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G.R. No.

L-11390

March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,


vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca
Tanquinyeng, defendant-appellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco EspanolFilipino" to foreclose a mortgage upon various parcels of real property
situated in the city of Manila. The mortgage in question is dated June 16,
1906, and was executed by the original defendant herein, Engracio Palanca
Tanquinyeng y Limquingco, as security for a debt owing by him to the bank.
Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing
interest at the rate of 8 per centum per annum, payable at the end of each
quarter. It appears that the parties to this mortgage at that time estimated
the value of the property in question at P292,558, which was about P75,000
in excess of the indebtedness. After the execution of this instrument by the
mortgagor, he returned to China which appears to have been his native
country; and he there died, upon January 29, 1810, without again returning
to the Philippine Islands.
As the defendant was a nonresident at the time of the institution of the
present action, it was necessary for the plaintiff in the foreclosure proceeding
to give notice to the defendant by publication pursuant to section 399 of the
Code of Civil Procedure. An order for publication was accordingly obtained
from the court, and publication was made in due form in a newspaper of the
city of Manila. At the same time that the order of the court should deposit in
the post office in a stamped envelope a copy of the summons and complaint
directed to the defendant at his last place of residence, to wit, the city of
Amoy, in the Empire of China. This order was made pursuant to the following
provision contained in section 399 of the Code of Civil Procedure:
In case of publication, where the residence of a nonresident or absent
defendant is known, the judge must direct a copy of the summons and
complaint to be forthwith deposited by the clerk in the post-office,
postage prepaid, directed to the person to be served, at his place of
residence
Whether the clerk complied with this order does not affirmatively appear.
There is, however, among the papers pertaining to this case, an affidavit,

dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the


attorneys of the bank, showing that upon that date he had deposited in the
Manila post-office a registered letter, addressed to Engracio Palanca
Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's
affidavit, the summons, and the order of the court directing publication as
aforesaid. It appears from the postmaster's receipt that Bernardo probably
used an envelope obtained from the clerk's office, as the receipt purports to
show that the letter emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the
defendant not having appeared, judgment was, upon July 2, 1908, taken
against him by default. Upon July 3, 1908, a decision was rendered in favor of
the plaintiff. In this decision it was recited that publication had been properly
made in a periodical, but nothing was said about this notice having been
given mail. The court, upon this occasion, found that the indebtedness of the
defendant amounted to P249,355. 32, with interest from March 31, 1908.
Accordingly it was ordered that the defendant should, on or before July 6,
1908, deliver said amount to the clerk of the court to be applied to the
satisfaction of the judgment, and it was declared that in case of the failure of
the defendant to satisfy the judgment within such period, the mortgage
property located in the city of Manila should be exposed to public sale. The
payment contemplated in said order was never made; and upon July 8, 1908,
the court ordered the sale of the property. The sale took place upon July 30,
1908, and the property was bought in by the bank for the sum of P110,200.
Upon August 7, 1908, this sale was confirmed by the court.
About seven years after the confirmation of this sale, or to the precise, upon
June 25, 1915, a motion was made in this cause by Vicente Palanca, as
administrator of the estate of the original defendant, Engracio Palanca
Tanquinyeng y Limquingco, wherein the applicant requested the court to set
aside the order of default of July 2, 1908, and the judgment rendered upon
July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis
of this application, as set forth in the motion itself, was that the order of
default and the judgment rendered thereon were void because the court had
never acquired jurisdiction over the defendant or over the subject of the
action.
At the hearing in the court below the application to vacate the judgment was
denied, and from this action of the court Vicente Planca, as administrator of
the estate of the original defendant, has appealed. No other feature of the
case is here under consideration than such as related to the action of the
court upon said motion.
The case presents several questions of importance, which will be discussed
in what appears to be the sequence of most convenient development. In the
first part of this opinion we shall, for the purpose of argument, assume that

the clerk of the Court of First Instance did not obey the order of the court in
the matter of mailing the papers which he was directed to send to the
defendant in Amoy; and in this connection we shall consider, first, whether
the court acquired the necessary jurisdiction to enable it to proceed with the
foreclosure of the mortgage and, secondly, whether those proceedings were
conducted in such manner as to constitute due process of law.
The word "jurisdiction," as applied to the faculty of exercising judicial power,
is used in several different, though related, senses since it may have
reference (1) to the authority of the court to entertain a particular kind of
action or to administer a particular kind of relief, or it may refer to the power
of the court over the parties, or (2) over the property which is the subject to
the litigation.
The sovereign authority which organizes a court determines the nature and
extent of its powers in general and thus fixes its competency or jurisdiction
with reference to the actions which it may entertain and the relief it may
grant.
Jurisdiction over the person is acquired by the voluntary appearance of a
party in court and his submission to its authority, or it is acquired by the
coercive power of legal process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may result
either from a seizure of the property under legal process, whereby it is
brought into the actual custody of the law, or it may result from the
institution of legal proceedings wherein, under special provisions of law, the
power of the court over the property is recognized and made effective. In the
latter case the property, though at all times within the potential power of the
court, may never be taken into actual custody at all. An illustration of the
jurisdiction acquired by actual seizure is found in attachment proceedings,
where the property is seized at the beginning of the action, or some
subsequent stage of its progress, and held to abide the final event of the
litigation. An illustration of what we term potential jurisdiction over the res, is
found in the proceeding to register the title of land under our system for the
registration of land. Here the court, without taking actual physical control
over the property assumes, at the instance of some person claiming to be
owner, to exercise a jurisdiction in rem over the property and to adjudicate
the title in favor of the petitioner against all the world.
In the terminology of American law the action to foreclose a mortgage is said
to be a proceeding quasi in rem, by which is expressed the idea that while it
is not strictly speaking an action in rem yet it partakes of that nature and is
substantially such. The expression "action in rem" is, in its narrow
application, used only with reference to certain proceedings in courts of
admiralty wherein the property alone is treated as responsible for the claim

or obligation upon which the proceedings are based. The action quasi rem
differs from the true action in rem in the circumstance that in the former an
individual is named as defendant, and the purpose of the proceeding is to
subject his interest therein to the obligation or lien burdening the property.
All proceedings having for their sole object the sale or other disposition of
the property of the defendant, whether by attachment, foreclosure, or other
form of remedy, are in a general way thus designated. The judgment entered
in these proceedings is conclusive only between the parties.
In speaking of the proceeding to foreclose a mortgage the author of a well
known treaties, has said:
Though nominally against person, such suits are to vindicate liens;
they proceed upon seizure; they treat property as primarily indebted;
and, with the qualification above-mentioned, they are substantially
property actions. In the civil law, they are styled hypothecary actions,
and their sole object is the enforcement of the lien against the res; in
the common law, they would be different in chancery did not treat the
conditional conveyance as a mere hypothecation, and the creditor's
right ass an equitable lien; so, in both, the suit is real action so far as it
is against property, and seeks the judicial recognition of a property
debt, and an order for the sale of the res. (Waples, Proceedings In Rem.
sec. 607.)
It is true that in proceedings of this character, if the defendant for whom
publication is made appears, the action becomes as to him a personal action
and is conducted as such. This, however, does not affect the proposition that
where the defendant fails to appear the action is quasi in rem; and it should
therefore be considered with reference to the principles governing actions in
rem.
There is an instructive analogy between the foreclosure proceeding and an
action of attachment, concerning which the Supreme Court of the United
States has used the following language:
If the defendant appears, the cause becomes mainly a suit in
personam, with the added incident, that the property attached remains
liable, under the control of the court, to answer to any demand which
may be established against the defendant by the final judgment of the
court. But, if there is no appearance of the defendant, and no service
of process on him, the case becomes, in its essential nature, a
proceeding in rem, the only effect of which is to subject the property
attached to the payment of the defendant which the court may find to
be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.)

In an ordinary attachment proceeding, if the defendant is not personally


served, the preliminary seizure is to, be considered necessary in order to
confer jurisdiction upon the court. In this case the lien on the property is
acquired by the seizure; and the purpose of the proceedings is to subject the
property to that lien. If a lien already exists, whether created by mortgage,
contract, or statute, the preliminary seizure is not necessary; and the court
proceeds to enforce such lien in the manner provided by law precisely as
though the property had been seized upon attachment. (Roller vs. Holly, 176
U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in
an attachment the property may be seized at the inception of the
proceedings, while in the foreclosure suit it is not taken into legal custody
until the time comes for the sale, does not materially affect the fundamental
principle involved in both cases, which is that the court is here exercising a
jurisdiction over the property in a proceeding directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First
Instance in a mortgage foreclosure, it is evident that the court derives its
authority to entertain the action primarily from the statutes organizing the
court. The jurisdiction of the court, in this most general sense, over the
cause of action is obvious and requires no comment. Jurisdiction over the
person of the defendant, if acquired at all in such an action, is obtained by
the voluntary submission of the defendant or by the personal service of
process upon him within the territory where the process is valid. If, however,
the defendant is a nonresident and, remaining beyond the range of the
personal process of the court, refuses to come in voluntarily, the court never
acquires jurisdiction over the person at all. Here the property itself is in fact
the sole thing which is impleaded and is the responsible object which is the
subject of the exercise of judicial power. It follows that the jurisdiction of the
court in such case is based exclusively on the power which, under the law, it
possesses over the property; and any discussion relative to the jurisdiction of
the court over the person of the defendant is entirely apart from the case.
The jurisdiction of the court over the property, considered as the exclusive
object of such action, is evidently based upon the following conditions and
considerations, namely: (1) that the property is located within the district; (2)
that the purpose of the litigation is to subject the property by sale to an
obligation fixed upon it by the mortgage; and (3) that the court at a proper
stage of the proceedings takes the property into custody, if necessary, and
expose it to sale for the purpose of satisfying the mortgage debt. An obvious
corollary is that no other relief can be granted in this proceeding than such
as can be enforced against the property.
We may then, from what has been stated, formulated the following
proposition relative to the foreclosure proceeding against the property of a
nonresident mortgagor who fails to come in and submit himself personally to
the jurisdiction of the court: (I) That the jurisdiction of the court is derived
from the power which it possesses over the property; (II) that jurisdiction

over the person is not acquired and is nonessential; (III) that the relief
granted by the court must be limited to such as can be enforced against the
property itself.
It is important that the bearing of these propositions be clearly apprehended,
for there are many expressions in the American reports from which it might
be inferred that the court acquires personal jurisdiction over the person of
the defendant by publication and notice; but such is not the case. In truth
the proposition that jurisdiction over the person of a nonresident cannot be
acquired by publication and notice was never clearly understood even in the
American courts until after the decision had been rendered by the Supreme
Court of the United States in the leading case of Pennoyer vs. Neff (95 U. S.
714; 24 L. ed., 565). In the light of that decision, and of other decisions which
have subsequently been rendered in that and other courts, the proposition
that jurisdiction over the person cannot be thus acquired by publication and
notice is no longer open to question; and it is now fully established that a
personal judgment upon constructive or substituted service against a
nonresident who does not appear is wholly invalid. This doctrine applies to all
kinds of constructive or substituted process, including service by publication
and personal service outside of the jurisdiction in which the judgment is
rendered; and the only exception seems to be found in the case where the
nonresident defendant has expressly or impliedly consented to the mode of
service. (Note to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R.
A., 585; 35 L. R. A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is
that the process from the tribunals of one State cannot run into other States
or countries and that due process of law requires that the defendant shall be
brought under the power of the court by service of process within the State,
or by his voluntary appearance, in order to authorize the court to pass upon
the question of his personal liability. The doctrine established by the
Supreme Court of the United States on this point, being based upon the
constitutional conception of due process of law, is binding upon the courts of
the Philippine Islands. Involved in this decision is the principle that in
proceedings in rem or quasi in rem against a nonresident who is not served
personally within the state, and who does not appear, the relief must be
confined to the res, and the court cannot lawfully render a personal
judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665;
Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)
Therefore in an action to foreclose a mortgage against a nonresident, upon
whom service has been effected exclusively by publication, no personal
judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279;
Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in the
court below offends against the principle just stated and that this judgment

is void because the court in fact entered a personal judgment against the
absent debtor for the full amount of the indebtedness secured by the
mortgage. We do not so interpret the judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for
the court, as in all cases of foreclosure, to ascertain the amount due, as
prescribed in section 256 of the Code of Civil Procedure, and to make an
order requiring the defendant to pay the money into court. This step is a
necessary precursor of the order of sale. In the present case the judgment
which was entered contains the following words:
Because it is declared that the said defendant Engracio Palanca
Tanquinyeng y Limquingco, is indebted in the amount of P249,355.32,
plus the interest, to the 'Banco Espanol-Filipino' . . . therefore said
appellant is ordered to deliver the above amount etc., etc.
This is not the language of a personal judgment. Instead it is clearly intended
merely as a compliance with the requirement that the amount due shall be
ascertained and that the evidence of this it may be observed that according
to the Code of Civil Procedure a personal judgment against the debtor for the
deficiency is not to be rendered until after the property has been sold and
the proceeds applied to the mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that whatever may be the
effect in other respects of the failure of the clerk of the Court of First Instance
to mail the proper papers to the defendant in Amoy, China, such irregularity
could in no wise impair or defeat the jurisdiction of the court, for in our
opinion that jurisdiction rest upon a basis much more secure than would be
supplied by any form of notice that could be given to a resident of a foreign
country.
Before leaving this branch of the case, we wish to observe that we are fully
aware that many reported cases can be cited in which it is assumed that the
question of the sufficiency of publication or notice in a case of this kind is a
question affecting the jurisdiction of the court, and the court is sometimes
said to acquire jurisdiction by virtue of the publication. This phraseology was
undoubtedly originally adopted by the court because of the analogy between
service by the publication and personal service of process upon the
defendant; and, as has already been suggested, prior to the decision of
Pennoyer vs. Neff (supra) the difference between the legal effects of the two
forms of service was obscure. It is accordingly not surprising that the modes
of expression which had already been molded into legal tradition before that
case was decided have been brought down to the present day. But it is clear
that the legal principle here involved is not effected by the peculiar language
in which the courts have expounded their ideas.

We now proceed to a discussion of the question whether the supposed


irregularity in the proceedings was of such gravity as to amount to a denial
of that "due process of law" which was secured by the Act of Congress in
force in these Islands at the time this mortgage was foreclosed. (Act of July 1,
1902, sec. 5.) In dealing with questions involving the application of the
constitutional provisions relating to due process of law the Supreme Court of
the United States has refrained from attempting to define with precision the
meaning of that expression, the reason being that the idea expressed therein
is applicable under so many diverse conditions as to make any attempt ay
precise definition hazardous and unprofitable. As applied to a judicial
proceeding, however, it may be laid down with certainty that the
requirement of due process is satisfied if the following conditions are
present, namely; (1) There must be a court or tribunal clothed with judicial
power to hear and determine the matter before it; (2) jurisdiction must be
lawfully acquired over the person of the defendant or over the property
which is the subject of the proceeding; (3) the defendant must be given an
opportunity to be heard; and (4) judgment must be rendered upon lawful
hearing.
Passing at once to the requisite that the defendant shall have an opportunity
to be heard, we observe that in a foreclosure case some notification of the
proceedings to the nonresident owner, prescribing the time within which
appearance must be made, is everywhere recognized as essential. To answer
this necessity the statutes generally provide for publication, and usually in
addition thereto, for the mailing of notice to the defendant, if his residence is
known. Though commonly called constructive, or substituted service of
process in any true sense. It is merely a means provided by law whereby the
owner may be admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take such steps as he sees
fit to protect it. In speaking of notice of this character a distinguish master of
constitutional law has used the following language:
. . . if the owners are named in the proceedings, and personal notice is
provided for, it is rather from tenderness to their interests, and in order
to make sure that the opportunity for a hearing shall not be lost to
them, than from any necessity that the case shall assume that form.
(Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U. S.,
79, 80.)
It will be observed that this mode of notification does not involve any
absolute assurance that the absent owner shall thereby receive actual
notice. The periodical containing the publication may never in fact come to
his hands, and the chances that he should discover the notice may often be
very slight. Even where notice is sent by mail the probability of his receiving
it, though much increased, is dependent upon the correctness of the address
to which it is forwarded as well as upon the regularity and security of the

mail service. It will be noted, furthermore, that the provision of our law
relative to the mailing of notice does not absolutely require the mailing of
notice unconditionally and in every event, but only in the case where the
defendant's residence is known. In the light of all these facts, it is evident
that actual notice to the defendant in cases of this kind is not, under the law,
to be considered absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means
of notification which may fall short of actual notice is apparently this:
Property is always assumed to be in the possession of its owner, in person or
by agent; and he may be safely held, under certain conditions, to be affected
with knowledge that proceedings have been instituted for its condemnation
and sale.
It is the duty of the owner of real estate, who is a nonresident, to take
measures that in some way he shall be represented when his property
is called into requisition, and if he fails to do this, and fails to get notice
by the ordinary publications which have usually been required in such
cases, it is his misfortune, and he must abide the consequences. (6 R.
C. L., sec. 445 [p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by legal process upon
the constructive notice, then our statutes were passed in vain, and are
mere empty legislative declarations, without either force, or meaning;
for if the person is not within the jurisdiction of the court, no personal
judgment can be rendered, and if the judgment cannot operate upon
the property, then no effective judgment at all can be rendered, so that
the result would be that the courts would be powerless to assist a
citizen against a nonresident. Such a result would be a deplorable one.
(Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative to
publication or other form of notice against a nonresident owner should be
complied with; and in respect to the publication of notice in the newspaper it
may be stated that strict compliance with the requirements of the law has
been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc.,
Railroad Co. (139 U. S., 137, 138), it was held that where newspaper
publication was made for 19 weeks, when the statute required 20, the
publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of
notice by mail, the requirement is that the judge shall direct that the notice
be deposited in the mail by the clerk of the court, and it is not in terms
declared that the notice must be deposited in the mail. We consider this to

be of some significance; and it seems to us that, having due regard to the


principles upon which the giving of such notice is required, the absent owner
of the mortgaged property must, so far as the due process of law is
concerned, take the risk incident to the possible failure of the clerk to
perform his duty, somewhat as he takes the risk that the mail clerk or the
mail carrier might possibly lose or destroy the parcel or envelope containing
the notice before it should reach its destination and be delivered to him. This
idea seems to be strengthened by the consideration that placing upon the
clerk the duty of sending notice by mail, the performance of that act is put
effectually beyond the control of the plaintiff in the litigation. At any rate it is
obvious that so much of section 399 of the Code of Civil Procedure as relates
to the sending of notice by mail was complied with when the court made the
order. The question as to what may be the consequences of the failure of the
record to show the proof of compliance with that requirement will be
discussed by us further on.
The observations which have just been made lead to the conclusion that the
failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not
such an irregularity, as amounts to a denial of due process of law; and hence
in our opinion that irregularity, if proved, would not avoid the judgment in
this case. Notice was given by publication in a newspaper and this is the only
form of notice which the law unconditionally requires. This in our opinion is
all that was absolutely necessary to sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes
a difference whether it be viewed as a question involving jurisdiction or as a
question involving due process of law. In the matter of jurisdiction there can
be no distinction between the much and the little. The court either has
jurisdiction or it has not; and if the requirement as to the mailing of notice
should be considered as a step antecedent to the acquiring of jurisdiction,
there could be no escape from the conclusion that the failure to take that
step was fatal to the validity of the judgment. In the application of the idea of
due process of law, on the other hand, it is clearly unnecessary to be so
rigorous. The jurisdiction being once established, all that due process of law
thereafter requires is an opportunity for the defendant to be heard; and as
publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. We think that in
applying the requirement of due process of law, it is permissible to reflect
upon the purposes of the provision which is supposed to have been violated
and the principle underlying the exercise of judicial power in these
proceedings. Judge in the light of these conceptions, we think that the
provision of Act of Congress declaring that no person shall be deprived of his
property without due process of law has not been infringed.
In the progress of this discussion we have stated the two conclusions; (1)
that the failure of the clerk to send the notice to the defendant by mail did

not destroy the jurisdiction of the court and (2) that such irregularity did not
infringe the requirement of due process of law. As a consequence of these
conclusions the irregularity in question is in some measure shorn of its
potency. It is still necessary, however, to consider its effect considered as a
simple irregularity of procedure; and it would be idle to pretend that even in
this aspect the irregularity is not grave enough. From this point of view,
however, it is obvious that any motion to vacate the judgment on the ground
of the irregularity in question must fail unless it shows that the defendant
was prejudiced by that irregularity. The least, therefore, that can be required
of the proponent of such a motion is to show that he had a good defense
against the action to foreclose the mortgage. Nothing of the kind is,
however, shown either in the motion or in the affidavit which accompanies
the motion.
An application to open or vacate a judgment because of an irregularity or
defect in the proceedings is usually required to be supported by an affidavit
showing the grounds on which the relief is sought, and in addition to this
showing also a meritorious defense to the action. It is held that a general
statement that a party has a good defense to the action is insufficient. The
necessary facts must be averred. Of course if a judgment is void upon its
face a showing of the existence of a meritorious defense is not necessary.
(10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the
case. In this connection we quote the following passage from the
encyclopedic treatise now in course of publication:
Where, however, the judgment is not void on its face, and may
therefore be enforced if permitted to stand on the record, courts in
many instances refuse to exercise their quasi equitable powers to
vacate a judgement after the lapse of the term ay which it was
entered, except in clear cases, to promote the ends of justice, and
where it appears that the party making the application is himself
without fault and has acted in good faith and with ordinary diligence.
Laches on the part of the applicant, if unexplained, is deemed
sufficient ground for refusing the relief to which he might otherwise be
entitled. Something is due to the finality of judgments, and
acquiescence or unnecessary delay is fatal to motions of this
character, since courts are always reluctant to interfere with
judgments, and especially where they have been executed or satisfied.
The moving party has the burden of showing diligence, and unless it is
shown affirmatively the court will not ordinarily exercise its discretion
in his favor. (15 R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng
y Limquingco, died January 29, 1910. The mortgage under which the

