 th floor of a building to the
basement while he was working with appellants construction project, resulting to his death. The
construction site is within the exclusive control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman and others who are in complete control of
the situation therein. The circumstances of any accident that would occur therein are peculiarly
within the knowledge of the appellant or its employees. On the other hand, the appellee is not in a
position to know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies
where evidence is absent or not readily available, provided the following requisites are present:
(1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the injury was under the exclusive control of the

person charged with negligence; and (3) the injury suffered must not have been due to any
voluntary action or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14th floor of a building to the basement while performing
work in a construction site unless someone is negligent[;] thus, the first requisite for the
application of the rule of res ipsa loquitur is present. As explained earlier, the construction site
with all its paraphernalia and human resources that likely caused the injury is under the exclusive
control and management of appellant[;] thus[,] the second requisite is also present. No
contributory negligence was attributed to the appellees deceased husband[;] thus[,] the last
requisite is also present. All the requisites for the application of the rule of res ipsa loquitur are
present, thus a reasonable presumption or inference of appellants negligence arises. x x x. 24
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements, the
burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or overcome
by other evidence and, under appropriate circumstances disputable presumption, such as that of due care
or innocence, may outweigh the inference.27 It is not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into
play only after the circumstances for the application of the doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabros sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part of petitioners employees, also assails the same
statement for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. 28 The
inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the
adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an
affidavit is not prepared by the affiant himself but by another who uses his own language in writing the
affiants statements which may either be omitted or misunderstood by the one writing them. 29 Petitioner,
therefore, cannot use said statement as proof of its due care any more than private respondent can use it to
prove the cause of her husbands death. Regrettably, petitioner does not cite any other evidence to rebut
the inference or presumption of negligence arising from the application of res ipsa loquitur, or to
establish any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer damages
under the Civil Code.
Article 173 of the Labor Code states:

Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the
employee, his dependents or anyone otherwise entitled to receive damages on behalf of the
employee or his dependents. The payment of compensation under this Title shall not bar the
recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic
Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six hundred ten,
as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws
whose benefits are administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act, provided
that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an
employee by reason of a personal injury entitling him to compensation shall exclude all other
rights and remedies accruing to the employee, his personal representatives, dependents or nearest
of kin against the employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as under
the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter
in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the workers right
under the Workmens Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by virtue of the negligence or
fault of the employers or whether they may avail themselves cumulatively of both actions, i.e.,
collect the limited compensation under the Workmens Compensation Act and sue in addition for
damages in the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442,
ruled thatan injured worker has a choice of either to recover from the employer the fixed amounts
set by the Workmens Compensation Act or to prosecute an ordinary civil action against the
tortfeasor for higher damages but he cannot pursue both courses of action simultaneously.
[Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the
Civil Code despite having availed of the benefits provided under the Workmens Compensation Act. The
Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May
14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra,
Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for

compensation to the Regional Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they
be paid in installments x x x. Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up
the defense that the claims were filed under the Workmens Compensation Act before they
learned of the official report of the committee created to investigate the accident which
established the criminal negligence and violation of law by Philex, and which report was
forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated
October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving compensation under the Act. Had
petitioners been aware of said violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmens Compensation Commission
which awarded a lesser amount for compensation. The choice of the first remedy was based on
ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The
case should therefore be remanded to the lower court for further proceedings. However, should
the petitioners be successful in their bid before the lower court, the payments made under the
Workmens Compensation Act should be deducted from the damages that may be decreed in their
favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the Act
could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their
employment could be filed only under the Workmens Compensation Law, to the exclusion of all
further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule
that the claimants may invoke either the Workmens Compensation Act or the provisions of the
Civil Code, subject to the consequence that the choice of one remedy will exclude the other and
that the acceptance of compensation under the remedy chosen will preclude a claim for additional
benefits under the other remedy. The exception is where a claimant who has already been paid
under the Workmens Compensation Act may still sue for damages under the Civil Code on the
basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because private respondent
was unaware of petitioners negligence when she filed her claim for death benefits from the State
Insurance Fund. Private respondent filed the civil complaint for damages after she received a copy of the
police investigation report and the Prosecutors Memorandum dismissing the criminal complaint against
petitioners personnel. While stating that there was no negligence attributable to the respondents in the
complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early
as November 25, 1990, the date of the police investigators report. The appellee merely executed
her sworn statement before the police investigator concerning her personal circumstances, her

relation to the victim, and her knowledge of the accident. She did not file the complaint for
"Simple Negligence Resulting to Homicide" against appellants employees. It was the
investigator who recommended the filing of said case and his supervisor referred the same to the
prosecutors office. This is a standard operating procedure for police investigators which appellee
may not have even known. This may explain why no complainant is mentioned in the preliminary
statement of the public prosecutor in her memorandum dated February 6, 1991, to wit:
"Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the appellee did not have a chance to appear
before the public prosecutor as can be inferred from the following statement in said
memorandum: "Respondents who were notified pursuant to Law waived their rights to present
controverting evidence," thus there was no reason for the public prosecutor to summon the
appellee. Hence, notice of appellants negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first payment therefrom. Her
using the police investigation report to support her complaint filed on May 9, 1991 may just be an
afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutors
Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The
death of the victim is not attributable to any negligence on the part of the respondents. If at all
and as shown by the records this case is civil in nature." (Underscoring supplied.) Considering the
foregoing, We are more inclined to believe appellees allegation that she learned about appellants
negligence only after she applied for and received the benefits under ECC. This is a mistake of
fact that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the death of
her husband; and that she did not know that she may also recover more from the Civil Code than
from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early as
November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple
Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991, two months
before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that,
although there was insufficient evidence against petitioners employees, the case was "civil in nature."
These purportedly show that prior to her receipt of death benefits from the ECC on January 2, 1991 and
every month thereafter, private respondent also knew of the two choices of remedies available to her and
yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on the
moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is not
to prevent any recourse to any remedy, but to prevent a double redress for a single wrong. 38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an
ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to
have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that the
person against whom the waiver is asserted had at the time knowledge, actual or constructive, of
the existence of the partys rights or of all material facts upon which they depended. Where one
lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a
material fact negates waiver, and waiver cannot be established by a consent given under a mistake
or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a right exists and
has adequate knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to plead
waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is waived. It is, therefore,
perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when
petitioner itself pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her husbands death and the
rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of which
private respondent purportedly learned only after the prosecutor issued a resolution stating that there may
be civil liability. InFloresca, it was the negligence of the mining corporation and its violation of
government rules and regulations. Negligence, or violation of government rules and regulations, for that
matter, however, is not a fact, but aconclusion of law, over which only the courts have the final say. Such
a conclusion binds no one until the courts have decreed so. It appears, therefore, that the principle that
ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash
when on November 15, 1990 she accomplished her application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27, 1990.

There is also no showing that private respondent knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private respondent testified that she was not aware of her
rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Courts ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof
cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total
amount private respondent ought to receive from the ECC, although it appears from Exhibit "K" 43 that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March
1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total
monthly pension was P716.40. Whether the total amount she will eventually receive from the ECC is less
than the sum of P644,000.00 in total damages awarded by the trial court is subject to speculation, and the
case is remanded to the trial court for such determination. Should the trial court find that its award is
greater than that of the ECC, payments already received by private respondent under the Labor Code shall
be deducted from the trial court' award of damages. Consistent with our ruling in Floresca, this
adjudication aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether
the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court
be greater than that awarded by the ECC, payments already made to private respondent pursuant to the
Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.