property was sold was executed far back in 1906; and the proceedings in the
foreclosure were closed by the order of court confirming the sale dated
August 7, 1908. It passes the rational bounds of human credulity to suppose
that a man who had placed a mortgage upon property worth nearly P300,000
and had then gone away from the scene of his life activities to end his days
in the city of Amoy, China, should have long remained in ignorance of the
fact that the mortgage had been foreclosed and the property sold, even
supposing that he had no knowledge of those proceedings while they were
being conducted. It is more in keeping with the ordinary course of things that
he should have acquired information as to what was transpiring in his affairs
at Manila; and upon the basis of this rational assumption we are authorized,
in the absence of proof to the contrary, to presume that he did have, or soon
acquired, information as to the sale of his property.
The Code of Civil Procedure, indeed, expressly declares that there is a
presumption that things have happened according to the ordinary habits of
life (sec. 334 [26]); and we cannot conceive of a situation more appropriate
than this for applying the presumption thus defined by the lawgiver. In
support of this presumption, as applied to the present case, it is permissible
to consider the probability that the defendant may have received actual
notice of these proceedings from the unofficial notice addressed to him in
Manila which was mailed by an employee of the bank's attorneys. Adopting
almost the exact words used by the Supreme Court of the United States in
Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in
view of the well-known skill of postal officials and employees in making
proper delivery of letters defectively addressed, we think the presumption is
clear and strong that this notice reached the defendant, there being no proof
that it was ever returned by the postal officials as undelivered. And if it was
delivered in Manila, instead of being forwarded to Amoy, China, there is a
probability that the recipient was a person sufficiently interested in his affairs
to send it or communicate its contents to him.
Of course if the jurisdiction of the court or the sufficiency of the process of
law depended upon the mailing of the notice by the clerk, the reflections in
which we are now indulging would be idle and frivolous; but the
considerations mentioned are introduced in order to show the propriety of
applying to this situation the legal presumption to which allusion has been
made. Upon that presumption, supported by the circumstances of this
case, ,we do not hesitate to found the conclusion that the defendant
voluntarily abandoned all thought of saving his property from the obligation
which he had placed upon it; that knowledge of the proceedings should be
imputed to him; and that he acquiesced in the consequences of those
proceedings after they had been accomplished. Under these circumstances it
is clear that the merit of this motion is, as we have already stated, adversely
affected in a high degree by the delay in asking for relief. Nor is it an
adequate reply to say that the proponent of this motion is an administrator

who only qualified a few months before this motion was made. No disability
on the part of the defendant himself existed from the time when the
foreclosure was effected until his death; and we believe that the delay in the
appointment of the administrator and institution of this action is a
circumstance which is imputable to the parties in interest whoever they may
have been. Of course if the minor heirs had instituted an action in their own
right to recover the property, it would have been different.
It is, however, argued that the defendant has suffered prejudice by reason of
the fact that the bank became the purchaser of the property at the
foreclosure sale for a price greatly below that which had been agreed upon in
the mortgage as the upset price of the property. In this connection, it
appears that in article nine of the mortgage which was the subject of this
foreclosure, as amended by the notarial document of July 19, 1906, the
parties to this mortgage made a stipulation to the effect that the value
therein placed upon the mortgaged properties should serve as a basis of sale
in case the debt should remain unpaid and the bank should proceed to a
foreclosure. The upset price stated in that stipulation for all the parcels
involved in this foreclosure was P286,000. It is said in behalf of the appellant
that when the bank bought in the property for the sum of P110,200 it
violated that stipulation.
It has been held by this court that a clause in a mortgage providing for a
tipo, or upset price, does not prevent a foreclosure, nor affect the validity of
a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy
Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Sim and Co.,
5 Phil. Rep., 418.) In both the cases here cited the property was purchased at
the foreclosure sale, not by the creditor or mortgagee, but by a third party.
Whether the same rule should be applied in a case where the mortgagee
himself becomes the purchaser has apparently not been decided by this
court in any reported decision, and this question need not here be
considered, since it is evident that if any liability was incurred by the bank by
purchasing for a price below that fixed in the stipulation, its liability was a
personal liability derived from the contract of mortgage; and as we have
already demonstrated such a liability could not be the subject of adjudication
in an action where the court had no jurisdiction over the person of the
defendant. If the plaintiff bank became liable to account for the difference
between the upset price and the price at which in bought in the property,
that liability remains unaffected by the disposition which the court made of
this case; and the fact that the bank may have violated such an obligation
can in no wise affect the validity of the judgment entered in the Court of First
Instance.
In connection with the entire failure of the motion to show either a
meritorious defense to the action or that the defendant had suffered any
prejudice of which the law can take notice, we may be permitted to add that

in our opinion a motion of this kind, which proposes to unsettle judicial


proceedings long ago closed, can not be considered with favor, unless based
upon grounds which appeal to the conscience of the court. Public policy
requires that judicial proceedings be upheld. The maximum here applicable
is non quieta movere. As was once said by Judge Brewer, afterwards a
member of the Supreme Court of the United States:
Public policy requires that judicial proceedings be upheld, and that
titles obtained in those proceedings be safe from the ruthless hand of
collateral attack. If technical defects are adjudged potent to destroy
such titles, a judicial sale will never realize that value of the property,
for no prudent man will risk his money in bidding for and buying that
title which he has reason to fear may years thereafter be swept away
through some occult and not readily discoverable defect. (Martin vs.
Pond, 30 Fed., 15.)
In the case where that language was used an attempt was made to annul
certain foreclosure proceedings on the ground that the affidavit upon which
the order of publication was based erroneously stated that the State of
Kansas, when he was in fact residing in another State. It was held that this
mistake did not affect the validity of the proceedings.
In the preceding discussion we have assumed that the clerk failed to send
the notice by post as required by the order of the court. We now proceed to
consider whether this is a proper assumption; and the proposition which we
propose to establish is that there is a legal presumption that the clerk
performed his duty as the ministerial officer of the court, which presumption
is not overcome by any other facts appearing in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared
that there is a presumption "that official duty has been regularly performed;"
and in subsection 18 it is declared that there is a presumption "that the
ordinary course of business has been followed." These presumptions are of
course in no sense novelties, as they express ideas which have always been
recognized. Omnia presumuntur rite et solemniter esse acta donec probetur
in contrarium. There is therefore clearly a legal presumption that the clerk
performed his duty about mailing this notice; and we think that strong
considerations of policy require that this presumption should be allowed to
operate with full force under the circumstances of this case. A party to an
action has no control over the clerk of the court; and has no right to meddle
unduly with the business of the clerk in the performance of his duties. Having
no control over this officer, the litigant must depend upon the court to see
that the duties imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion
just stated. There is no principle of law better settled than that after

jurisdiction has once been required, every act of a court of general


jurisdiction shall be presumed to have been rightly done. This rule is applied
to every judgment or decree rendered in the various stages of the
proceedings from their initiation to their completion (Voorhees vs. United
States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with
respect to any fact which must have been established before the court could
have rightly acted, it will be presumed that such fact was properly brought to
its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a decedent] the court
are presumed to have adjudged every question necessary to justify
such order or decree, viz: The death of the owners; that the petitioners
were his administrators; that the personal estate was insufficient to
pay the debts of the deceased; that the private acts of Assembly, as to
the manner of sale, were within the constitutional power of the
Legislature, and that all the provisions of the law as to notices which
are directory to the administrators have been complied with. . . . The
court is not bound to enter upon the record the evidence on which any
fact was decided. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.)
Especially does all this apply after long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255)
contains an instructive discussion in a case analogous to that which is now
before us. It there appeared that in order to foreclose a mortgage in the
State of Kentucky against a nonresident debtor it was necessary that
publication should be made in a newspaper for a specified period of time,
also be posted at the front door of the court house and be published on some
Sunday, immediately after divine service, in such church as the court should
direct. In a certain action judgment had been entered against a nonresident,
after publication in pursuance of these provisions. Many years later the
validity of the proceedings was called in question in another action. It was
proved from the files of an ancient periodical that publication had been made
in its columns as required by law; but no proof was offered to show the
publication of the order at the church, or the posting of it at the front door of
the court-house. It was insisted by one of the parties that the judgment of
the court was void for lack of jurisdiction. But the Supreme Court of the
United States said:
The court which made the decree . . . was a court of general
jurisdiction. Therefore every presumption not inconsistent with the
record is to be indulged in favor of its jurisdiction. . . . It is to be
presumed that the court before making its decree took care of to see
that its order for constructive service, on which its right to make the
decree depended, had been obeyed.

It is true that in this case the former judgment was the subject of collateral ,
or indirect attack, while in the case at bar the motion to vacate the judgment
is direct proceeding for relief against it. The same general presumption,
however, is indulged in favor of the judgment of a court of general
jurisdiction, whether it is the subject of direct or indirect attack the only
difference being that in case of indirect attack the judgment is conclusively
presumed to be valid unless the record affirmatively shows it to be void,
while in case of direct attack the presumption in favor of its validity may in
certain cases be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court made
its decree with the knowledge that the requirements of law had been
complied with appear to be amply sufficient to support the conclusion that
the notice was sent by the clerk as required by the order. It is true that there
ought to be found among the papers on file in this cause an affidavit, as
required by section 400 of the Code of Civil Procedure, showing that the
order was in fact so sent by the clerk; and no such affidavit appears. The
record is therefore silent where it ought to speak. But the very purpose of the
law in recognizing these presumptions is to enable the court to sustain a
prior judgment in the face of such an omission. If we were to hold that the
judgment in this case is void because the proper affidavit is not present in
the file of papers which we call the record, the result would be that in the
future every title in the Islands resting upon a judgment like that now before
us would depend, for its continued security, upon the presence of such
affidavit among the papers and would be liable at any moment to be
destroyed by the disappearance of that piece of paper. We think that no
court, with a proper regard for the security of judicial proceedings and for the
interests which have by law been confided to the courts, would incline to
favor such a conclusion. In our opinion the proper course in a case of this
kind is to hold that the legal presumption that the clerk performed his duty
still maintains notwithstanding the absence from the record of the proper
proof of that fact.
In this connection it is important to bear in mind that under the practice
prevailing in the Philippine Islands the word "record" is used in a loose and
broad sense, as indicating the collective mass of papers which contain the
history of all the successive steps taken in a case and which are finally
deposited in the archives of the clerk's office as a memorial of the litigation.
It is a matter of general information that no judgment roll, or book of final
record, is commonly kept in our courts for the purpose of recording the
pleadings and principal proceedings in actions which have been terminated;
and in particular, no such record is kept in the Court of First Instance of the
city of Manila. There is, indeed, a section of the Code of Civil Procedure which
directs that such a book of final record shall be kept; but this provision has,
as a matter of common knowledge, been generally ignored. The result is that
in the present case we do not have the assistance of the recitals of such a

record to enable us to pass upon the validity of this judgment and as already
stated the question must be determined by examining the papers contained
in the entire file.
But it is insisted by counsel for this motion that the affidavit of Bernardo
Chan y Garcia showing that upon April 4, 1908, he sent a notification through
the mail addressed to the defendant at Manila, Philippine Islands, should be
accepted as affirmative proof that the clerk of the court failed in his duty and
that, instead of himself sending the requisite notice through the mail, he
relied upon Bernardo to send it for him. We do not think that this is by any
means a necessary inference. Of course if it had affirmatively appeared that
the clerk himself had attempted to comply with this order and had directed
the notification to Manila when he should have directed it to Amoy, this
would be conclusive that he had failed to comply with the exact terms of the
order; but such is not this case. That the clerk of the attorneys for the
plaintiff erroneously sent a notification to the defendant at a mistaken
address affords in our opinion very slight basis for supposing that the clerk
may not have sent notice to the right address.
There is undoubtedly good authority to support the position that when the
record states the evidence or makes an averment with reference to a
jurisdictional fact, it will not be presumed that there was other or different
evidence respecting the fact, or that the fact was otherwise than stated. If, to
give an illustration, it appears from the return of the officer that the
summons was served at a particular place or in a particular manner, it will
not be presumed that service was also made at another place or in a
different manner; or if it appears that service was made upon a person other
than the defendant, it will not be presumed, in the silence of the record, that
it was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366;
Settlemier vs. Sullivan, 97 U. S., 444, 449). While we believe that these
propositions are entirely correct as applied to the case where the person
making the return is the officer who is by law required to make the return, we
do not think that it is properly applicable where, as in the present case, the
affidavit was made by a person who, so far as the provisions of law are
concerned, was a mere intermeddler.
The last question of importance which we propose to consider is whether a
motion in the cause is admissible as a proceeding to obtain relief in such a
case as this. If the motion prevails the judgment of July 2, 1908, and all
subsequent proceedings will be set aside, and the litigation will be renewed,
proceeding again from the date mentioned as if the progress of the action
had not been interrupted. The proponent of the motion does not ask the
favor of being permitted to interpose a defense. His purpose is merely to
annul the effective judgment of the court, to the end that the litigation may
again resume its regular course.

There is only one section of the Code of Civil Procedure which expressly
recognizes the authority of a Court of First Instance to set aside a final
judgment and permit a renewal of the litigation in the same cause. This is as
follows:
SEC. 113. Upon such terms as may be just the court may relieve a
party or legal representative from the judgment, order, or other
proceeding taken against him through his mistake, inadvertence,
surprise, or excusable neglect; Provided, That application thereof be
made within a reasonable time, but in no case exceeding six months
after such judgment, order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by section
513 of the same Code. The first paragraph of this section, in so far as
pertinent to this discussion, provides as follows:
When a judgment is rendered by a Court of First Instance upon default,
and a party thereto is unjustly deprived of a hearing by fraud, accident,
mistake or excusable negligence, and the Court of First Instance which
rendered the judgment has finally adjourned so that no adequate
remedy exists in that court, the party so deprived of a hearing may
present his petition to the Supreme Court within sixty days after he
first learns of the rendition of such judgment, and not thereafter,
setting forth the facts and praying to have judgment set aside. . . .
It is evident that the proceeding contemplated in this section is intended to
supplement the remedy provided by section 113; and we believe the
conclusion irresistible that there is no other means recognized by law
whereby a defeated party can, by a proceeding in the same cause, procure a
judgment to be set aside, with a view to the renewal of the litigation.
The Code of Civil Procedure purports to be a complete system of practice in
civil causes, and it contains provisions describing with much fullness the
various steps to be taken in the conduct of such proceedings. To this end it
defines with precision the method of beginning, conducting, and concluding
the civil action of whatever species; and by section 795 of the same Code it
is declared that the procedure in all civil action shall be in accordance with
the provisions of this Code. We are therefore of the opinion that the remedies
prescribed in sections 113 and 513 are exclusive of all others, so far as
relates to the opening and continuation of a litigation which has been once
concluded.
The motion in the present case does not conform to the requirements of
either of these provisions; and the consequence is that in our opinion the
action of the Court of First Instance in dismissing the motion was proper.

If the question were admittedly one relating merely to an irregularity of


procedure, we cannot suppose that this proceeding would have taken the
form of a motion in the cause, since it is clear that, if based on such an error,
the came to late for relief in the Court of First Instance. But as we have
already seen, the motion attacks the judgment of the court as void for want
of jurisdiction over the defendant. The idea underlying the motion therefore
is that inasmuch as the judgment is a nullity it can be attacked in any way
and at any time. If the judgment were in fact void upon its face, that is, if it
were shown to be a nullity by virtue of its own recitals, there might possibly
be something in this. Where a judgment or judicial order is void in this sense
it may be said to be a lawless thing, which can be treated as an outlaw and
slain at sight, or ignored wherever and whenever it exhibits its head.
But the judgment in question is not void in any such sense. It is entirely
regular in form, and the alleged defect is one which is not apparent upon its
face. It follows that even if the judgment could be shown to be void for want
of jurisdiction, or for lack of due process of law, the party aggrieved thereby
is bound to resort to some appropriate proceeding to obtain relief. Under
accepted principles of law and practice, long recognized in American courts,
a proper remedy in such case, after the time for appeal or review has
passed, is for the aggrieved party to bring an action to enjoin the judgment,
if not already carried into effect; or if the property has already been disposed
of he may institute suit to recover it. In every situation of this character an
appropriate remedy is at hand; and if property has been taken without due
process, the law concedes due process to recover it. We accordingly old that,
assuming the judgment to have been void as alleged by the proponent of
this motion, the proper remedy was by an original proceeding and not by
motion in the cause. As we have already seen our Code of Civil Procedure
defines the conditions under which relief against a judgment may be
productive of conclusion for this court to recognize such a proceeding as
proper under conditions different from those defined by law. Upon the point
of procedure here involved, we refer to the case of People vs. Harrison (84
Cal., 607) wherein it was held that a motion will not lie to vacate a judgment
after the lapse of the time limited by statute if the judgment is not void on its
face; and in all cases, after the lapse of the time limited by statute if the
judgment is not void on its face; and all cases, after the lapse of such time,
when an attempt is made to vacate the judgment by a proceeding in court
for that purpose an action regularly brought is preferable, and should be
required. It will be noted taken verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed
from is without error, and the same is accordingly affirmed, with costs. So
ordered.
Arellano, C.J., Torres, Carson, and Avancea, JJ., concur.

Separate Opinions
MALCOLM, J., dissenting:
I dissent. It will not make me long to state my reasons. An immutable
attribute the fundamental idea of due process of law is that no man
shall be condemned in his person or property without notice and an
opportunity of being heard in his defense. Protection of the parties demands
a strict and an exact compliance with this constitutional provision in our
organic law and of the statutory provisions in amplification. Literally
hundreds of precedents could be cited in support of these axiomatic
principles. Where as in the instant case the defendant received no notice and
had no opportunity to be heard, certainly we cannot say that there is due
process of law. Resultantly, "A judgment which is void upon its face, and
which requires only an inspection of the judgment roll to demonstrate its
want of vitality is a dead limb upon the judicial tree, which should be lopped
off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a
constant menace to the defendant." (Mills vs. Dickons, 6 Rich [S. C.], 487.)
G.R. No. 93891

March 11, 1991

POLLUTION ADJUDICATION BOARD, petitioner


vs.
COURT OF APPEALS and SOLAR TEXTILE FINISHING
CORPORATION, respondents.
Oscar A. Pascua and Charemon Clio L. Borre for petitioner.
Leonardo A. Aurelio for respondent Solar Textile Finishing Corp.

RESOLUTION

FELICIANO, J.:
Petitioner Pollution Adjudication Board ("Board") asks us to review the
Decision and Resolution promulgated on 7 February 1990 and 10 May 1990,
respectively, by the Court of Appeals in C.A.-G R. No. SP 18821 entitled
"Solar Textile Finishing Corporation v. Pollution Adjudication Board." In that
Decision and Resolution, the Court of Appeals reversed an order of the

Regional Trial Court, Quezon City, Branch 77, in Civil Case No. Q-89-2287
dismissing private respondent Solar Textile Finishing Corporation's ("Solar")
petition for certiorari and remanded the case to the trial court for further
proceedings.
On 22 September 1988, petitioner Board issued an ex parte Order directing
Solar immediately to cease and desist from utilizing its wastewater pollution
source installations which were discharging untreated wastewater directly
into a canal leading to the adjacent Tullahan-Tinejeros River. The Order
signed by Hon. Fulgencio Factoran, Jr., as Board Chairman, reads in full as
follows:
Respondent, Solar Textile Finishing Corporation with plant and place of
business at 999 General Pascual Avenue, Malabon, Metro Manila is
involved in bleaching, rinsing and dyeing textiles with wastewater of
about 30 gpm. being directly discharged untreated into the sewer.
Based on findings in the Inspections conducted on 05 November 1986
and 15 November 1986, the volume of untreated wastewater
discharged in the final out fall outside of the plant's compound was
even greater. The result of inspection conducted on 06 September
1988 showed that respondent's Wastewater Treatment Plant was noted
unoperational and the combined wastewater generated from its
operation was about 30 gallons per minute and 80% of the wastewater
was being directly discharged into a drainage canal leading to the
Tullahan-Tinejeros River by means of a by-pass and the remaining 20%
was channelled into the plant's existing Wastewater Treatment Plant
(WTP). Result of the analyses of the sample taken from the by-pass
showed that the wastewater is highly pollutive in terms of Color units,
BOD and Suspended Solids, among others. These acts of respondent in
spite of directives to comply with the requirements are clearly in
violation of Section 8 of Presidential Decree No. 984 and Section 103 of
its Implementing Rules and Regulations and the 1982 Effluent
Regulations.
WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its
Implementing Rules and Regulations, respondent is hereby ordered to
cease and desist from utilizing its wastewater pollution source
installation and discharging its untreated wastewater directly into the
canal leading to the Tullahan-Tinejeros River effective immediately
upon receipt hereof and until such time when it has fully complied with
all the requirements and until further orders from this Board.
SO ORDERED.1
We note that the above Order was based on findings of several inspections of
Solar's plant:

a. inspections conducted on 5 November 1986 and 12 November 1986


by the National Pollution Control Commission ("NPCC"), the
predecessor of the Board ;2 and
b. the inspection conducted on 6 September 1988 by the Department
of Environment and Natural Resources ("DENR").
The findings of these two (2) inspections were that Solar's wastewater
treatment plant was non-operational and that its plant generated about 30
gallons per minute of wastewater, 80% of which was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River. The
remaining 20% of the wastewater was being channeled through Solar's nonoperational wastewater treatment plant. Chemical analysis of samples of
Solar's effluents showed the presence of pollutants on a level in excess of
what was permissible under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September 1988. A
Writ of Execution issued by the Board was received by Solar on 31 March
1989.
Meantime, Solar filed a motion for reconsideration/appeal with prayer for
stay of execution of the Order dated 22 September 1988. Acting on this
motion, the Board issued an Order dated 24 April 1989 allowing Solar to
operate temporarily, to enable the Board to conduct another inspection and
evaluation of Solar's wastewater treatment facilities. In the same Order, the
Board directed the Regional Executive Director of the DENR/ NCR to conduct
the inspection and evaluation within thirty (30) days.
On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon
City, Branch 77, on petition for certiorari with preliminary injunction against
the Board, the petition being docketed as Civil Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two
(2) grounds, i.e., that appeal and not certiorari from the questioned Order of
the Board as well as the Writ of Execution was the proper remedy, and that
the Board's subsequent Order allowing Solar to operate temporarily had
rendered Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals which, in the
Decision here assailed, reversed the Order of dismissal of the trial court and
remanded the case to that court for further proceedings. In addition, the
Court of Appeals declared the Writ of Execution null and void. At the same
time, the Court of Appeals said in the dispositive portion of its Decision that:

. . .. Still and all, this decision is without prejudice to whatever action


the appellee [Board] may take relative to the projected 'inspection and
evaluation' of appellant's [Solar's] water treatment facilities. 3
The Court of Appeals, in so ruling, held that certiorari was a proper remedy
since the Orders of petitioner Board may result in great and irreparable injury
to Solar; and that while the case might be moot and academic, "larger
issues" demanded that the question of due process be settled. Petitioner
Board moved for reconsideration, without success.
The Board is now before us on a Petition for Review basically arguing that:
1. its ex parte Order dated 22 September 1988 and the Writ of
Execution were issued in accordance with law and were not violative of
the requirements of due process; and
2. the ex parte Order and the Writ of Execution are not the proper
subjects of a petition for certiorari.
The only issue before us at this time is whether or not the Court of Appeals
erred in reversing the trial court on the ground that Solar had been denied
due process by the Board.
Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal
authority to issue ex parte orders to suspend the operations of an
establishment when there is prima facie evidence that such establishment is
discharging effluents or wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the Board). Petitioner
Board contends that the reports before it concerning the effluent discharges
of Solar into the Tullahan-Tinejeros River provided prima facie evidence of
violation by Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own rules and
regulations, an ex parte order may issue only if the effluents discharged pose
an "immediate threat to life, public health, safety or welfare, or to animal and
plant life." In the instant case, according to Solar, the inspection reports
before the Board made no finding that Solar's wastewater discharged posed
such a threat.
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984
authorized petitioner Board to issue ex parte cease and desist orders under
the following circumstances:
P.D. 984, Section 7, paragraph (a), provides:

(a) Public Hearing. . . . Provided, That whenever the Commission finds


prima facie evidence that the discharged sewage or wastes are of
immediate threat to life, public health, safety or welfare, or to animal
or plant life, or exceeds the allowable standards set by the
Commission, the Commissioner may issue an ex-parte order directing
the discontinuance of the same or the temporary suspension or
cessation of operation of the establishment or person generating such
sewage or wastes without the necessity of a prior public hearing. The
said ex-parte order shall be immediately executory and shall remain in
force until said establishment or person prevents or abates the said
pollution within the allowable standards or modified or nullified by a
competent court. (Emphasis supplied)
We note that under the above-quoted portion of Section 7(a) of P.D. No. 984,
an ex parte cease and desist order may be issued by the Board (a) whenever
the wastes discharged by an establishment pose an "immediate threat to
life, public health, safety or welfare, or to animal or plant life," or (b)
whenever such discharges or wastes exceed "the allowable standards set by
the [NPCC]." On the one hand, it is not essential that the Board prove that an
"immediate threat to life, public health, safety or welfare, or to animal or
plant life" exists before an ex parte cease and desist order may be issued. It
is enough if the Board finds that the wastes discharged do exceed "the
allowable standards set by the [NPCC]." In respect of discharges of wastes as
to which allowable standards have been set by the Commission, the Board
may issue an ex parte cease and desist order when there is prima
facieevidence of an establishment exceeding such allowable standards.
Where, however, the effluents or discharges have not yet been the subject
matter of allowable standards set by the Commission, then the Board may
act on an ex parte basis when it finds at least prima facie proof that the
wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable
standards set by the Commission existing at any given time may well not
cover every possible or imaginable kind of effluent or waste discharge, the
general standard of an "immediate threat to life, public health, safety or
welfare, or to animal and plant life" remains necessary.
Upon the other hand, the Court must assume that the extant allowable
standards have been set by the Commission or Board precisely in order to
avoid or neutralize an "immediate threat to life, public health, safety or
welfare, or to animal or plant life.''
Section 5 of the Effluent Regulations of 1982 4 sets out the maximum
permissible levels of physical and chemical substances which effluents from
domestic wastewater treatment plants and industrial plants" must not
exceed "when discharged into bodies of water classified as Class A, B, C, D,
SB and SC in accordance with the 1978 NPCC Rules and Regulations." The

waters of Tullahan-Tinejeros River are classified as inland waters Class D


under Section 68 of the 1978 NPCC Rules and Regulations 5 which in part
provides that:
Sec. 68. Water Usage and Classification. The quality of Philippine
waters shall be maintained in a safe and satisfactory condition
according to their best usages. For this purpose, all water shall be
classified according to the following beneficial usages:
(a) Fresh Surface Water
Classification
xxx

xxx

Best usage
xxx

Class D
For agriculture, irrigation,
livestock watering and industrial
cooling and processing.
xxx

xxx

xxx

(Emphases supplied)
The reports on the inspections carried on Solar's wastewater treatment
facilities on 5 and 12 November 1986 and 6 September 1988 set forth the
following Identical finding:
a. For legal action in [view of] implementing rules and regulations of
P.D. No. 984 and Section 5 of the Effluent Regulations of 1982. 6
Placing the maximum allowable standards set in Section 5 of the Effluent
Regulations of 1982 alongside the findings of the November 1986 and
September 1988 inspection reports, we get the following results:

"Inland
Waters
(Class C & D7
a) Color in
platinum
cobalt

100

a) Color units
(Apparent
Color)

November
1986
Report8
Station 1
250

September
1988
Report9
Station 1
125

b)
c)
d)
e)
f)
g)
h)

units
pH
Temperature in C
Phenols in
mg.1
Suspended
solids in
mg./1.
BOD in
mg./1.
oil/Grease
in mg./1.
Detergents
mg./1."

6-8.5 b) pH
40
c) Temperature
(C)
0.1 d) Phenols in
mg./1.
75
e) Suspended
solids in
mg./1.
80
f) BOD (5-day)
mg./1
10
g) Oil/Grease
mg./1.
5
h) Detergents
mg./1. MBAS
i) Dissolved
oxygen, mg./1.
j) Settleable
Matter, mg./1.
k) Total Dis
solved Solids
mg./1.
l) Total Solids
m) Turbidity

9.3

8.7

340

80

1,100

152

2.93
0
0.4

1.5

800

610

1,400
690
NTU / ppm, SiO3 70

The November 1986 inspections report concluded that:


Records of the Commission show that the plant under its previous
owner, Fine Touch Finishing Corporation, was issued a Notice of
Violation on 20 December 1985 directing same to cease and desist
from conducting dyeing operation until such time the waste treatment
plant is already completed and operational. The new owner Solar
Textile Corporation informed the Commission of the plant acquisition
thru its letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13 October 1986
based on the adverse findings during the inspection/water sampling
test conducted on 08 August 1986. As per instruction of the Legal
Division a re- inspection/sampling text should be conducted first before
an appropriate legal action is instituted; hence, this inspection.
Based on the above findings, it is clear that the new owner
continuously violates the directive of the Commission by undertaking
dyeing operation without completing first and operating its existing

WTP. The analysis of results on water samples taken showed that the
untreated wastewater from the firm pollutes our water resources. In
this connection, it is recommended that appropriate legal action be
instituted immediately against the firm. . . .10
The September 1988 inspection report's conclusions were:
1. The plant was undertaking dyeing, bleaching and rinsing operations
during the inspection. The combined wastewater generated from the
said operations was estimated at about 30 gallons per minute. About
80% of the wastewater was traced directly discharged into a drainage
canal leading to the Tullahan-Tinejeros river by means of a bypass. The
remaining 20% was channeled into the plant's existing wastewater
treatment plant (WTP).
2. The WTP was noted not yet fully operational- some accessories were
not yet installed.1wphi1 Only the sump pit and the holding/collecting
tank are functional but appeared seldom used. The wastewater
mentioned channeled was noted held indefinitely into the collection
tank for primary treatment. There was no effluent discharge [from such
collection tank].
3. A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is
polluted in terms of color units, BOD and suspended solids, among
others. (Please see attached laboratory resul .)11
From the foregoing reports, it is clear to this Court that there was at
least prima facie evidence before the Board that the effluents emanating
from Solar's plant exceeded the maximum allowable levels of physical and
chemical substances set by the NPCC and that accordingly there was
adequate basis supporting the ex parte cease and desist order issued by the
Board. It is also well to note that the previous owner of the plant facility Fine
Touch Finishing Corporation had been issued a Notice of Violation on 20
December 1985 directing it to cease and refrain from carrying out dyeing
operations until the water treatment plant was completed and operational.
Solar, the new owner, informed the NPCC of the acquisition of the plant on
March 1986. Solar was summoned by the NPCC to a hearing on 13 October
1986 based on the results of the sampling test conducted by the NPCC on 8
August 1986. Petitioner Board refrained from issuing an ex parte cease and
desist order until after the November 1986 and September 1988 reinspections were conducted and the violation of applicable standards was
confirmed. In other words, petitioner Board appears to have been remarkably
forbearing in its efforts to enforce the applicable standards vis-a-vis Solar.
Solar, on the other hand, seemed very casual about its continued discharge
of untreated, pollutive effluents into the Tullahan- Tinerejos River,

presumably loath to spend the money necessary to put its Wastewater


Treatment Plant ("WTP") in an operating condition.
In this connection, we note that in Technology Developers, Inc. v. Court of
appeals, et al.,12 the Court very recently upheld the summary closure ordered
by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causing
establishment, after finding that the records showed that:
1. No mayor's permit had been secured. While it is true that the matter
of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is
essentially addressed to the then National Pollution Control
Commission of the Ministry of Human Settlements, now the
Environmental Management Bureau of the Department of Environment
and Natural Resources, it must be recognized that the mayor of a town
has as much responsibility to protect its inhabitants from pollution, and
by virtue of his police power, he may deny the application for a permit
to operate a business or otherwise close the same unless appropriate
measures are taken to control and/or avoid injury to the health of the
residents of the community from the emission in the operation of the
business.
2. The Acting Mayor, in a letter of February l6, 1989, called the
attention of petitioner to the pollution emitted by the fumes of its plant
whose offensive odor "not only pollute the air in the locality but also
affect the health of the residents in the area," so that petitioner was
ordered to stop its operation until further orders and it was required to
bring the following:
xxx

xxx

xxx

(3) Region III-Department of Environment and Natural Resources


Anti-Pollution permit. (Annex A-2, petition)
3. This action of the Acting Mayor was in response to the complaint of
the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Provincial Governor through channels (Annex A-B, petition).. . .
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of
December 8, 1988 observed that the fumes emitted by the plant of
petitioner goes directly to the surrounding houses and that no proper
air pollution device has been installed. (Annex A-9, petition)
xxx

xxx

xxx

6. While petitioner was able to present a temporary permit to operate


by the then National Pollution Control Commission on December
15,1987, the permit was good only up to May 25,1988 (Annex A-12,
petition). Petitioner had not exerted any effort to extend or validate its
permit much less to install any device to control the pollution and
prevent any hazard to the health of the residents of the community."
In the instant case, the ex parte cease and desist Order was issued not by a
local government official but by the Pollution Adjudication Board, the very
agency of the Government charged with the task of determining whether the
effluents of a particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation
over the ultimate correctness or propriety of such orders has run its full
course, including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant pollution
control statute and implementing regulations were enacted and promulgated
in the exercise of that pervasive, sovereign power to protect the safety,
health, and general welfare and comfort of the public, as well as the
protection of plant and animal life, commonly designated as the police
power. It is a constitutional commonplace that the ordinary requirements of
procedural due process yield to the necessities of protecting vital public
interests like those here involved, through the exercise of police power. The
Board's ex parte Order and Writ of Execution would, of course, have
compelled Solar temporarily to stop its plant operations, a state of affairs
Solar could in any case have avoided by simply absorbing the bother and
burden of putting its WTP on an operational basis. Industrial establishments
are not constitutionally entitled to reduce their capitals costs and operating
expenses and to increase their profits by imposing upon the public threats
and risks to its safety, health, general welfare and comfort, by disregarding
the requirements of anti- pollution statutes and their implementing
regulations.
It should perhaps be made clear the Court is not here saying that the
correctness of the ex parte Order and Writ of Execution may not be
contested by Solar in a hearing before the Board itself. Where the
establishment affected by an ex parte cease and desist order contests the
correctness of the prima facie findings of the Board, the Board must hold a
public hearing where such establishment would have an opportunity to
controvert the basis of suchex parte order. That such an opportunity is
subsequently available is really all that is required by the due process clause
of the Constitution in situations like that we have here. The Board's decision

rendered after the public hearing may then be tested judicially by an appeal
to the Court of Appeals in accordance with Section 7(c) of P.D. No. 984 and
Section 42 of the Implementing Rules and Regulations. A subsequent public
hearing is precisely what Solar should have sought instead of going to court
to seek nullification of the Board's Order and Writ of Execution and instead of
appealing to the Court of Appeals. It will be recalled the at the Board in fact
gave Solar authority temporarily to continue operations until still another
inspection of its wastewater treatment facilities and then another analysis of
effluent samples could be taken and evaluated.
Solar claims finally that the petition for certiorari was the proper remedy as
the questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that the Order and Writ of Execution were
entirely within the lawful authority of petitioner Board, the trial court did not
err when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar
did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE and the Decision
of the Court of Appeals dated 7 February 1990 and its Resolution dated 10
May 1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. The Order of
petitioner Board dated 22 September 1988 and the Writ of Execution, as well
as the decision of the trial court dated 21 July 1989, are hereby REINSTATED,
without prejudice to the right of Solar to contest the correctness of the basis
of the Board's Order and Writ of Execution at a public hearing before the
Board.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
EN BANC
[G.R. No. 117040. January 27, 2000]
RUBEN SERRANO, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and ISETANN DEPARTMENT STORE, respondents.
DECISION
MENDOZA, J.:
This is a petition seeking review of the resolutions, dated March 30, 1994 and
August 26, 1994, of the National Labor Relations Commission (NLRC) which
reversed the decision of the Labor Arbiter and dismissed petitioner Ruben
Serranos complaint for illegal dismissal and denied his motion for
reconsideration. The facts are as follows:

Petitioner was hired by private respondent Isetann Department Store as a


security checker to apprehend shoplifters and prevent pilferage of
merchandise.[1] Initially hired on October 4, 1984 on contractual basis,
petitioner eventually became a regular employee on April 4, 1985. In 1988,
he became head of the Security Checkers Section of private respondent. [2]
Sometime in 1991, as a cost-cutting measure, private respondent decided to
phase out its entire security section and engage the services of an
independent security agency. For this reason, it wrote petitioner the following
memorandum:[3]
October 11, 1991
MR. RUBEN SERRANO
PRESENT
Dear Mr. Serrano,
......In view of the retrenchment program of the company, we
hereby reiterate our verbal notice to you of your termination as
Security Section Head effective October 11, 1991.
......Please secure your clearance from this office.
Very truly yours,
[Sgd.] TERESITA A. VILLANUEVA
Human Resources Division Manager
The loss of his employment prompted petitioner to file a complaint on
December 3, 1991 for illegal dismissal, illegal layoff, unfair labor practice,
underpayment of wages, and nonpayment of salary and overtime pay. [4]
The parties were required to submit their position papers, on the basis of
which the Labor Arbiter defined the issues as follows:[5]
Whether or not there is a valid ground for the dismissal of the
complainant.
Whether or not complainant is entitled to his monetary claims for
underpayment of wages, nonpayment of salaries, 13th month
pay for 1991 and overtime pay.

Whether or not Respondent is guilty of unfair labor practice.


Thereafter, the case was heard. On April 30, 1993, the Labor Arbiter
rendered a decision finding petitioner to have been illegally dismissed. He
ruled that private respondent failed to establish that it had retrenched its
security section to prevent or minimize losses to its business; that private
respondent failed to accord due process to petitioner; that private
respondent failed to use reasonable standards in selecting employees whose
employment would be terminated; that private respondent had not shown
that petitioner and other employees in the security section were so
inefficient so as to justify their replacement by a security agency, or that
"cost-saving devices [such as] secret video cameras (to monitor and prevent
shoplifting) and secret code tags on the merchandise" could not have been
employed; instead, the day after petitioners dismissal, private respondent
employed a safety and security supervisor with duties and functions similar
to those of petitioner.
Accordingly, the Labor Arbiter ordered:[6]
WHEREFORE, above premises considered, judgment is hereby
decreed:
(a)......Finding the dismissal of the complainant to be
illegal and concomitantly, Respondent is ordered to
pay complainant full backwages without qualification
or deduction in the amount of P74,740.00 from the
time of his dismissal until reinstatement (computed
till promulgation only) based on his monthly salary
of P4,040.00/month at the time of his termination but
limited to (3) three years;
(b)......Ordering the Respondent to immediately
reinstate the complainant to his former position as
security section head or to a reasonably equivalent
supervisorial position in charges of security without
loss of seniority rights, privileges and benefits. This
order is immediately executory even pending appeal;
(c)......Ordering the Respondent to pay complainant
unpaid wages in the amount of P2,020.73 and
proportionate 13th month pay in the amount
of P3,198.30;

(d)......Ordering the Respondent to pay complainant


the amount of P7,995.91, representing 10%
attorneys fees based on the total judgment award
of P79,959.12.
All other claims of the complainant whether
monetary or otherwise is hereby dismissed for lack of
merit.
SO ORDERED.
Private respondent appealed to the NLRC which, in its resolution of March 30,
1994, reversed the decision of the Labor Arbiter and ordered petitioner to be
given separation pay equivalent to one month pay for every year of service,
unpaid salary, and proportionate 13th month pay. Petitioner filed a motion for
reconsideration, but his motion was denied.
The NLRC held that the phase-out of private respondents security section
and the hiring of an independent security agency constituted an exercise by
private respondent of "[a] legitimate business decision whose wisdom we do
not intend to inquire into and for which we cannot substitute our judgment";
that the distinction made by the Labor Arbiter between "retrenchment" and
the employment of "cost-saving devices" under Art. 283 of the Labor Code
was insignificant because the company official who wrote the dismissal letter
apparently used the term "retrenchment" in its "plain and ordinary sense: to
layoff or remove from ones job, regardless of the reason therefor"; that the
rule of "reasonable criteria" in the selection of the employees to be
retrenched did not apply because all positions in the security section had
been abolished; and that the appointment of a safety and security supervisor
referred to by petitioner to prove bad faith on private respondents part was
of no moment because the position had long been in existence and was
separate from petitioners position as head of the Security Checkers Section.
Hence this petition. Petitioner raises the following issue:
IS THE HIRING OF AN INDEPENDENT SECURITY AGENCY BY THE
PRIVATE RESPONDENT TO REPLACE ITS CURRENT SECURITY
SECTION A VALID GROUND FOR THE DISMISSAL OF THE
EMPLOYEES CLASSED UNDER THE LATTER?[7]
Petitioner contends that abolition of private respondents Security Checkers
Section and the employment of an independent security agency do not fall

under any of the authorized causes for dismissal under Art. 283 of the Labor
Code.
Petitioner Laid Off for Cause
Petitioners contention has no merit. Art. 283 provides:
Closure of establishment and reduction of personnel. - The
employer may also terminate the employment of any employee
due to the installation of labor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of
operations of the establishment or undertaking unless the
closing is for the purpose of circumventing the provisions of this
Title, by serving a written notice on the workers and the
Department of Labor and Employment at least one (1) month
before the intended date thereof. In case of termination due to
the installation of labor-saving devices or redundancy, the worker
affected thereby shall be entitled to a separation pay equivalent
to at least one (1) month pay or to at least one (1) month pay for
every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closure or
cessation of operations of establishment or undertaking not due
to serious business losses or financial reverses, the separation
pay shall be equivalent to at least one (1) month pay or at least
one-half (1/2) month pay for every year of service, whichever is
higher. A fraction of at least six (6) months shall be considered as
one (1) whole year.
In De Ocampo v. National Labor Relations Commission,[8] this Court upheld
the termination of employment of three mechanics in a transportation
company and their replacement by a company rendering maintenance and
repair services. It held:
In contracting the services of Gemac Machineries, as part of the
companys cost-saving program, the services rendered by the
mechanics became redundant and superfluous, and therefore
properly terminable. The company merely exercised its business
judgment or management prerogative. And in the absence of any
proof that the management abused its discretion or acted in a
malicious or arbitrary manner, the court will not interfere with
the exercise of such prerogative.[9]

In Asian Alcohol Corporation v. National Labor Relations Commission,[10] the


Court likewise upheld the termination of employment of water pump tenders
and their replacement by independent contractors. It ruled that an
employers good faith in implementing a redundancy program is not
necessarily put in doubt by the availment of the services of an independent
contractor to replace the services of the terminated employees to promote
economy and efficiency.
Indeed, as we pointed out in another case, the "[management of a company]
cannot be denied the faculty of promoting efficiency and attaining economy
by a study of what units are essential for its operation. To it belongs the
ultimate determination of whether services should be performed by its
personnel or contracted to outside agencies . . . [While there] should be
mutual consultation, eventually deference is to be paid to what management
decides."[11] Consequently, absent proof that management acted in a
malicious or arbitrary manner, the Court will not interfere with the exercise of
judgment by an employer.[12]
In the case at bar, we have only the bare assertion of petitioner that, in
abolishing the security section, private respondents real purpose was to
avoid payment to the security checkers of the wage increases provided in
the collective bargaining agreement approved in 1990.[13] Such an assertion
is not a sufficient basis for concluding that the termination of petitioners
employment was not a bona fide decision of management to obtain
reasonable return from its investment, which is a right guaranteed to
employers under the Constitution.[14] Indeed, that the phase-out of the
security section constituted a "legitimate business decision" is a factual
finding of an administrative agency which must be accorded respect and
even finality by this Court since nothing can be found in the record which
fairly detracts from such finding.[15]
Accordingly, we hold that the termination of petitioners services was for an
authorized cause, i.e., redundancy. Hence, pursuant to Art. 283 of the Labor
Code, petitioner should be given separation pay at the rate of one month pay
for every year of service.
Sanctions for Violations of the Notice Requirement
Art. 283 also provides that to terminate the employment of an employee for
any of the authorized causes the employer must serve "a written notice on
the workers and the Department of Labor and Employment at least one (1)
month before the intended date thereof." In the case at bar, petitioner was
given a notice of termination on October 11, 1991. On the same day, his

services were terminated. He was thus denied his right to be given written
notice before the termination of his employment, and the question is the
appropriate sanction for the violation of petitioners right.
To be sure, this is not the first time this question has arisen. In Sebuguero v.
NLRC,[16] workers in a garment factory were temporarily laid off due to the
cancellation of orders and a garment embargo. The Labor Arbiter found that
the workers had been illegally dismissed and ordered the company to pay
separation pay and backwages. The NLRC, on the other hand, found that this
was a case of retrenchment due to business losses and ordered the payment
of separation pay without backwages. This Court sustained the NLRCs
finding. However, as the company did not comply with the 30-day written
notice in Art. 283 of the Labor Code, the Court ordered the employer to pay
the workers P2,000.00 each as indemnity.
The decision followed the ruling in several cases involving dismissals which,
although based on any of the just causes under Art. 282,[17] were effected
without notice and hearing to the employee as required by the implementing
rules.[18] As this Court said: "It is now settled that where the dismissal of one
employee is in fact for a just and valid cause and is so proven to be but he is
not accorded his right to due process, i.e., he was not furnished the twin
requirements of notice and opportunity to be heard, the dismissal shall be
upheld but the employer must be sanctioned for non-compliance with the
requirements of, or for failure to observe, due process."[19]
The rule reversed a long standing policy theretofore followed that even
though the dismissal is based on a just cause or the termination of
employment is for an authorized cause, the dismissal or termination is illegal
if effected without notice to the employee. The shift in doctrine took place in
1989 in Wenphil Corp. v. NLRC.[20] In announcing the change, this Court said:
[21]

The Court holds that the policy of ordering the reinstatement to


the service of an employee without loss of seniority and the
payment of his wages during the period of his separation until his
actual reinstatement but not exceeding three (3) years without
qualification or deduction, when it appears he was not afforded
due process, although his dismissal was found to be for just and
authorized cause in an appropriate proceeding in the Ministry of
Labor and Employment, should be re-examined. It will be highly
prejudicial to the interests of the employer to impose on him the
services of an employee who has been shown to be guilty of the
charges that warranted his dismissal from employment. Indeed,

it will demoralize the rank and file if the undeserving, if not


undesirable, remains in the service.
....
However, the petitioner must nevertheless be held to account for
failure to extend to private respondent his right to an
investigation before causing his dismissal. The rule is explicit as
above discussed. The dismissal of an employee must be for just
or authorized cause and after due process. Petitioner committed
an infraction of the second requirement. Thus, it must be
imposed a sanction for its failure to give a formal notice and
conduct an investigation as required by law before dismissing
petitioner from employment. Considering the circumstances of
this case petitioner must indemnify the private respondent the
amount of P1,000.00. The measure of this award depends on the
facts of each case and the gravity of the omission committed by
the employer.
The fines imposed for violations of the notice requirement have varied
from P1,000.00[22] to P2,000.00[23] to P5,000.00[24] to P10,000.00.[25]
Need for Reexamining the Wenphil Doctrine
Today, we once again consider the question of appropriate sanctions for
violations of the notice requirement in light of our experience during the last
decade or so with the Wenphil doctrine. The number of cases involving
dismissals without the requisite notice to the employee, although effected for
just or authorized causes, suggests that the imposition of fine for violation of
the notice requirement has not been effective in deterring violations of the
notice requirement. Justice Panganiban finds the monetary sanctions "too
insignificant, too niggardly, and sometimes even too late." On the other
hand, Justice Puno says there has in effect been fostered a policy of "dismiss
now, pay later" which moneyed employers find more convenient to comply
with than the requirement to serve a 30-day written notice (in the case of
termination of employment for an authorized cause under Arts. 283-284) or
to give notice and hearing (in the case of dismissals for just causes under
Art. 282).
For this reason, they regard any dismissal or layoff without the requisite
notice to be null and void even though there are just or authorized causes for
such dismissal or layoff. Consequently, in their view, the employee
concerned should be reinstated and paid backwages.

Validity of Petitioners Layoff Not Affected by Lack of Notice


We agree with our esteemed colleagues, Justices Puno and Panganiban, that
we should rethink the sanction of fine for an employers disregard of the
notice requirement. We do not agree, however, that disregard of this
requirement by an employer renders the dismissal or termination of
employment null and void. Such a stance is actually a reversion to the
discredited pre-Wenphil rule of ordering an employee to be reinstated and
paid backwages when it is shown that he has not been given notice and
hearing although his dismissal or layoff is later found to be for a just or
authorized cause. Such rule was abandoned in Wenphil because it is really
unjust to require an employer to keep in his service one who is guilty, for
example, of an attempt on the life of the employer or the latters family, or
when the employer is precisely retrenching in order to prevent losses.
The need is for a rule which, while recognizing the employees right to notice
before he is dismissed or laid off, at the same time acknowledges the right of
the employer to dismiss for any of the just causes enumerated in Art. 282 or
to terminate employment for any of the authorized causes mentioned in Arts.
283-284. If the Wenphil rule imposing a fine on an employer who is found to
have dismissed an employee for cause without prior notice is deemed
ineffective in deterring employer violations of the notice requirement, the
remedy is not to declare the dismissal void if there are just or valid grounds
for such dismissal or if the termination is for an authorized cause. That would
be to uphold the right of the employee but deny the right of the employer to
dismiss for cause. Rather, the remedy is to order the payment to the
employee of full backwages from the time of his dismissal until the court
finds that the dismissal was for a just cause. But, otherwise, his dismissal
must be upheld and he should not be reinstated. This is because his
dismissal is ineffectual.
For the same reason, if an employee is laid off for any of the causes in Arts.
283-284, i.e., installation of a labor-saving device, but the employer did not
give him and the DOLE a 30-day written notice of termination in advance,
then the termination of his employment should be considered ineffectual and
he should be paid backwages. However, the termination of his employment
should not be considered void but he should simply be paid separation pay
as provided in Art. 283 in addition to backwages.
Justice Puno argues that an employers failure to comply with the notice
requirement constitutes a denial of the employees right to due process.
Prescinding from this premise, he quotes the statement of Chief Justice
Concepcion in Vda. de Cuaycong v. Vda. de Sengbengco[26] that "acts of

Congress, as well as of the Executive, can deny due process only under the
pain of nullity, and judicial proceedings suffering from the same flaw are
subject to the same sanction, any statutory provision to the contrary
notwithstanding." Justice Puno concludes that the dismissal of an employee
without notice and hearing, even if for a just cause, as provided in Art. 282,
or for an authorized cause, as provided in Arts. 283-284, is a nullity. Hence,
even if just or authorized causes exist, the employee should be reinstated
with full back pay. On the other hand, Justice Panganiban quotes from the
statement in People v. Bocar[27] that "[w]here the denial of the fundamental
right of due process is apparent, a decision rendered in disregard of that
right is void for lack of jurisdiction."
Violation of Notice Requirement Not a Denial of Due Process
The cases cited by both Justices Puno and Panganiban refer, however, to the
denial of due process by the State, which is not the case here. There are
three reasons why, on the other hand, violation by the employer of the
notice requirement cannot be considered a denial of due process resulting in
the nullity of the employees dismissal or layoff.
The first is that the Due Process Clause of the Constitution is a limitation on
governmental powers. It does not apply to the exercise of private power,
such as the termination of employment under the Labor Code. This is plain
from the text of Art. III, 1 of the Constitution, viz.: "No person shall be
deprived of life, liberty, or property without due process of law. . . ." The
reason is simple: Only the State has authority to take the life, liberty, or
property of the individual. The purpose of the Due Process Clause is to
ensure that the exercise of this power is consistent with what are considered
civilized methods.
The second reason is that notice and hearing are required under the Due
Process Clause before the power of organized society are brought to bear
upon the individual. This is obviously not the case of termination of
employment under Art. 283. Here the employee is not faced with an aspect
of the adversary system. The purpose for requiring a 30-day written notice
before an employee is laid off is not to afford him an opportunity to be heard
on any charge against him, for there is none. The purpose rather is to give
him time to prepare for the eventual loss of his job and the DOLE an
opportunity to determine whether economic causes do exist justifying the
termination of his employment.
Even in cases of dismissal under Art. 282, the purpose for the requirement of
notice and hearing is not to comply with Due Process Clause of the

Constitution. The time for notice and hearing is at the trial stage. Then that is
the time we speak of notice and hearing as the essence of procedural due
process. Thus, compliance by the employer with the notice requirement
before he dismisses an employee does not foreclose the right of the latter to
question the legality of his dismissal. As Art. 277(b) provides, "Any decision
taken by the employer shall be without prejudice to the right of the worker to
contest the validity or legality of his dismissal by filing a complaint with the
regional branch of the National Labor Relations Commission."
Indeed, to contend that the notice requirement in the Labor Code is an
aspect of due process is to overlook the fact that Art. 283 had its origin in
Art. 302 of the Spanish Code of Commerce of 1882 which gave either party
to the employer-employee relationship the right to terminate their
relationship by giving notice to the other one month in advance. In lieu of
notice, an employee could be laid off by paying him a mesada equivalent to
his salary for one month.[28] This provision was repealed by Art. 2270 of the
Civil Code, which took effect on August 30, 1950. But on June 12, 1954, R.A.
No. 1052, otherwise known as the Termination Pay Law, was enacted reviving
the mesada. On June 21, 1957, the law was amended by R.A. No. 1787
providing for the giving of advance notice or the payment of compensation
at the rate of one-half month for every year of service.[29]
The Termination Pay Law was held not to be a substantive law but a
regulatory measure, the purpose of which was to give the employer the
opportunity to find a replacement or substitute, and the employee the equal
opportunity to look for another job or source of employment. Where the
termination of employment was for a just cause, no notice was required to be
given to the employee.[30] It was only on September 4, 1981 that notice was
required to be given even where the dismissal or termination of an employee
was for cause. This was made in the rules issued by the then Minister of
Labor and Employment to implement B.P. Blg. 130 which amended the Labor
Code. And it was still much later when the notice requirement was embodied
in the law with the amendment of Art. 277(b) by R.A. No. 6715 on March 2,
1989. It cannot be that the former regime denied due process to the
employee. Otherwise, there should now likewise be a rule that, in case an
employee leaves his job without cause and without prior notice to his
employer, his act should be void instead of simply making him liable for
damages.
The third reason why the notice requirement under Art. 283 can not be
considered a requirement of the Due Process Clause is that the employer
cannot really be expected to be entirely an impartial judge of his own cause.
This is also the case in termination of employment for a just cause under Art.

282 (i.e., serious misconduct or willful disobedience by the employee of the


lawful orders of the employer, gross and habitual neglect of duties, fraud or
willful breach of trust of the employer, commission of crime against the
employer or the latters immediate family or duly authorized representatives,
or other analogous cases).
Justice Puno disputes this. He says that "statistics in the DOLE will prove that
many cases have been won by employees before the grievance committees
manned by impartial judges of the company." The grievance machinery is,
however, different because it is established by agreement of the employer
and the employees and composed of representatives from both sides. That is
why, in Batangas Laguna Tayabas Bus Co. v. Court of Appeals,[31] which
Justice Puno cites, it was held that "Since the right of [an employee] to his
labor is in itself a property and that the labor agreement between him and
[his employer] is the law between the parties, his summary and arbitrary
dismissal amounted to deprivation of his property without due process of
law." But here we are dealing with dismissals and layoffs by employers alone,
without the intervention of any grievance machinery. Accordingly
in Montemayor v. Araneta University Foundation,[32] although a professor was
dismissed without a hearing by his university, his dismissal for having made
homosexual advances on a student was sustained, it appearing that in the
NLRC, the employee was fully heard in his defense.
Lack of Notice Only Makes Termination Ineffectual
Not all notice requirements are requirements of due process. Some are
simply part of a procedure to be followed before a right granted to a party
can be exercised. Others are simply an application of the Justinian precept,
embodied in the Civil Code,[33] to act with justice, give everyone his due, and
observe honesty and good faith toward ones fellowmen. Such is the notice
requirement in Arts. 282-283. The consequence of the failure either of the
employer or the employee to live up to this precept is to make him liable in
damages, not to render his act (dismissal or resignation, as the case may be)
void. The measure of damages is the amount of wages the employee should
have received were it not for the termination of his employment without prior
notice. If warranted, nominal and moral damages may also be awarded.
We hold, therefore, that, with respect to Art. 283 of the Labor Code, the
employers failure to comply with the notice requirement does not constitute
a denial of due process but a mere failure to observe a procedure for the
termination of employment which makes the termination of employment
merely ineffectual. It is similar to the failure to observe the provisions of Art.
1592, in relation to Art. 1191, of the Civil Code[34] in rescinding a contract for

the sale of immovable property. Under these provisions, while the power of a
party to rescind a contract is implied in reciprocal obligations, nonetheless, in
cases involving the sale of immovable property, the vendor cannot exercise
this power even though the vendee defaults in the payment of the price,
except by bringing an action in court or giving notice of rescission by means
of a notarial demand.[35] Consequently, a notice of rescission given in the
letter of an attorney has no legal effect, and the vendee can make payment
even after the due date since no valid notice of rescission has been given.[36]
Indeed, under the Labor Code, only the absence of a just cause for the
termination of employment can make the dismissal of an employee illegal.
This is clear from Art. 279 which provides:
Security of Tenure. - In cases of regular employment, the
employer shall not terminate the services of an employee except
for a just cause or when authorized by this Title. An employee
who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges
and to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of
his actual reinstatement.[37]
Thus, only if the termination of employment is not for any of the causes
provided by law is it illegal and, therefore, the employee should be reinstated
and paid backwages. To contend, as Justices Puno and Panganiban do, that
even if the termination is for a just or authorized cause the employee
concerned should be reinstated and paid backwages would be to amend Art.
279 by adding another ground for considering a dismissal illegal. What is
more, it would ignore the fact that under Art. 285, if it is the employee who
fails to give a written notice to the employer that he is leaving the service of
the latter, at least one month in advance, his failure to comply with the legal
requirement does not result in making his resignation void but only in
making him liable for damages.[38] This disparity in legal treatment, which
would result from the adoption of the theory of the minority cannot simply be
explained by invoking President Ramon Magsaysays motto that "he who has
less in life should have more in law." That would be a misapplication of this
noble phrase originally from Professor Thomas Reed Powell of the Harvard
Law School.
Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC,[39] in support of his
view that an illegal dismissal results not only from want of legal cause but
also from the failure to observe "due process." The Pepsi-Cola case actually

involved a dismissal for an alleged loss of trust and confidence which, as


found by the Court, was not proven. The dismissal was, therefore, illegal, not
because there was a denial of due process, but because the dismissal was
without cause. The statement that the failure of management to comply with
the notice requirement "taints the dismissal with illegality" was merely a
dictum thrown in as additional grounds for holding the dismissal to be illegal.
Given the nature of the violation, therefore, the appropriate sanction for the
failure to give notice is the payment of backwages for the period when the
employee is considered not to have been effectively dismissed or his
employment terminated. The sanction is not the payment alone of nominal
damages as Justice Vitug contends.
Unjust Results of Considering Dismissals/Layoffs Without Prior
Notice As Illegal
The refusal to look beyond the validity of the initial action taken by the
employer to terminate employment either for an authorized or just cause can
result in an injustice to the employer. For not giving notice and hearing
before dismissing an employee, who is otherwise guilty of, say, theft, or even
of an attempt against the life of the employer, an employer will be forced to
keep in his employ such guilty employee. This is unjust.
It is true the Constitution regards labor as "a primary social economic
force."[40] But so does it declare that it "recognizes the indispensable role of
the private sector, encourages private enterprise, and provides incentives to
needed investment."[41] The Constitution bids the State to "afford full
protection to labor."[42] But it is equally true that "the law, in protecting the
rights of the laborer, authorizes neither oppression nor self-destruction of the
employer."[43] And it is oppression to compel the employer to continue in
employment one who is guilty or to force the employer to remain in
operation when it is not economically in his interest to do so.
In sum, we hold that if in proceedings for reinstatement under Art. 283, it is
shown that the termination of employment was due to an authorized cause,
then the employee concerned should not be ordered reinstated even though
there is failure to comply with the 30-day notice requirement. Instead, he
must be granted separation pay in accordance with Art. 283, to wit:
In case of termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby shall be
entitled to a separation pay equivalent to at least his one (1)
month pay or to at least one month for every year of service,

whichever is higher. In case of retrenchment to prevent losses


and in cases of closures or cessation of operations of
establishment or undertaking not due to serious business losses
or financial reverses, the separation pay shall be equivalent to
one (1) month pay or at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least six
months shall be considered one (1) whole year.
If the employees separation is without cause, instead of being given
separation pay, he should be reinstated. In either case, whether he is
reinstated or only granted separation pay, he should be paid full backwages
if he has been laid off without written notice at least 30 days in advance.
On the other hand, with respect to dismissals for cause under Art. 282, if it is
shown that the employee was dismissed for any of the just causes
mentioned in said Art. 282, then, in accordance with that article, he should
not be reinstated. However, he must be paid backwages from the time his
employment was terminated until it is determined that the termination of
employment is for a just cause because the failure to hear him before he is
dismissed renders the termination of his employment without legal effect.
WHEREFORE, the petition is GRANTED and the resolution of the National
Labor Relations Commission is MODIFIED by ordering private respondent
Isetann Department Store, Inc. to pay petitioner separation pay equivalent to
one (1) month pay for every year of service, his unpaid salary, and his
proportionate 13th month pay and, in addition, full backwages from the time
his employment was terminated on October 11, 1991 up to the time the
decision herein becomes final. For this purpose, this case is REMANDED to
the Labor Arbiter for computation of the separation pay, backwages, and
other monetary awards to petitioner.
SO ORDERED.
G.R. Nos. L-39516-17 January 28, 1975
ROSARIO CASTILLO and SONIA VILLASANTA, petitioners,
vs.
THE HONORABLE JUDGE CELESTINO JUAN, respondent.
Castillo and Morales Law Offices for petitioners.
Respondent Judge in his own behalf.

FERNANDO, J.:
In this certiorari proceedings, petitioners, two young maidens who are the
offended parties in two rape cases, assail the actuation of respondent Judge
and seek his disqualification on the ground of bias and prejudice. What was
done by him, according to their strongly-worded petition, was in disregard of
the highly-prized ideal in adjudication, likewise a due process requirement,
that a litigant "is entitled to nothing less than the cold neutrality of an
impartial judge." 1 Briefly, on two separate occasions on August 15 and 27,
1974, in the secrecy of his chambers he informed petitioners of the
weakness of their cases, the likelihood of a verdict of acquittal in favor of the
accused, and impressed upon them that it would be to their advantage to
settle, as the most he could do on their behalf was to have such accused
indemnify them. This move, according to him, would assure their being
spared from the embarrassment occasioned by suits of this character, clearly
prejudicial to their future. These conversations took place even before the
prosecution had finished presenting its evidence, one of the petitioners not
having testified as yet. Respondent Judge could not very well deny that he
did invite them to confer with him, but he would impress on this Court that
their version should not be let credence and that he was prompted to act
thus from the best of motives, "as an act of charity" and as a "clear attempt
to humanize justice." 2 With the problem thus laid bare and the essentials
exposed to view, it is obvious that the petitions are impressed with merit.
Respect for a number of decisions, most of them recent in character, yields
no other conclusion.
Petitioners are entitled to the remedy sought. Respondent Judge must be
disqualified from further hearing the cases.
1. In every litigation, perhaps much more so in criminal cases, the manner
and attitude of a trial judge are crucial to everyone concerned, the offended
party, no less than the accused. It is not for him to indulge or even to give
the appearance of catering to the at times human failing of yielding to first
impressions. He is to refrain from reaching hasty conclusions or prejudging
matters. It would be deplorable if he lays himself open to the suspicion of
reacting to feelings rather than to facts, of being imprisoned in the net of his
own sympathies and predilections. It must be obvious to the parties as well
as the public that he follows the traditional mode of adjudication requiring
that he hear both sides with patience and understanding to keep the risk of
reaching an unjust decision at a minimum. It is not necessary that he should
possess marked proficiency in law, but it is essential that he is to hold the

balance true. What is equally important is that he should avoid any conduct
that casts doubt on his impartially. What has been said is not merely a
matter of judicial ethics. It is impressed with constitutional significance. As
set forth in Mateo Jr. v. Villaluz: 3 "It is now beyond dispute that due process
cannot be satisfied in the absence of that degree of objectivity on the part of
a judge sufficient to reassure litigants of his being fair and being just.
Thereby there is the legitimate expectation that the decision arrived at would
be the application of the law to the facts as found by a judge who does not
play favorites. For him, the parties stand on equal footing. In the language of
Justice Dizon: "It has been said, in fact, that due process of law requires a
hearing before an impartial and disinterested tribunal, and that every litigant
is entitled to nothing less than the cold neutrality of an impartial
Judge."" 4 The above excerpt is from the leading case ofGutierrez v.
Santos. 5 The Villaluz decision is only one of a number of cases where
Gutierrez was cited with approval. 6 InGeotina v. Gonzales, 7 a judge,
according to Justice Castro, the ponente, should strive to be at all times
"wholly free, disinterested, impartial and independent. Elementary due
process requires a hearing before an impartial and disinterested tribunal. A
judge has both the duty of rendering a just decision and the duty of doing it
in a manner completely free from suspicion as to its fairness and as to his
integrity." 8
It is in line with the above due process requirement that the Rules of Court
provide for disqualification of judge 9outside of the instances referring to
their pecuniary interest, relationship, previous connection, or his having
presided in an inferior court when his ruling or decision is the subject of
review. 10 The 1964 amendment contains this additional paragraph: "A judge
may, in the exercise of his sound discretion, disqualify himself from sitting in
a case, for just or valid reasons other than those mentioned above." 11An
excerpt from the Villaluz opinion is again relevant: "Thereby, it is made clear
to the occupants of the bench that outside of pecuniary interest, relationship
or previous participation in the matter that calls for adjudication, there may
be other causes that could conceivably erode the trait of objectivity, thus
calling for inhibition. That is to betray a sense of realism, for the factors that
lead to preferences or predilections are many and varied. It is well, therefore,
that if any such should make its appearance and prove difficult to resist, the
better course for a judge is to disqualify himself. That way, he avoids being
misunderstood. His reputation for probity and objectivity is preserved. What
is even more important, the ideal of an impartial administration of justice is
lived up to. Thus is due process vindicated." 12 What is more, in the event
that a judge may be unable to discern for himself his inability to meet the
test of the cold neutrality required of him, this Court has seen to it that he

should disqualify himself. 13 From what has been set forth, this certainly is
another one of such cases.
2. This is not to discount in its entirety the submission of respondent Judge,
who argued on his own behalf, that his final decision would be dependent on
the evidence that could be presented by petitioners. What cannot be denied,
however, is that after such conferences, they could no longer be expected to
have faith in his impartiality. Even before they had been fully heard, they
were told that their cases were weak. They could very well conclude then
that there was a prejudgment. Under the circumstances, the fact that he
acted as he did because any monetary settlement would benefit petitioners,
considering their straitened financial circumstances, was of no moment.
Even if it be admitted that, according to his best lights, respondent Judge
acted from a sense of sympathy or "charity", his conduct cannot be said to
be consonant with the exacting standard of the cold neutrality of an impartial
judge. The administration of justice would thus be subject to a reproach if
there be a rejection of the plea for disqualification.
3. It is to be made clear, moreover, that nothing said in this opinion has
reference to the merits of the two prosecutions for rape. That is not a matter
before us. The controversy passed upon is whether respondent Judge should
continue to preside at such trial. The decision reached goes no further than
that he should not. That accomplished, the hearings should continue, with
the outcome dependent on an appraisal, according to law, of the evidence
submitted by the prosecution and the defense. .
WHEREFORE, this Court grants the petitions for certiorari, and respondent
Judge is ordered to desist from further conducting the trial of the two
prosecutions for rape, Criminal Cases Nos. 733 and 734 of the Court of First
Instance of Quezon, Ninth Judicial District, respectively entitled People of the
Philippines v. Ernesto de Villa and People of the Philippines v. Ernesto de
Villa. No costs.
G.R. No. 127262. July 24, 1997]
HUBERT WEBB, ANTONIO LEJANO, HOSPICIO FERNANDEZ, MIGUEL
RODRIGUEZ,
PETER
ESTRADA
and
MICHAEL
GATCHALIAN petitioner, vs. PEOPLE OF THE PHILIPPINES, THE
HONORABLE AMELITA G. TOLENTINO, Presiding Judge, Regional
Trial
Court
of
Paraaque,
Branch
274,
and
LAURO
VIZCONDE, respondents.
DECISION

PUNO, J.:
Petitioners Hubert Webb, Antonio Lejano, Hospicio Fernandez, Miguel
Rodriguez, Peter Estrada and Michael Gatchalian [1] assail the decision of the
Court of Appeals dated June 21, 1996 in C.A. G.R. SP No. 39839 [2]and C.A.
G.R. SP No. 39840,[3] as well as its resolution dated November 15, 1996
insofar as it denied the petition for the inhibition of respondent Judge Amelita
G. Tolentino in Criminal Case No. 95-404 [4] pending before Branch 274 of the
Regional Trial Court of Paranaque.[5]
The antecedent facts show that on August 8, 1995, petitioners were
charged with the crime of rape with homicide for allegedly raping Carmela
Vizconde and on the occasion thereof, killing Carmela herself and her
mother, Estrellita, and her sister, Jennifer. The crime was committed in the
evening of June 29 up to the early morning of June 30, 1991 at the Vizconde
residence in BF Homes, Paraaque.[6]
The case, docketed as Criminal Case No. 95-404, was raffled to Branch
274 of the Regional Trial Court of Paraaque presided by respondent judge.
Prior to their arraignment, petitioner Webb and his co-accused, Gerardo
Biong, had sought the disqualification of respondent judge in Criminal Case
No. 95-404. In his motion of August 21, 1995, petitioner Webb relied on the
ground that respondent judge allegedly told the media that "failure of the
accused to surrender following the issuance of the warrant of arrest is an
indication of guilt." Respondent judge denied the motion. Two days later, on
August 23, 1995, petitioner Webb filed a second motion to disqualify
respondent judge as the latter allegedly told the media that the accused
"should not expect the comforts of home," pending the resolution of his
motion to be committed to the custody of the Philippine National Police at
Camp Ricardo Papa, Bicutan, Paraaque. Respondent judge again denied the
motion to inhibit. On September 4, 1995, Gerardo Biong filed another motion
to disqualify respondent judge on the ground of bias and partiality. This was
likewise denied by respondent judge.
The petitioners were arraigned on September 4, 1995. They then filed
separate petitions for bail.
On September 21, 1995, petitioner Webb filed an Urgent Motion for
Hospitalization. He alleged that he was sick of dermatitis or asthma of the
skin which aggravated due to his continuous commitment at the Paraaque
Municipal Jail. The motion was denied by respondent judge on October 16,
1995.

On October 9, 1995, the hearing on petitioners' petitions for bail


commenced. The prosecution presented its "star witness," Jessica Alfaro, who
identified petitioners as the perpetrators of the crime. During the crossexamination, the defense counsel tried to impeach Alfaro's credibility by
asking her questions regarding the contents of an affidavit she executed at
the National Bureau of Investigation (NBI) on April 28, 1995. The defense
tried to show that some of her statements in said affidavit are inconsistent
with her statements in a subsequent affidavit executed on May 21, 1995 and
with her testimony in court. The prosecution objected and moved that all
questions relating to the contents of Alfaro's April 28 affidavit be expunged
from the records for being inadmissible in evidence under Article III Section
12(1) and (3) of the 1987 Constitution. [7] Respondent judge sustained the
objection and on October 30, 1995, she issued an order holding that Alfaro
cannot be cross examined on the contents of her April 28 affidavit because
said affidavit was inadmissible in evidence as it was not executed in the
presence of a counsel.[8]
The defense also tried to prove Alfaro's motive in testifying against
petitioners. She was questioned about her brother, Patrick Alfaro, and her
uncle, Roberto Alfaro. Jessica Alfaro allegedly admitted that her brother,
Patrick, was a drug addict and was arrested once by the NBI for illegal
possession of drugs and that he is presently in the United States. When
defense counsel inquired about the circumstances of Patrick's departure for
the United States, the prosecution objected to the questions on the ground of
irrelevancy. Respondent judge sustained the objection.
The defense also cross-examined Alfaro on her educational attainment to
show that she lied in her direct testimony. The defense presented her
transcript of records to prove that she only enrolled for a year and earned
nine (9) academic units, contrary to her claim that she finished second year
college. The prosecution again objected on the ground that Alfaro's
educational attainment was irrelevant. Respondent judge sustained the
objection.
On November 9, 1995, petitioners filed a motion to disqualify or inhibit
respondent judge due to bias and prejudice. Respondent judge denied the
motion for lack of merit on November 28, 1995.[9]
On November 15, 1995, petitioners filed two separate petitions with this
Court. Petitioners Webb, Lejano, Fernandez, together with their co-accused,
Gerardo Biong, filed a petition for certiorari seeking to set aside (1) the order
of respondent judge dated October 16, 1995 denying petitioner Webb's
motion for hospitalization and (2) the order of respondent judge dated

October 30, 1995 disallowing the defense to cross-examine Alfaro on the


contents of her April 28 affidavit.[10] Petitioners Gatchalian and Estrada filed a
petition for certiorari, prohibition and mandamus assailing respondent
judge's order prohibiting the cross-examination of Alfaro on the contents of
her April 28 affidavit.[11]
On December 8, 1995, petitioners filed with this Court a supplemental
petition to set aside the November 28, 1995 order of respondent judge
denying their motion for inhibition.
In a resolution dated January 22, 1996, we referred both petitions and the
supplemental petition to the Court of Appeals for proper disposition.
In the meantime, the hearing on petitioners' petitions for bail
continued. The prosecution presented Mila Gaviola, a former maid at the
Webb residence, who testified that she saw petitioner Webb in their house in
the early morning of June 30, 1991. On December 5, 1995, respondent judge,
over the objection of the petitioners, ordered an ocular inspection of the
former Webb residence in BF Homes, Paraaque to verify Gaviola's testimony
about a secret door through which she peeped to see petitioner Webb.
On January 12, 1996, petitioner Webb filed a motion for deposition of
witnesses residing in the United States who shall testify on his presence in
the United States on the date of the commission of the crime. [12] On February
6, 1996, respondent judge denied the motion for the reason that petitioner
Webb failed to allege that the witnesses do not have the means to go to the
place of the trial.[13] Hence, on January 12, 1996, petitioner Webb filed
another supplemental petition to the Court of Appeals challenging the said
order.
Petitioners made their Formal Offer of Evidence upon conclusion of the
hearings on the petitions for bail. On September 25, 1995, the prosecution
filed its Comment/Objection to the Formal Offer of Evidence. On October 1,
1996, respondent judge ruled on petitioner's formal offer of evidence. She
admitted only ten (10) out of the one hundred forty two (142) exhibits
offered by petitioner.[14]
On October 11, 1996, respondent judge denied petitioners' petitions for
bail.[15]
On June 21, 1996, the Court of Appeals rendered its Decision on the
various petitions and supplemental petitions. It reversed respondent judge's
ruling refusing to admit Alfaro's April 28 affidavit but denied all the other

reliefs prayed for by petitioners.[16] It also denied petitioners' motion for


reconsideration in a resolution dated November 15, 1996.[17]
On December 12, 1996, petitioners filed the present petition contending:
I
The Court of Appeals erred in declaring that no sufficient ground
exists for the disqualification of the respondent judge.
A. Respondent judge has consistently and repeatedly shown bias and
hostility against petitioners.
B. The rejection of the 132 of 142 exhibits not only paved the way for
the denial of bail but also sets irreversibly the eventual conviction of
all the accused.
C. The reported trip to the Vizconde residence by the respondent
judge exposes her propensity to consort with the complainant on
the pending issues.
II
The Court of Appeals erred in not honoring that the right to a fair trial
requires that the case be tried by an impartial judge.
On February 5, 1997, petitioners filed a supplemental petition. It alleged,
among others, that during the trial on the merits, respondent judge allowed
prosecution witness Atty. Pedro Rivera to testify on the character of the
accused although the defense had not put his character in issue; that
respondent judge disallowed the defense to impeach the credibility of Atty.
Rivera by the presentation of an earlier statement executed by him because
such statement was immaterial; and that respondent judge struck off from
the record the proffer of oral evidence made by defense counsel Atty.
Vitaliano Aguirre after ruling that the proffer was improper on crossexamination.[18]
The core issue is whether respondent judge should inhibit herself from
hearing Criminal Case No. 95-404 on the ground of bias and prejudice.
We rule in the negative.

The Bill of Rights guarantees that "(n)o person shall be held to answer for
a criminal offense without due process of law." [19] A critical component of due
process is a hearing before an impartial and disinterested tribunal. We have
ingrained the jurisprudence that every litigant is entitled to nothing less than
the cold neutrality of an impartial judge for all the other elements of due
process, like notice and hearing, would be meaningless if the ultimate
decision would come from a partial and biased judge. [20] Hence, the Rules of
Court allows a judge to voluntarily inhibit himself from hearing a case for
"just or valid reasons" other than those referring to his pecuniary interest,
relation, previous connection, or previous rulings or decisions. Section 1 Rule
137 of the Revised Rules of Court states:
SECTION 1. Disqualification of judges. -- No judge or judicial officer
shall sit in any case in which he, or his wife or child, is pecuniarily
interested as heir, legatee, creditor or otherwise, or in which he is
related to either party within the sixth degree of consanguinity or
affinity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor,
administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject
of review, without the written consent of all parties in interest, signed
by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons other than those
mentioned above.
Under the second paragraph, a party has the right to seek the inhibition or
disqualification of a judge who does not appear to be wholly free,
disinterested, impartial and independent in handling the case. This right
must be weighed with the duty of a judge to decide cases without fear of
repression. Hence, to disqualify a judge on the ground of bias and prejudice
the movant must prove the same by clear and convincing evidence. This is a
heavy burden and petitioners failed to discharge their burden of proof.
To prove bias and prejudice on the part of respondent judge, petitioners
harp on the alleged adverse and erroneous rulings of respondent judge on
their various motions. By themselves, however, they do not sufficiently prove
bias and prejudice to disqualify respondent judge. To be disqualifying, the
bias and prejudice must be shown to have stemmed from an extrajudicial
source and result in an opinion on the merits on some basis other than what
the judge learned from his participation in the case. Opinions formed in the
course of judicial proceedings, although erroneous, as long as they are based

on the evidence presented and conduct observed by the judge, do not prove
personal bias or prejudice on the part of the judge. [21] As a general rule,
repeated rulings against a litigant, no matter how erroneous and vigorously
and consistently expressed, are not a basis for disqualification of a judge on
grounds of bias and prejudice.[22] Extrinsic evidence is required to establish
bias, bad faith, malice or corrupt purpose, in addition to the palpable error
which may be inferred from the decision or order itself. Although the decision
may seem so erroneous as to raise doubts concerning a judge's integrity,
absent extrinsic evidence, the decision itself would be insufficient to
establish a case against the judge. [23] The only exception to the rule is when
the error is so gross and patent as to produce an ineluctable inference of bad
faith or malice.
A perusal of the records will reveal that petitioners failed to adduce any
extrinsic evidence to prove that respondent judge was motivated by malice
or bad faith in issuing the assailed rulings. Petitioners simply lean on the
alleged series of adverse rulings of the respondent judge which they
characterized as palpable errors. This is not enough. We note that
respondent judge's rulings resolving the various motions filed by petitioners
were all made after considering the arguments raised by all the parties. It is
true that the respondent judge erred in some of her rulings such as her
rejection of petitioners' one hundred thirty two (132) pieces of evidence. It
appears, however, that respondent judge reversed this erroneous ruling and
already admitted these 132 pieces of evidence after finding that "the defects
in (their) admissibility have been cured through the introduction of additional
evidence during the trial on the merits."[24] This correction diminishes the
strength of petitioners' charge that respondent judge is hopelessly biased
against them. To be sure, the respondent judge did not score a complete
cipher in her rulings against the petitioners. Just last June 11, 1997, the Third
Division of this Court dismissed an administrative complaint against the
respondent judge on the ground that "x x x it is within the respondent
judge's right to conduct an ocular inspection since it is an exercise of her
judicial prerogative x x x."[25] There is still another reason why we should
observe caution in disqualifying respondent judge. The trial of the petitioners
is about to end and to assign a new judge to determine the guilt or
innocence of petitioners will not be for the best interest of justice. The
records of the case at bar run into volumes. These voluminous records
cannot capture in print the complete credibility of witnesses when they
testified in court. As the respondent judge observed the demeanor of
witnesses while in the witness chair, she is in the best position to calibrate
their credibility. The task of evaluating the credibility of witnesses includes
interpreting their body language and their meaningful nuances are not
expressed in the transcripts of their testimonies.

We hasten to stress that a party aggrieved by erroneous interlocutory


rulings in the course of a trial is not without remedy. The range of remedy is
provided in our Rules of Court and we need not make an elongated discourse
on the subject. But certainly, the remedy for erroneous rulings, absent any
extrinsic evidence of malice or bad faith, is not the outright disqualification of
the judge. For there is yet to come a judge with the omniscience to issue
rulings that are always infallible. The courts will close shop if we disqualify
judges who err for we all err.
We again remind respondent judge of our counsel in the first Webb
case[26] "x x x that our ability to dispense impartial justice is an issue in every
trial, and in every criminal prosecution, the judiciary always stands as a
silent accused. More than convicting the guilty and acquitting the innocent,
the business of the judiciary is to assure fulfillment of the promise that
justice shall be done and is done - and that is the only way for the judiciary
to get an acquittal from the bar of public opinion."
IN VIEW WHEREOF, the petition is dismissed for lack of merit. No costs.
SO ORDERED.
A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL IN THE
SANDIGANBAYAN OF THE PLUNDER CASES AGAINST FORMER
PRESIDENT JOSEPH E. ESTRADA
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA
BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO, and
ATTY. RICARDO ROMULO, petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES,oppositors.
RESOLUTION
MENDOZA, J.:
This is a motion for reconsideration of the decision denying petitioners'
request for permission to televise and broadcast live the trial of former
President Estrada before the Sandiganbayan. The motion was filed by the
Secretary of Justice, as one of the petitioners, who argues that there is really
no conflict between the right of the people to public information and the

freedom of the press, on the one hand, and, on the other, the right of the
accused to a fair trial; that if there is a clash between these rights, it must be
resolved in favor of the right of the people and the press because the people,
as the repository of sovereignty, are entitled to information; and that live
media coverage is a safeguard against attempts by any party to use the
courts as instruments for the pursuit of selfish interests.
On the other hand, former President Joseph E. Estrada reiterates his
objection to the live TV and radio coverage of his trial on the ground that its
allowance will violate the sub judice rule and that, based on his experience
with the impeachment trial, live media coverage will only pave the way for
so-called "expert commentary" which can trigger massive demonstrations
aimed at pressuring the Sandiganbayan to render a decision one way or the
other. Mr. Estrada contends that the right of the people to information may
be served through other means less distracting, degrading, and prejudicial
than live TV and radio coverage.1wphi1.nt
The Court has considered the arguments of the parties on this important
issue and, after due deliberation, finds no reason to alter or in any way
modify its decision prohibiting live or real time broadcast by radio or
television of the trial of the former president. By a vote of nine (9) to six (6)
of its members,1 the Court denies the motion for reconsideration of the
Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the vote of
eight (8) Justices,2 has resolved to order the audio-visual recording of the
trial.
What follows is the opinion of the majority.lawphil.net
Considering the significance of the trial before the Sandiganbayan of former
President Estrada and the importance of preserving the records thereof, the
Court believes that there should be an audio-visual recording of the
proceedings. The recordings will not be for live or real time broadcast but for
documentary purposes. Only later will they be available for public showing,
after the Sandiganbayan shall have promulgated its decision in every case to
which the recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives Office for
historical preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV crews
will be regulated, consistent with the dignity and solemnity of the

proceedings. The trial shall be recorded in its entirety, except such portions
thereof as the Sandiganbayan may decide should not be held public pursuant
to Rule 119, 21 of the Revised Rules of Criminal Procedure. No comment
shall be included in the documentary except annotations which may be
necessary to explain certain scenes which are depicted. The audio-visual
recordings shall be made under the supervision and control of the
Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording.1awphil.net First, the
hearings are of historic significance. They are an affirmation of our
commitment to the rule that "the King is under no man, but he is under God
and the law." (Quod Rex non debet esse sub homine, sed sub Deo et Lege.)
Second, the Estrada cases involve matters of vital concern to our people who
have a fundamental right to know how their government is conducted. This
right can be enhanced by audio visual presentation. Third, audio-visual
presentation is essential for the education and civic training of the people.
Above all, there is the need to keep audio-visual records of the hearings for
documentary purposes. The recordings will be useful in preserving the
essence of the proceedings in a way that the cold print cannot quite do
because it cannot capture the sights and sounds of events. They will be
primarily for the use of appellate courts in the event a review of the
proceedings, rulings, or decisions of the Sandiganbayan is sought or
becomes necessary. The accuracy of the transcripts of stenographic notes
taken during the trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for broadcast,
concerns that those taking part in the proceedings will be playing to the
cameras and will thus be distracted from the proper performance of their
roles -- whether as counsel, witnesses, court personnel, or judges -- will be
allayed. The possibility that parallel trials before the bar of justice and the
bar of public opinion may jeopardize, or even prevent, the just determination
of the cases can be minimized. The possibility that judgment will be rendered
by the popular tribunal before the court of justice can render its own will be
avoided.
At the same time, concerns about the regularity and fairness of the trial -which, it may be assumed, is the concern of those opposed to, as much as of
those in favor of, televised trials - will be addressed since the tapes will not
be released for public showing until after the decision of the cases by the
Sandiganbayan. By delaying the release of the tapes, much of the problem
posed by real time TV and radio broadcast will be avoided.

Thus, many important purposes for preserving the record of the trial can be
served by audio-visual recordings without impairing the right of the accused
to a fair trial.
Nor is the right of privacy of the accused a bar to the production of such
documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this Court set aside
a lower court's injunction restraining the filming of "Four Day Revolution," a
documentary film depicting, among other things, the role of then Minister of
National Defense Juan Ponce Enrile in the 1986 EDSA people power. This
Court held: "A limited intrusion into a person's privacy has long been
regarded as permissible where that person is a public figure and the
information sought to be elicited from him or to be published about him
constitute matters of a public character."6
No one can prevent the making of a movie based on the trial. But, at least, if
a documentary record is made of the proceedings, any movie that may later
be produced can be checked for its accuracy against such documentary and
any attempt to distort the truth can thus be averted.
Indeed, a somewhat similar proposal for documentary recording of
celebrated cases or causes clbres was made was made way back in 1971
by Paul Freund of the Harvard Law School. As he explained:
In fairness let me refer to an American experience many of my lay
friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of
resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded -- concluded
incidentally, with a verdict of acquittal.
No one could witness the trial without a feeling of profound respect for
the painstaking way in which the truth was searched for, for the ways
whereby law copes with uncertainties and ambiguities through
presumptions and burden of proof, and the sense of gravity with which
judge and jury carried out their responsibilities.
I agree in general with the exclusion of television from the courtroom,
for the familiar good reasons. And yet the use of television at a trial for
documentary purposes, not for the broadcast of live news, and with the
safeguards of completeness and consent, is an educational experiment
that I would be prepared to welcome. Properly safeguarded and with
suitable commentary, the depiction of an actual trial is an agency of

enlightenment that could have few equals in its impact on the public
understanding.
Understanding of our legal process, so rarely provided by our
educational system, is now a desperate need.7
Professor Freund's observation is as valid today as when it was made thirty
years ago. It is perceptive for its recognition of the serious risks posed to the
fair administration of justice by live TV and radio broadcasts, especially when
emotions are running high on the issues stirred by a case, while at the same
time acknowledging the necessity of keeping audio-visual recordings of the
proceedings of celebrated cases, for public information and exhibition, after
passions have subsided.
WHEREFORE, an audio-visual recording of the trial of former President
Estrada before the Sandiganbayan is hereby ordered to be made, for the
account of the Sandiganbayan, under the following conditions: (a) the trial
shall be recorded in its entirety, excepting such portions thereof as the
Sandiganbayan may determine should not be held public under Rule 119,
21 of the Rules of Criminal Procedure; (b) cameras shall be installed
inconspicuously inside the courtroom and the movement of TV crews shall be
regulated consistent with the dignity and solemnity of the proceedings; (c)
the audio-visual recordings shall be made for documentary purposes only
and shall be made without comment except such annotations of scenes
depicted therein as may be necessary to explain them; (d) the live broadcast
of the recordings before the Sandiganbayan shall have rendered its decision
in all the cases against the former President shall be prohibited under pain of
contempt of court and other sanctions in case of violations of the prohibition;
(e) to ensure that the conditions are observed, the audio-visual recording of
the proceedings shall be made under the supervision and control of the
Sandiganbayan or its Division concerned and shall be made pursuant to rules
promulgated by it; and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be deposited in the
National Museum and the Records Management and Archives Office for
preservation and exhibition in accordance with law.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Panganiban, and Gonzaga-Reyes, JJ., concur.
Bellosillo, J. I am for full live coverage hence I maintain my original view;
nonetheless. I concur.

Kapunan, J. I maintain my original view prohibiting live T.V. and radio


coverage and concur with the separate opinion of Justice Vitug.
Quisumbing, J. Although earlier I respectfully Dissented as I favor live TV
coverage, I now concur in the result.
Pardo, J. I concur with the denial of the motion for reconsideration only. The
conditions are inadequate. I join J. Vitug's opinion.
Buena, J. I concur with the Separate Opinion of Justice Vitug.
Ynares-Santiago, J. I concur with the separate opinion of J. Jose Vitug.
De Leon, Jr., J. I concur with Separate Opinion of Justice Vitug.
Sandoval-Gutierrez, J. I concur but only in the denial with finality of the MR.
Footnote
1 Nine (9) members of the Court, namely, JUSTICES VITUG, KAPUNAN, MENDOZA, PARDO, BUENA, GONZAGA-REYES, YNARESSANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ, vote to deny reconsideration, while six (6), namely, CHIEF JUSTICE DAVIDE, JR. and
JUSTICES BELLOSILLO, MELO, PUNO, PANGANIBAN, and QUISUMBING, vote to grant a reconsideration.

2 CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO, MENDOZA, PANGANIBAN, QUISUMBING, and GONZAGA-REYES.

3 JUSTICES VITUG, KAPUNAN, PARDO, BUENA, YNARES-SANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ.

4 R.A. No. 8492 provides in pertinent parts:

SEC. 7. Duties and Function. - The [National] Museum shall have the following duties and functions:

7.1. Acquire documents, collect, preserve, maintain, administer and exhibit to the public, cultural materials, objects of art,
archaeological artifacts, ecofacts, relics and other materials embodying the cultural and natural heritage of the Filipino national, as
well as those of foreign origin. Materials relevant to the recent history of the country shall be likewise acquired, collected, preserved,
maintained, advertised and exhibited by the Museum. (Emphasis added)

DEPARTMENT ORDER NO. 13-A, dated May, 9, 1985, of the Department of Education Culture and Sports provides:

Rule 7. Transfer of Records to Archives. -

7.5 Preservation of Archival Records.

7.5.1 Archival records shall be stored under one roof and authorize their accessibility to the public, subject to certain security and
safety measures to preserve the integrity of the records.

7.5.2 It shall be the responsibility of the Archives Division to protect archival documents in its custody and undertake corrective
measures to rehabilitate weakened or brittled documents in accordance with modern techniques.

5 160 SCRA 861 (1988). Cf. Lagunzad v. Soto Vda. De Gonzales, 92 SCRA 476 (1979), involving the novelized film on the life of Mioses
Padilla, a majoralty candidate of Magallon, Negros Occidental, who was murdered for political reasons at the instance of then
Governor Rafael Lacson.

6 Id. At 870.

7 Paul A. Freund, Contempt Power: Prevention, Not Retribution, TRIAL, January-February 1971 at 13.

Separate Opinion

VITUG, J.:

Due Process is timeless. It is a precious fundamental right that secures and protects, under a rule of law, the life, and liberty of a
person from the oppression of power. A cherished fixture in our bill of rights, its encompassing guarantee will not be diminished by
advances in science and technology. I fail to perceive it to be otherwise.

Precisely, in its 29th June 2001 decision, the Court did not consider it propitous to allow live television and radio coverage of the trial
in order to help ensure a just and fair trial. The Court felt it judicious to insulate not only the Sandiganbayan but also the trial
participants, the lawyers and witnesses, from being unduly influenced by possible adverse effects that such a coverage could bring.
Petitioner filed a motion for reconsideration of the above ruling and countered that, if one must be pitted against the other, the right
to public information of grave national interest should be held more paramount than the right of the accused to a "fair and public
trial," the former being appurtenant to the sovereign and latter being merely a privilege bestowed to an individual.

I am not ready to accept such a notion. I see it as being an implicit retreat, unwisely, from an age-old struggle of the individual
against the tyranny of the sovereign.1 The right of the public to information, in any event, is not here really being sacrified. The right
to know can very well be achieved via other media coverage; the windows of information through which the public might observe and
learn are not closed.

In addressing the present motion for reconsideration, colleagues on the Court opine that there should be an audio-visual recording of
the proceedings for documentary purposes because, first, the hearings are of historic significance, second, the Estrada cases
involve matters of vital concern to our people who have a fundamental right to know how their government works; third, the audiovisual presentation is essential for education and civil training of the people; and fourth, such recording can be used by appellate
courts in the event that the review of the proceedings, ruling, or decisions of the Sandiganbayan is sought or becomes
necessary.lawphil.net2

The proposition has novel features, regrettably, I still find it hard to believe that the presence of the cameras inside the courtroom
will not have an untoward impact on the court proceedings. No empirical data has been shown to suggest otherwise. To the contrary,
experience attests to the intimidating effect of cameras and electronic devices in courtrooms on the litigants, witnesses and
jurors.3 In addition, the natural reticence of witnesses at the stand can even easily be exacerbated by placing them on camera in
contravention of normal experience.4 The demeanor of the witnesses can also have an abstruse effect on the ability of the judge to

accurately assess the credibility of such witnesses.5 The presence of cameras, for whatever reason, may not adequately address the
dangers mentioned in the Court's decision of 29 June 2001. There are just too many imponderables.

Most importantly, it does not seem right to single out and make a spectacle of the cases against Mr. Estrada. Dignity is a precious
part of personability innate in ever human being, and there can be no cogent excuse for impinging it even to the slightest degree. It
is not the problem of privacy that can cause concern more than the erosion of reality that cameras tend to cast.

In the petition, albeit entitled an administrative matter, the only issue raised is whether the case of a former President pending
before the Sandiganbayan can be covered by live television and radio broadcast. The matter now being sought to be addressed
by my esteemed colleagues is not even an issue. If it has to be considered at all, the rule must be of general application and
promulgated after a thorough study and deliberation, certainly far more than what have been said and done in this case. Hearings,
where expert opinion is sought and given, should prove to be helpful and of value.1wphi1.nt

WHEREFORE, I concur but only in the denial with finality of the motion for reconsideration.

EN BANC
G.R. No. L-46496

February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and


propietor, and
NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR
UNION, INC., respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for
the Court of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial Relations
in the above-entitled case has filed a motion for reconsideration and moves
that, for the reasons stated in his motion, we reconsider the following legal
conclusions of the majority opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin
termino fijo de duracion o que no sea para una determinada, termina o
bien por voluntad de cualquiera de las partes o cada vez que ilega el

plazo fijado para el pago de los salarios segun costumbre en la


localidad o cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado contrato,
ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han
visto obligados a cesar en sus tarbajos por haberse declarando paro
forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u
obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato colectivo
de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para
una obra determiminada y que se niega a readmitir a dichos obreros
que cesaron como consecuencia de un paro forzoso, no es culpable de
practica injusta in incurre en la sancion penal del articulo 5 de la Ley
No. 213 del Commonwealth, aunque su negativa a readmitir se deba a
que dichos obreros pertenecen a un determinado organismo obrero,
puesto que tales ya han dejado deser empleados suyos por
terminacion del contrato en virtud del paro.
The respondent National Labor Union, Inc., on the other hand, prays for the
vacation of the judgement rendered by the majority of this Court and the
remanding of the case to the Court of Industrial Relations for a new trial, and
avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there was
shortage of leather soles in ANG TIBAY making it necessary for him to
temporarily lay off the members of the National Labor Union Inc., is
entirely false and unsupported by the records of the Bureau of Customs
and the Books of Accounts of native dealers in leather.
2. That the supposed lack of leather materials claimed by Toribio
Teodoro was but a scheme to systematically prevent the forfeiture of
this bond despite the breach of his CONTRACT with the Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated September
29, 1938, (re supposed delay of leather soles from the States) was but
a scheme to systematically prevent the forfeiture of this bond despite
the breach of his CONTRACT with the Philippine Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a company
or employer union dominated by Toribio Teodoro, the existence and
functions of which are illegal. (281 U.S., 548, petitioner's printed
memorandum, p. 25.)

5. That in the exercise by the laborers of their rights to collective


bargaining, majority rule and elective representation are highly
essential and indispensable. (Sections 2 and 5, Commonwealth Act No.
213.)
6. That the century provisions of the Civil Code which had been (the)
principal source of dissensions and continuous civil war in Spain cannot
and should not be made applicable in interpreting and applying the
salutary provisions of a modern labor legislation of American origin
where the industrial peace has always been the rule.
7. That the employer Toribio Teodoro was guilty of unfair labor practice
for discriminating against the National Labor Union, Inc., and unjustly
favoring the National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the
respondents that even with the exercise of due diligence they could
not be expected to have obtained them and offered as evidence in the
Court of Industrial Relations.
9. That the attached documents and exhibits are of such far-reaching
importance and effect that their admission would necessarily mean the
modification and reversal of the judgment rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for
reconsideration of the respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein after stead with
reference to the motion for a new trial of the respondent National Labor
Union, Inc., we are of the opinion that it is not necessary to pass upon the
motion for reconsideration of the Solicitor-General. We shall proceed to
dispose of the motion for new trial of the respondent labor union. Before
doing this, however, we deem it necessary, in the interest of orderly
procedure in cases of this nature, in interest of orderly procedure in cases of
this nature, to make several observations regarding the nature of the powers
of the Court of Industrial Relations and emphasize certain guiding principles
which should be observed in the trial of cases brought before it. We have reexamined the entire record of the proceedings had before the Court of
Industrial Relations in this case, and we have found no substantial evidence
that the exclusion of the 89 laborers here was due to their union affiliation or
activity. The whole transcript taken contains what transpired during the
hearing and is more of a record of contradictory and conflicting statements
of opposing counsel, with sporadic conclusion drawn to suit their own views.

It is evident that these statements and expressions of views of counsel have


no evidentiary value.
The Court of Industrial Relations is a special court whose functions are
specifically stated in the law of its creation (Commonwealth Act No. 103). It is
more an administrative than a part of the integrated judicial system of the
nation. It is not intended to be a mere receptive organ of the Government.
Unlike a court of justice which is essentially passive, acting only when its
jurisdiction is invoked and deciding only cases that are presented to it by the
parties litigant, the function of the Court of Industrial Relations, as will
appear from perusal of its organic law, is more active, affirmative and
dynamic. It not only exercises judicial or quasi-judicial functions in the
determination of disputes between employers and employees but its
functions in the determination of disputes between employers and
employees but its functions are far more comprehensive and expensive. It
has jurisdiction over the entire Philippines, to consider, investigate, decide,
and settle any question, matter controversy or dispute arising between,
and/or affecting employers and employees or laborers, and regulate the
relations between them, subject to, and in accordance with, the provisions of
Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes
of prevention, arbitration, decision and settlement, of any industrial or
agricultural dispute causing or likely to cause a strike or lockout, arising from
differences as regards wages, shares or compensation, hours of labor or
conditions of tenancy or employment, between landlords and tenants or
farm-laborers, provided that the number of employees, laborers or tenants of
farm-laborers involved exceeds thirty, and such industrial or agricultural
dispute is submitted to the Court by the Secretary of Labor or by any or both
of the parties to the controversy and certified by the Secretary of labor as
existing and proper to be by the Secretary of Labor as existing and proper to
be dealth with by the Court for the sake of public interest. (Section 4,ibid.) It
shall, before hearing the dispute and in the course of such hearing, endeavor
to reconcile the parties and induce them to settle the dispute by amicable
agreement. (Paragraph 2, section 4, ibid.) When directed by the President of
the Philippines, it shall investigate and study all industries established in a
designated locality, with a view to determinating the necessity and fairness
of fixing and adopting for such industry or locality a minimum wage or share
of laborers or tenants, or a maximum "canon" or rental to be paid by the
"inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may
appeal to voluntary arbitration in the settlement of industrial disputes; may
employ mediation or conciliation for that purpose, or recur to the more
effective system of official investigation and compulsory arbitration in order
to determine specific controversies between labor and capital industry and in
agriculture. There is in reality here a mingling of executive and judicial

functions, which is a departure from the rigid doctrine of the separation of


governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673,
promulgated September 13, 1939, we had occasion to joint out that the
Court of Industrial Relations et al., G. R. No. 46673, promulgated September
13, 1939, we had occasion to point out that the Court of Industrial Relations
is not narrowly constrained by technical rules of procedure, and the Act
requires it to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall not be
bound by any technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in such manner as
it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It
shall not be restricted to the specific relief claimed or demands made by the
parties to the industrial or agricultural dispute, but may include in the award,
order or decision any matter or determination which may be deemed
necessary or expedient for the purpose of settling the dispute or of
preventing further industrial or agricultural disputes. (section 13, ibid.) And
in the light of this legislative policy, appeals to this Court have been
especially regulated by the rules recently promulgated by the rules recently
promulgated by this Court to carry into the effect the avowed legislative
purpose. The fact, however, that the Court of Industrial Relations may be
said to be free from the rigidity of certain procedural requirements does not
mean that it can, in justifiable cases before it, entirely ignore or disregard the
fundamental and essential requirements of due process in trials and
investigations of an administrative character. There are primary rights which
must be respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the
right of the party interested or affected to present his own case and
submit evidence in support thereof. In the language of Chief Hughes,
in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the
liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play.
(2) Not only must the party be given an opportunity to present his case
and to adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented. (Chief
Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law.
ed. 1288.) In the language of this court inEdwards vs. McCoy, 22 Phil.,
598, "the right to adduce evidence, without the corresponding duty on
the part of the board to consider it, is vain. Such right is conspicuously

futile if the person or persons to whom the evidence is presented can


thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support it is a nullity, a place
when directly attached." (Edwards vs. McCoy, supra.) This principle
emanates from the more fundamental is contrary to the vesting of
unlimited power anywhere. Law is both a grant and a limitation upon
power.
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated
November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia and Maryland Coach Co. v. national
labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law.
ed. 965.) It means such relevant evidence as a reasonable mind accept
as adequate to support a conclusion." (Appalachian Electric Power v.
National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor
Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; BallstonStillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d
758, 760.) . . . The statute provides that "the rules of evidence
prevailing in courts of law and equity shall not be controlling.' The
obvious purpose of this and similar provisions is to free administrative
boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent inn judicial
proceedings would not invalidate the administrative order. (Interstate
Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48
Law. ed. 860; Interstate Commerce Commission v. Louisville and
Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431;
United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law.
ed. 624.) But this assurance of a desirable flexibility in administrative
procedure does not go far as to justify orders without a basis in
evidence having rational probative force. Mere uncorroborated hearsay
or rumor does not constitute substantial evidence. (Consolidated
Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed.
No. 4, Adv. Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties
affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S.
88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the

latter be protected in their right to know and meet the case against
them. It should not, however, detract from their duty actively to see
that the law is enforced, and for that purpose, to use the authorized
legal methods of securing evidence and informing itself of facts
material and relevant to the controversy. Boards of inquiry may be
appointed for the purpose of investigating and determining the facts in
any given case, but their report and decision are only advisory.
(Section 9, Commonwealth Act No. 103.) The Court of Industrial
Relations may refer any industrial or agricultural dispute or any matter
under its consideration or advisement to a local board of inquiry, a
provincial fiscal. a justice of the peace or any public official in any part
of the Philippines for investigation, report and recommendation, and
may delegate to such board or public official such powers and
functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the
Court itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore,
must act on its or his own independent consideration of the law and
facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. It may be that the volume of work
is such that it is literally Relations personally to decide all controversies
coming before them. In the United States the difficulty is solved with
the enactment of statutory authority authorizing examiners or other
subordinates to render final decision, with the right to appeal to board
or commission, but in our case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the reasons for
the decision rendered. The performance of this duty is inseparable
from the authority conferred upon it.
In the right of the foregoing fundamental principles, it is sufficient to observe
here that, except as to the alleged agreement between the Ang Tibay and
the National Worker's Brotherhood (appendix A), the record is barren and
does not satisfy the thirst for a factual basis upon which to predicate, in a
national way, a conclusion of law.
This result, however, does not now preclude the concession of a new trial
prayed for the by respondent National Labor Union, Inc., it is alleged that
"the supposed lack of material claimed by Toribio Teodoro was but a scheme
adopted to systematically discharged all the members of the National Labor

Union Inc., from work" and this avernment is desired to be proved by the
petitioner with the "records of the Bureau of Customs and the Books of
Accounts of native dealers in leather"; that "the National Workers
Brotherhood Union of Ang Tibay is a company or employer union dominated
by Toribio Teodoro, the existence and functions of which are illegal."
Petitioner further alleges under oath that the exhibits attached to the
petition to prove his substantial avernments" are so inaccessible to the
respondents that even within the exercise of due diligence they could not be
expected to have obtained them and offered as evidence in the Court of
Industrial Relations", and that the documents attached to the petition "are of
such far reaching importance and effect that their admission would
necessarily mean the modification and reversal of the judgment rendered
herein." We have considered the reply of Ang Tibay and its arguments
against the petition. By and large, after considerable discussions, we have
come to the conclusion that the interest of justice would be better served if
the movant is given opportunity to present at the hearing the documents
referred to in his motion and such other evidence as may be relevant to the
main issue involved. The legislation which created the Court of Industrial
Relations and under which it acts is new. The failure to grasp the
fundamental issue involved is not entirely attributable to the parties
adversely affected by the result. Accordingly, the motion for a new trial
should be and the same is hereby granted, and the entire record of this case
shall be remanded to the Court of Industrial Relations, with instruction that it
reopen the case, receive all such evidence as may be relevant and otherwise
proceed in accordance with the requirements set forth hereinabove. So
ordered.
Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.
G.R. No. L-68288 July 11, 1986
DIOSDADO GUZMAN, ULYSSES URBIZTONDO, and ARIEL
RAMACULA, petitioners,
vs.
NATIONAL UNIVERSITY and DOMINGO L. JHOCSON in his capacity as
President of National University,respondents.
Efren H. Mercado and Haydee Yorac for petitioners.
Samson S. Alcantara for respondents.

NARVASA, J.:
Petitioners Diosdado Guzman, Ulysses Urbiztondo and Ariel Ramacula,
students of respondent National University, have come to this Court to seek
relief from what they describe as their school's "continued and persistent
refusal to allow them to enrol." In their petition "for extraordinary legal and
equitable remedies with prayer for preliminary mandatory injunction" dated
August 7, 1984, they allege:
1) that respondent University's avowed reason for its refusal to
re-enroll them in their respective courses is "the latter's
participation in peaceful mass actions within the premises of the
University.
2) that this "attitude of the (University) is simply a continuation
of its cavalier if not hostile attitude to the student's exercise of
their basic constitutional and human rights already recorded
in Rockie C. San Juan vs. National University, S.C. G.R. No. 65443
(1983) and its utter contempt for the principle of due process of
law to the prejudice of petitioners;" and
3) that "in effect petitioners are subjected to the extreme penalty
of expulsion without cause or if there be any, without being
informed of such cause and without being afforded the
opportunity to defend themselves. Berina v. Philippine Maritime
Institute (117 SCRA 581 [1983]).
In the comment filed on September 24, 1986 for respondent University and
its President pursuant to this Court's requirement therefor 1 , respondents
make the claim:
1) that "petitioners' failure to enroll for the first semester of the school year
1984-1985 is due to their own fault and not because of their allegedexercise
of their constitutional and human rights;"
2) that petitioner Urbiztondo, sought to re-enroll only on July 5, 1986 "when
the enrollment period was already closed;"
3) that as regards petitioner Guzman, his "academic showing" was "poor",
"due to his activities in leading boycotts of classes"; that when his father was
notified of this development sometime in August, 1982, the latter had
demanded that his son "reform or else we will recall him to the province";
that Guzman was one of the petitioners in G.R. No. 65443 entitled "Rockie

San Juan, et al. vs. National University, et al.," at the hearing of which on
November 23, 1983 this Court had admonished "the students involved (to)
take advantage and make the most of the opportunity given to them to
study;" that Guzman "however continued to lead or actively participate in
activities within the university premises, conducted without prior permit from
school authorities, that disturbed or disrupted classes therein;" that
moreover, Guzman "is facing criminal charges for malicious mischief before
the Metropolitan Trial Court of Manila (Crim. Case No. 066446) in connection
with the destruction of properties of respondent University on September 12,
1983 ", and "is also one of the defendants in Civil Case No. 8320483 of the
Regional Trial Court of Manila entitled 'National University, Inc. vs. Rockie San
Juan et al.' for damages arising from destruction of university properties
4) that as regards petitioner Ramacula, like Guzman "he continued to lead or
actively participate, contrary to the spirit of the Resolution dated November
23, 1983 of this ... Court (in G.R. No. 65443 in which he was also one of the
petitioners) and to university rules and regulations, within university
premises but without permit from university officials in activities that
disturbed or disrupted classes;" and
5) that petitioners have "failures in their records, (and) are not of good
scholastic standing. "
Respondents close their comment with the following assertions, to wit:
1) By their actuations, petitioners must be deemed to have forfeited their
privilege, if any, to seek enrollment in respondent university. The rights of
respondent university, as an institution of higher learning, must also be
respected. It is also beyond comprehension why petitioners, who continually
despise and villify respondent university and its officials and faculty
members, should persist in seeking enrollment in an institution that they
hate.
2) Under the circumstances, and without regard to legal technicalities, it is
not to the best interest of all concerned that petitioners be allowed to enroll
in respondent university.
3) In any event, petitioners' enrollment being on the semestral basis,
respondents cannot be compelled to enroll them after the end of the
semester.
On October 2, 1984 this Court issued a resolution reading as follows:

... Acting on the Comment submitted by respondent, the Court


Resolved to NOTE the same and to require a REPLY to such
Comment. The Court further Resolved to ISSUE a MANDATORY
INJUNCTION, enjoining respondent to allow the enrolment of
petitioners for the coming semester without prejudice to any
disciplinary proceeding to which any or all of them may be
subjected with their right to lawful defense recognized and
respected. As regards petitioner Diosdado Guzman, even if it be
a fact that there is a pending criminal charge against him for
malicious mischief, the Court nonetheless is of the opinion that,
as above-noted, without prejudice to the continuation of any
disciplinary proceeding against him, that he be allowed to
resume his studies in the meanwhile. As shown in Annex 2 of the
petition itself, Mr. Juan P. Guzman, father of said petitioner, is
extending full cooperation with petitioners to assure that
whatever protest or grievance petitioner Guzman may have
would be ventilated in a lawful and peaceful manner.
Petitioners' REPLY inter alia
1) denied that Urbiztondo attempted to enroll only on July 5, 1984 (when
enrollment was already closed), it being alleged that "while he did try to
enroll that day, he also attempted to do so several times before that date, all
to no avail, because respondents ... persistently refused to allow him to do
so" respondents' ostensible reason being that Urbiztondo (had) participated
in mass actions ... within the school premises," although there were no
existing disciplinary charge against petitioner Urbiztondo" at the time;
2) asserted that "neither the text nor the context of the resolution 2 justifies
the conclusion that "petitioners' right to exercise their constitutional
freedoms" had thereby been restricted or limited; and
3) alleged that "the holding of activities (mass action) in the school premises
without the permission of the school ... can be explained by the fact that the
respondents persistently refused to issue such permit repeatedly sought by
the students. "
On November 23, 1984, this Court promulgated another resolution, this time
reading as follows:
... The Court, after considering the pleadings filed and
deliberating on the issues raised in the petition for extraordinary
legal and equitable remedies with prayer for preliminary

mandatory injunction as well as the respondents' comment on


the petition and the reply of counsel for petitioners to the
respondents' comment, Resolved to (a) give DUE COURSE to the
petition; (b) consider the respondents' comment as ANSWER to
the petition; and (c) require the parties to file their respective
MEMORANDA within twenty (20) days from notice. ... .
Immediately apparent from a reading of respondents' comment and
memorandum is the fact that they had never conducted proceedings of any
sort to determine whether or not petitioners-students had indeed led or
participated "in activities within the university premises, conducted without
prior permit from school authorities, that disturbed or disrupted classes
therein" 3 or perpetrated acts of "vandalism, coercion and intimidation,
slander, noise barrage and other acts showing disdain for and defiance of
University authority." 4 Parenthetically, the pendency of a civil case for
damages and a criminal case for malicious mischief against petitioner
Guzman, cannot, without more, furnish sufficient warrant for his expulsion or
debarment from re-enrollment. Also apparent is the omission of respondents
to cite this Court to any duly published rule of theirs by which students may
be expelled or refused re-enrollment for poor scholastic standing.
Under the Education Act of 1982, 5 the petitioners, as students, have the
right among others "to freely choose their field of study subject to existing
curricula and to continue their course therein up to graduation, except in
case of academic deficiency, or violation of disciplinary
regulations." 6Petitioners were being denied this right, or being disciplined,
without due process, in violation of the admonition in the Manual of
Regulations for Private Schools 7 that "(n)o penalty shall be imposed upon
any student except for cause as defined in ... (the) Manual and/or in the
school rules and regulations as duly promulgated and only after due
investigation shall have been conducted." 8 This Court is therefore
constrained, as in Berina v. Philippine Maritime Institute, 9 to declare illegal
this act of respondents of imposing sanctions on students without due
investigation.
Educational institutions of course have the power to "adopt and enforce such
rules as may be deemed expedient for ... (its) government, ... (this being)"
incident to the very object of incorporation, and indispensable to the
successful management of the college." 10 The rules may include those
governing student discipline. Indeed, the maintenance of "good school
discipline" is a duty specifically enjoined on "every private school" by the
Manual of Regulations for Private Schools; 11 and in this connection, the
Manual further provides that-

... The school rules governing discipline and the corresponding


sanctions therefor must be clearly specified and defined in
writing and made known to the students and/or their parents or
guardians. Schools shall have the authority and prerogative to
promulgate such rules and regulations as they may deem
necessary from time to time effective as of the date of their
promulgation unless otherwise specified. 12
But, to repeat, the imposition of disciplinary sanctions requires observance of
procedural due process. And it bears stressing that due process in
disciplinary cases involving students does not entail proceedings and
hearings similar to those prescribed for actions and proceedings in courts of
justice. The proceedings in student discipline cases may be summary; and
cross-examination is not, 'contrary to petitioners' view, an essential part
thereof. There are withal minimum standards which must be met to satisfy
the demands of procedural due process; and these are, that (1) the students
must be informed in writing of the nature and cause of any accusation
against them; (2) they shag have the right to answer the charges against
them, with the assistance of counsel, if desired; (3) they shall be informed of
the evidence against them; (4) they shall have the right to adduce evidence
in their own behalf; and (5) the evidence must be duly considered by the
investigating committee or official designated by the school authorities to
hear and decide the case.
WHEREFORE, the petition is granted and the respondents are directed to
allow the petitioners to re-enroll or otherwise continue with their respective
courses, without prejudice to any disciplinary proceedings to which any or all
of them may be subjected in accordance with the standards herein set forth.
SO ORDERED.
[G.R. No. 111953. December 12, 1997]
HON. RENATO C. CORONA, in his capacity as Assistant Secretary for
Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting
Secretary, Department of Transportation and Communications,
and ROGELIO A. DAYAN, in his capacity as General Manager of
Philippine Ports Authority, petitioners, vs. UNITED HARBOR
PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS
ASSOCIATION, respondents.
DECISION

ROMERO, J.:
In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the
term of appointment of harbor pilots to one year subject to yearly renewal or
cancellation, did the Philippine Ports Authority (PPA) violate respondents right
to exercise their profession and their right to due process of law?
The PPA was created on July 11, 1974, by virtue of Presidential Decree
No. 505. On December 23, 1975, Presidential Decree No. 857 was issued
revising the PPAs charter. Pursuant to its power of control, regulation, and
supervision of pilots and the pilotage profession, [1] the PPA promulgated PPAAO-03-85 [2] on March 21, 1985, which embodied the Rules and Regulations
Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in
Philippine Ports. These rules mandate, inter alia, that aspiring pilots must be
holders of pilot licenses [3] and must train as probationary pilots in outports
for three months and in the Port of Manila for four months. It is only after
they
have
achieved
satisfactory
performance [4] that
they
are
[5]
given permanent and regular appointments by the PPA itself to exercise
harbor pilotage until they reach the age of 70, unless sooner removed by
reason of mental or physical unfitness by the PPA General Manager. [6] Harbor
pilots in every harbor district are further required to organize themselves into
pilot associations which would make available such equipment as may be
required by the PPA for effective pilotage services. In view of this mandate,
pilot associations invested in floating, communications, and office
equipment. In fact, every new pilot appointed by the PPA automatically
becomes a member of a pilot association and is required to pay a
proportionate equivalent equity or capital before being allowed to assume his
duties, as reimbursement to the association concerned of the amount it paid
to his predecessor.
Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO
No. 04-92 [7] on July 15, 1992, whose avowed policy was to instill effective
discipline and thereby afford better protection to the port users through the
improvement of pilotage services. This was implemented by providing
therein that all existing regular appointments which have been previously
issued either by the Bureau of Customs or the PPA shall remain valid up to 31
December 1992 only and that all appointments to harbor pilot positions in all
pilotage districts shall, henceforth, be only for a term of one (1) year from
date of effectivity subject to yearly renewal or cancellation by the Authority
after conduct of a rigid evaluation of performance.
On August 12, 1992, respondents United Harbor Pilots Association and
the Manila Pilots Association, through Capt. Alberto C. Compas, questioned

PPA-AO No. 04-92 before the Department of Transportation and


Communication, but they were informed by then DOTC Secretary Jesus B.
Garcia that the matter of reviewing, recalling or annulling PPAs
administrative issuances lies exclusively with its Board of Directors as its
governing body.
Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No.
08-92 [8] which laid down the criteria or factors to be considered in the
reappointment of harbor pilots, viz.: (1) Qualifying Factors: [9] safety record
and physical/mental medical exam report and (2) Criteria for
Evaluation: [10] promptness in servicing vessels, compliance with PPA Pilotage
Guidelines, number of years as a harbor pilot, average GRT of vessels
serviced as pilot, awards/commendations as harbor pilot, and age.
Respondents reiterated their request for the suspension of the
implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his
position that the matter was within the jurisdiction of the Board of Directors
of the PPA. Compas appealed this ruling to the Office of the President (OP),
reiterating his arguments before the DOTC.
On December 23, 1992, the OP issued an order directing the PPA to hold
in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA
countered that said administrative order was issued in the exercise of its
administrative control and supervision over harbor pilots under Section 6-a
(viii), Article IV of P. D. No. 857, as amended, and it, along with its
implementing guidelines, was intended to restore order in the ports and to
improve the quality of port services.
On March 17, 1993, the OP, through then Assistant Executive Secretary
for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted
the restraining order issued earlier. [11] He concluded that PPA-AO No. 04-92
applied to all harbor pilots and, for all intents and purposes, was not the act
of Dayan, but of the PPA, which was merely implementing Section 6 of P.D.
No. 857, mandating it to control, regulate and supervise pilotage and
conduct of pilots in any port district.
On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and
its implementing memoranda and circulars, Secretary Corona opined that:
The exercise of ones profession falls within the constitutional guarantee
against wrongful deprivation of, or interference with, property rights without
due process. In the limited context of this case, PPA-AO 04-92 does not
constitute a wrongful interference with, let alone a wrongful deprivation of,

the property rights of those affected thereby. As may be noted, the issuance
aims no more than to improve pilotage services by limiting the appointment
to harbor pilot positions to one year, subject to renewal or cancellation after
a rigid evaluation of the appointees performance.
PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor
pilots of their profession in PPAs jurisdictional area. (Emphasis supplied)
Finally, as regards the alleged absence of ample prior consultation before
the issuance of the administrative order, Secretary Corona cited Section 26
of P.D. No. 857, which merely requires the PPA to consult with relevant
Government agencies. Since the PPA Board of Directors is composed of the
Secretaries of the DOTC, the Department of Public Works and Highways, the
Department of Finance, and the Department of Environment and Natural
Resources, as well as the Director-General of the National Economic
Development Agency, the Administrator of the Maritime Industry Authority
(MARINA), and the private sector representative who, due to his knowledge
and expertise, was appointed by the President to the Board, he concluded
that the law has been sufficiently complied with by the PPA in issuing the
assailed administrative order.
Consequently, respondents filed a petition for certiorari, prohibition and
injunction with prayer for the issuance of a temporary restraining order and
damages, before Branch 6 of the Regional Trial Court of Manila, which was
docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court
rendered the following judgment: [12]
WHEREFORE, for all the foregoing, this Court hereby rules that:
1. Respondents (herein petitioners) have acted in excess of
jurisdiction and with grave abuse of discretion and in a capricious,
whimsical and arbitrary manner in promulgating PPA Administrative
Order 04-92 including all its implementing Memoranda, Circulars
and Orders;
2. PPA Administrative Order 04-92 and its implementing Circulars and Orders
are declared null and void;
3. The respondents are permanently enjoined from implementing PPA
Administrative Order 04-92 and its implementing Memoranda, Circulars and
Orders.
No costs.

SO ORDERED.
The court a quo pointed out that the Bureau of Customs, the precursor of
the PPA, recognized pilotage as a profession and, therefore, a property right
under Callanta v. Carnation Philippines, Inc. [13] Thus, abbreviating the term
within which that privilege may be exercised would be an interference with
the property rights of the harbor pilots. Consequently, any withdrawal or
alteration of such property right must be strictly made in accordance with
the constitutional mandate of due process of law. This was apparently not
followed by the PPA when it did not conduct public hearings prior to the
issuance of PPA-AO No. 04-92; respondents allegedly learned about it only
after its publication in the newspapers. From this decision, petitioners
elevated their case to this Court on certiorari.
After carefully examining the records and deliberating on the arguments
of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in
stark disregard of respondents right against deprivation of property without
due process of law. Consequently, the instant petition must be denied.
Section 1 of the Bill of Rights lays down what is known as the due process
clause of the Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property
without due process of law, x x x.
In order to fall within the aegis of this provision, two conditions must
concur, namely, that there is a deprivation and that such deprivation is done
without proper observance of due process. When one speaks of due process
of law, however, a distinction must be made between matters of procedure
and matters of substance. In essence, procedural due process refers to the
method or manner by which the law is enforced, while substantive due
process requires that the law itself, not merely the procedures by which the
law would be enforced, is fair, reasonable, and just. [14] PPA-AO No. 04-92
must be examined in light of this distinction.
Respondents argue that due process was not observed in the adoption of
PPA-AO No. 04-92 allegedly because no hearing was conducted whereby
relevant government agencies and the pilots themselves could ventilate their
views. They are obviously referring to the procedural aspect of the
enactment. Fortunately, the Court has maintained a clear position in this
regard, a stance it has stressed in the recent case of Lumiqued v.Hon.
Exevea, [15] where it declared that (a)s long as a party was given the
opportunity to defend his interests in due course, he cannot be said to have

been denied due process of law, for this opportunity to be heard is the very
essence of due process. Moreover, this constitutional mandate is deemed
satisfied if a person is granted an opportunity to seek reconsideration of the
action or ruling complained of.
In the case at bar, respondents questioned PPA-AO No. 04-92 no less than
four times [16] before the matter was finally elevated to this Tribunal. Their
arguments on this score, however, fail to persuade. While respondents
emphasize that the Philippine Coast Guard, which issues the licenses of pilots
after administering the pilots examinations, was not consulted, [17] the facts
show that the MARINA, which took over the licensing function of the
Philippine Coast Guard, was duly represented in the Board of Directors of the
PPA. Thus, petitioners correctly argued that, there being no matters of naval
defense involved in the issuance of the administrative order, the Philippine
Coast Guard need not be consulted.[18]
Neither does the fact that the pilots themselves were not consulted in
any way taint the validity of the administrative order. As a general rule,
notice and hearing, as the fundamental requirements of procedural due
process, are essential only when an administrative body exercises its quasijudicial function. In the performance of its executive or legislative functions,
such as issuing rules and regulations, an administrative body need not
comply with the requirements of notice and hearing.[19]
Upon the other hand, it is also contended that the sole and exclusive
right to the exercise of harbor pilotage by pilots is a settled
issue. Respondents aver that said right has become vested and can only be
withdrawn or shortened by observing the constitutional mandate of due
process of law. Their argument has thus shifted from the procedural to one of
substance. It is here where PPA-AO No. 04-92 fails to meet the condition set
by the organic law.
There is no dispute that pilotage as a profession has taken on the nature
of a property right. Even petitioner Corona recognized this when he stated in
his March 17, 1993, decision that (t)he exercise of ones profession falls
within the constitutional guarantee against wrongful deprivation of, or
interference with, property rights without due process. [20] He merely
expressed the opinion that (i)n the limited context of this case, PPA-AO 04-92
does not constitute a wrongful interference with, let alone a wrongful
deprivation of, the property rights of those affected thereby, and that PPA-AO
04-92 does not forbid, but merely regulates, the exercise by harbor pilots of
their profession. As will be presently demonstrated, such supposition is

gravely erroneous and tends to perpetuate an administrative order which is


not only unreasonable but also superfluous.
Pilotage, just like other professions, may be practiced only by duly
licensed individuals. Licensure is the granting of license especially to practice
a profession. It is also the system of granting licenses (as for professional
practice) in accordance with established standards. [21] A license is a right or
permission granted by some competent authority to carry on a business or
do an act which, without such license, would be illegal.[22]
Before harbor pilots can earn a license to practice their profession, they
literally have to pass through the proverbial eye of a needle by taking, not
one but five examinations, each followed by actual training and
practice. Thus, the court a quo observed:
Petitioners (herein respondents) contend, and the respondents (herein
petitioners) do not deny, that here (sic) in this jurisdiction, before a person
can be a harbor pilot, he must pass five (5) government professional
examinations, namely, (1) For Third Mate and after which he must work, train
and practice on board a vessel for at least a year; (2) For Second Mate and
after which he must work, train and practice for at least a year; (3) For Chief
Mate and after which he must work, train and practice for at least a year;
(4) For a Master Mariner and after which he must work as Captain of vessels
for at least two (2) years to qualify for an examination to be a pilot; and
finally, of course, that given for pilots.
Their license is granted in the form of an appointment which allows them
to engage in pilotage until they retire at the age 70 years. This is a vested
right. Under the terms of PPA-AO No. 04-92, (a)ll existing regular
appointments which have been previously issued by the Bureau of Customs
or the PPA shall remain valid up to 31 December 1992 only, and (a)ll
appointments to harbor pilot positions in all pilotage districts shall,
henceforth, be only for a term of one (1) year from date of effectivity subject
to renewal or cancellation by the Authority after conduct of a rigid evaluation
of performance.
It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of
harbor pilots to enjoy their profession before their compulsory retirement. In
the past, they enjoyed a measure of security knowing that after passing five
examinations and undergoing years of on-the-job training, they would have a
license which they could use until their retirement, unless sooner revoked by
the PPA for mental or physical unfitness. Under the new issuance, they have
to contend with an annual cancellation of their license which can be

temporary or permanent depending on the outcome of their performance


evaluation. Veteran pilots and neophytes alike are suddenly confronted with
one-year terms which ipso facto expire at the end of that period. Renewal of
their license is now dependent on a rigid evaluation of performance which is
conducted only after the license has already been cancelled. Hence, the use
of the term renewal. It is this pre-evaluation cancellation which primarily
makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real
sense, it is a deprivation of property without due process of law.
The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already
covered by PPA-AO No. 03-85, which is still operational. Respondents are
correct in pointing out that PPA-AO No. 04-92 is a surplusage [23]and,
therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive
order setting forth the Rules and Regulations Governing Pilotage Services,
the Conduct of Pilots and Pilotage Fees in Philippine Ports. It provides, inter
alia, for the qualification, appointment, performance evaluation, disciplining
and removal of harbor pilots - matters which are duplicated in PPA-AO No. 0492 and its implementing memorandum order. Since it adds nothing new or
substantial, PPA-AO No. 04-92 must be struck down.
Finally, respondents insinuation that then PPA General Manager Dayan
was responsible for the issuance of the questioned administrative order may
have some factual basis; after all, power and authority were vested in his
office to propose rules and regulations. The trial courts finding of animosity
between him and private respondents might likewise have a grain of
truth. Yet the number of cases filed in court between private respondents
and Dayan, including cases which have reached this Court, cannot certainly
be considered the primordial reason for the issuance of PPA-AO No. 04-92. In
the absence of proof to the contrary, Dayan should be presumed to have
acted in accordance with law and the best of professional motives. In any
event, his actions are certainly always subject to scrutiny by higher
administrative authorities.
WHEREFORE, the instant petition is hereby DISMISSED and the assailed
decision of the court a quo dated September 6, 1993, in Civil Case No. 9365673 is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-5060

January 26, 1910

THE UNITED STATES, plaintiff-appellee,


vs.
LUIS TORIBIO, defendant-appellant.
Rodriguez & Del Rosario, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence of record fully sustains the findings of the trial court that the
appellant slaughtered or caused to be slaughtered for human consumption,
the carabao described in the information, without a permit from the
municipal treasure of the municipality wherein it was slaughtered, in
violation of the provisions of sections 30 and 33 of Act No. 1147, an Act
regulating the registration, branding, and slaughter of large cattle.
It appears that in the town of Carmen, in the Province of Bohol, wherein the
animal was slaughtered there is no municipal slaughterhouse, and counsel
for appellant contends that under such circumstances the provisions of Act
No. 1147 do not prohibit nor penalize the slaughter of large cattle without a
permit of the municipal treasure. Sections 30, 31, 32, and 33 of the Act are
as follows:
SEC. 30. No large cattle shall be slaughtered or killed for food at the
municipal slaughterhouse except upon permit secured from the
municipal treasure. Before issuing the permit for the slaughter of large
cattle for human consumption, the municipal treasurer shall require for
branded cattle the production of the original certificate of ownership
and certificates of transfer showing title in the person applying for the
permit, and for unbranded cattle such evidence as may satisfy said
treasurer as to the ownership of the animals for which permit to
slaughter has been requested.
SEC. 31. No permit to slaughter has been carabaos shall be granted by
the municipal treasurer unless such animals are unfit for agricultural
work or for draft purposes, and in no event shall a permit be given to
slaughter for food any animal of any kind which is not fit for human
consumption.
SEC. 32. The municipal treasurer shall keep a record of all permits for
slaughter issued by him, and such record shall show the name and
residence of the owner, and the class, sex, age, brands, knots of
radiated hair commonly know as remolinos or cowlicks, and other

marks of identification of the animal for the slaughter of which permit


is issued and the date on which such permit is issued. Names of
owners shall be alphabetically arranged in the record, together with
date of permit.
A copy of the record of permits granted for slaughter shall be
forwarded monthly to the provincial treasurer, who shall file and
properly index the same under the name of the owner, together with
date of permit.
SEC. 33. Any person slaughtering or causing to be slaughtered for
human consumption or killing for food at the municipal slaughterhouse
any large cattle except upon permit duly secured from the municipal
treasurer, shall be punished by a fine of not less than ten nor more
than five hundred pesos, Philippine currency, or by imprisonment for
not less than one month nor more than six months, or by both such
fine and imprisonment, in the discretion of the court.
It is contended that the proper construction of the language of these
provisions limits the prohibition contained in section 30 and the penalty
imposed in section 33 to cases (1) of slaughter of large cattle for human
consumptionin a municipal slaughter without a permit duly secured from the
municipal treasurer, and (2) cases of killing of large cattle for food in a
municipal slaughterhouse without a permit duly secured from the municipal
treasurer; and it is urged that the municipality of Carmen not being provided
with a municipal slaughterhouse, neither the prohibition nor the penalty is
applicable to cases of slaughter of large cattle without a permit in that
municipality.
We are of opinion, however, that the prohibition contained in section 30
refers (1) to the slaughter of large cattle for human consumption, anywhere,
without a permit duly secured from the municipal treasurer, and (2)
expressly and specifically to the killing for food of large cattle at a municipal
slaughterhouse without such permit; and that the penalty provided in section
33 applies generally to the slaughter of large cattle for human consumption,
anywhere, without a permit duly secured from the municipal treasurer, and
specifically to the killing for food of large cattle at a municipal
slaughterhouse without such permit.
It may be admitted at once, that the pertinent language of those sections
taken by itself and examined apart from the context fairly admits of two
constructions: one whereby the phrase "at the municipal slaughterhouse"
may be taken as limiting and restricting both the word "slaughtered" and the

words "killed for food" in section 30, and the words "slaughtering or causing
to be slaughtered for human consumption" and the words "killing for food" in
section 33; and the other whereby the phrase "at the municipal
slaughterhouse" may be taken as limiting and restricting merely the words
"killed for food" and "killing for food" as used in those sections. But upon a
reading of the whole Act, and keeping in mind the manifest and expressed
purpose and object of its enactment, it is very clear that the latter
construction is that which should be adopted.
The Act primarily seeks to protect the "large cattle" of the Philippine Islands
against theft and to make easy the recovery and return of such cattle to their
proper owners when lost, strayed, or stolen. To this end it provides an
elaborate and compulsory system for the separate branding and registry of
ownership of all such cattle throughout the Islands, whereby owners are
enabled readily and easily to establish their title; it prohibits and invalidates
all transfers of large cattle unaccompanied by certificates of transfer issued
by the proper officer in the municipality where the contract of sale is made;
and it provides also for the disposition of thieves or persons unlawfully in
possession, so as to protect the rights of the true owners. All this, manifestly,
in order to make it difficult for any one but the rightful owner of such cattle
to retain them in his possession or to dispose of them to others. But the
usefulness of this elaborate and compulsory system of identification, resting
as it does on the official registry of the brands and marks on each separate
animal throughout the Islands, would be largely impaired, if not totally
destroyed, if such animals were requiring proof of ownership and the
production of certificates of registry by the person slaughtering or causing
them to be slaughtered, and this especially if the animals were slaughtered
privately or in a clandestine manner outside of a municipal slaughterhouse.
Hence, as it would appear, sections 30 and 33 prohibit and penalize the
slaughter for human consumption or killing for food at a municipal
slaughterhouse of such animals without a permit issued by the municipal
treasurer, and section 32 provides for the keeping of detailed records of all
such permits in the office of the municipal and also of the provincial
treasurer.
If, however, the construction be placed on these sections which is contended
for by the appellant, it will readily be seen that all these carefully worked out
provisions for the registry and record of the brands and marks of
identification of all large cattle in the Islands would prove in large part
abortion, since thieves and persons unlawfully in possession of such cattle,
and naturally would, evade the provisions of the law by slaughtering them
outside of municipal slaughterhouses, and thus enjoy the fruits of their
wrongdoing without exposing themselves to the danger of detection incident

to the bringing of the animals to the public slaughterhouse, where the brands
and other identification marks might be scrutinized and proof of ownership
required.
Where the language of a statute is fairly susceptible of two or more
constructions, that construction should be adopted which will most tend to
give effect to the manifest intent of the lawmaker and promote the object for
which the statute was enacted, and a construction should be rejected which
would tend to render abortive other provisions of the statute and to defeat
the object which the legislator sought to attain by its enactment. We are of
opinion, therefore, that sections 30 and 33 of the Act prohibit and penalize
the slaughtering or causing to be slaughtered for human consumption of
large cattle at any place without the permit provided for in section 30.
It is not essential that an explanation be found for the express prohibition in
these sections of the "killing for food at a municipal slaughterhouse" of such
animals, despite the fact that this prohibition is clearly included in the
general prohibition of the slaughter of such animals for human consumption
anywhere; but it is not improbable that the requirement for the issue of a
permit in such cases was expressly and specifically mentioned out of
superabundance of precaution, and to avoid all possibility of
misunderstanding in the event that some of the municipalities should be
disposed to modify or vary the general provisions of the law by the passage
of local ordinances or regulations for the control of municipal slaughterhouse.
Similar reasoning applied to the specific provisions of section 31 of the Act
leads to the same conclusion. One of the secondary purposes of the law, as
set out in that section, is to prevent the slaughter for food of carabaos fit for
agricultural and draft purposes, and of all animals unfit for human
consumption. A construction which would limit the prohibitions and penalties
prescribed in the statute to the killing of such animals in municipal
slaughterhouses, leaving unprohibited and unpenalized their slaughter
outside of such establishments, so manifestly tends to defeat the purpose
and object of the legislator, that unless imperatively demanded by the
language of the statute it should be rejected; and, as we have already
indicated, the language of the statute is clearly susceptible of the
construction which we have placed upon it, which tends to make effective
the provisions of this as well as all the other sections of the Act.
It appears that the defendant did in fact apply for a permit to slaughter his
carabao, and that it was denied him on the ground that the animal was not
unfit "for agricultural work or for draft purposes." Counsel for appellant
contends that the statute, in so far as it undertakes to penalize the slaughter

of carabaos for human consumption as food, without first obtaining a permit


which can not be procured in the event that the animal is not unfit "for
agricultural work or draft purposes," is unconstitutional and in violation of the
terms of section 5 of the Philippine Bill (Act of Congress, July 1, 1902), which
provides that "no law shall be enacted which shall deprive any person of life,
liberty, or property without due process of law."
It is not quite clear from the argument of counsel whether his contention is
that this provision of the statute constitutes a taking of property for public
use in the exercise of the right of eminent domain without providing for the
compensation of the owners, or that it is an undue and unauthorized exercise
of the police power of the State. But whatever may be the basis of his
contention, we are of opinion, appropriating, with necessary modifications
understood, the language of that great jurist, Chief Justice Shaw (in the case
of Com. vs. Tewksbury, 11 Met., 55, where the question involved was the
constitutionality of a statute prohibiting and penalizing the taking or carrying
away by any person, including the owner, of any stones, gravel, or sand,
from any of the beaches in the town of Chesea,) that the law in question "is
not a taking of the property for public use, within the meaning of the
constitution, but is a just and legitimate exercise of the power of the
legislature to regulate and restrain such particular use of the property as
would be inconsistent with or injurious to the rights of the public. All property
is acquired and held under the tacit condition that it shall not be so used as
to injure the equal rights of others or greatly impair the public rights and
interest of the community."
It may be conceded that the benificial use and exclusive enjoyment of the
property of all carabao owners in these Islands is to a greater or less degree
interfered with by the provisions of the statute; and that, without inquiring
what quantum of interest thus passes from the owners of such cattle, it is an
interest the deprivation of which detracts from their right and authority, and
in some degree interferes with their exclusive possession and control of their
property, so that if the regulations in question were enacted for purely
private purpose, the statute, in so far as these regulations are concerned,
would be a violation of the provisions of the Philippine Bill relied on be
appellant; but we are satisfied that it is not such a taking, such an
interference with the right and title of the owners, as is involved in the
exercise by the State of the right of eminent domain, so as to entitle these
owners to compensation, and that it is no more than "a just restrain of an
injurious private use of the property, which the legislature had authority to
impose."

In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid
down in Com. vs. Tewksbury (supra) was reviewed and affirmed, the same
eminent jurist who wrote the former opinion, in distinguishing the exercise of
the right of eminent domain from the exercise of the sovereign police powers
of the State, said:
We think it is settled principle, growing out of the nature of wellordered civil society, that every holder of property, however absolute
and unqualified may be his title, holds it under the implied liability that
his use of it may be so regulated that is shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the rights of the community. . . . Rights
of property, like all other social and conventional rights, are subject to
such reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restrain and regulations
establish by law, as the legislature, under the governing and
controlling power vested in them by the constitution, may think
necessary and expedient.
This is very different from the right of eminent domain, the right of a
government to take and appropriate private property to public use,
whenever the public exigency requires it; which can be done only on
condition of providing a reasonable compensation therefor. The power
we allude to is rather the police power, the power vested in the
legislature by the constitution, to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes, and ordinances,
either with penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the commonwealth,
and of the subjects of the same.
It is much easier to perceive and realize the existence and sources of
this power than to mark its boundaries or prescribe limits to its
exercise.
Applying these principles, we are opinion that the restrain placed by the law
on the slaughter for human consumption of carabaos fit for agricultural work
and draft purpose is not an appropriation of property interests to a "public
use," and is not, therefore, within the principle of the exercise by the State of
the right of eminent domain. It is fact a mere restriction or limitation upon a
private use, which the legislature deemed to be determental to the public
welfare. And we think that an examination of the general provisions of the
statute in relation to the public interest which it seeks to safeguard and the
public necessities for which it provides, leaves no room for doubt that the

limitations and restraints imposed upon the exercise of rights of ownership


by the particular provisions of the statute under consideration were imposed
not for private purposes but, strictly, in the promotion of the "general
welfare" and "the public interest" in the exercise of the sovereign police
power which every State possesses for the general public welfare and which
"reaches to every species of property within the commonwealth."
For several years prior to the enactment of the statute a virulent contagious
or infectious disease had threatened the total extinction of carabaos in these
Islands, in many sections sweeping away seventy, eighty, and in some cases
as much as ninety and even one hundred per cent of these animals.
Agriculture being the principal occupation of the people, and the carabao
being the work animal almost exclusively in use in the fields as well as for
draft purposes, the ravages of the disease with which they were infected
struck an almost vital blow at the material welfare of the country. large areas
of productive land lay waste for years, and the production of rice, the staple
food of the inhabitants of the Islands, fell off to such an extent that the
impoverished people were compelled to spend many millions of pesos in its
importation, notwithstanding the fact that with sufficient work animals to
cultivate the fields the arable rice lands of the country could easily be made
to produce a supply more that sufficient for its own needs. The drain upon
the resources of the Islands was such that famine soon began to make itself
felt, hope sank in the breast of the people, and in many provinces the
energies of the breadwinners seemed to be paralyzed by the apparently
hopeless struggle for existence with which they were confronted.
To meet these conditions, large sums of money were expended by the
Government in relieving the immediate needs of the starving people, three
millions of dollars were voted by the Congress of the United States as a relief
or famine fund, public works were undertaken to furnish employment in the
provinces where the need was most pressing, and every effort made to
alleviate the suffering incident to the widespread failure of the crops
throughout the Islands, due in large measure to the lack of animals fit for
agricultural work and draft purposes.
Such measures, however, could only temporarily relieve the situation,
because in an agricultural community material progress and permanent
prosperity could hardly be hoped for in the absence of the work animals
upon which such a community must necessarily rely for the cultivation of the
fields and the transportation of the products of the fields to market.
Accordingly efforts were made by the Government to increase the supply of
these animals by importation, but, as appears from the official reports on this
subject, hope for the future depended largely on the conservation of those

animals which had been spared from the ravages of the diseased, and their
redistribution throughout the Islands where the need for them was greatest.
At large expense, the services of experts were employed, with a view to the
discovery and applications of preventive and curative remedies, and it is
hoped that these measures have proved in some degree successful in
protecting the present inadequate supply of large cattle, and that the
gradual increase and redistribution of these animals throughout the
Archipelago, in response to the operation of the laws of supply and demand,
will ultimately results in practically relieving those sections which suffered
most by the loss of their work animals.
As was to be expected under such conditions, the price of carabaos rapidly
increase from the three to five fold or more, and it may fairly be presumed
that even if the conservative measures now adopted prove entirely
successful, the scant supply will keep the price of these animals at a high
figure until the natural increase shall have more nearly equalized the supply
to the demand.
Coincident with and probably intimately connected with this sudden rise in
the price of cattle, the crime of cattle stealing became extremely prevalent
throughout the Islands, necessitating the enactment of a special law
penalizing with the severest penalties the theft of carabaos and other
personal property by roving bands; and it must be assumed from the
legislative authority found that the general welfare of the Islands
necessitated the enactment of special and somewhat burdensome provisions
for the branding and registration of large cattle, and supervision and
restriction of their slaughter for food. It will hardly be questioned that the
provisions of the statute touching the branding and registration of such
cattle, and prohibiting and penalizing the slaughter of diseased cattle for
food were enacted in the due and proper exercise of the police power of the
State; and we are of opinion that, under all the circumstances, the provision
of the statute prohibiting and penalizing the slaughter for human
consumption of carabaos fit for work were in like manner enacted in the due
and proper exercise of that power, justified by the exigent necessities of
existing conditions, and the right of the State to protect itself against the
overwhelming disaster incident to the further reduction of the supply of
animals fit for agricultural work or draft purposes.
It is, we think, a fact of common knowledge in these Islands, and disclosed
by the official reports and records of the administrative and legislative
departments of the Government, that not merely the material welfare and
future prosperity of this agricultural community were threatened by the

ravages of the disease which swept away the work animals during the years
prior to the enactment of the law under consideration, but that the very life
and existence of the inhabitants of these Islands as a civilized people would
be more or less imperiled by the continued destruction of large cattle by
disease or otherwise. Confronted by such conditions, there can be no doubt
of the right of the Legislature to adopt reasonable measures for the
preservation of work animals, even to the extent of prohibiting and
penalizing what would, under ordinary conditions, be a perfectly legitimate
and proper exercise of rights of ownership and control of the private property
of the citizen. The police power rests upon necessity and the right of selfprotection and if ever the invasion of private property by police regulation
can be justified, we think that the reasonable restriction placed upon the use
of carabaos by the provision of the law under discussion must be held to be
authorized as a reasonable and proper exercise of that power.
As stated by Mr. Justice Brown in his opinion in the case of Lawton vs.
Steele (152 U.S., 133, 136):
The extent and limits of what is known as the police power have been
a fruitful subject of discussion in the appellate courts of nearly every
State in the Union. It is universally conceded to include everything
essential to the public safely, health, and morals, and to justify the
destruction or abatement, by summary proceedings, of whatever may
be regarded as a public nuisance. Under this power it has been held
that the State may order the destruction of a house falling to decay or
otherwise endangering the lives of passers-by; the demolition of such
as are in the path of a conflagration; the slaughter of diseased cattle;
the destruction of decayed or unwholesome food; the prohibition of
wooden buildings in cities; the regulation of railways and other means
of public conveyance, and of interments in burial grounds; the
restriction of objectionable trades to certain localities; the compulsary
vaccination of children; the confinement of the insane or those afficted
with contagious deceases; the restraint of vagrants, beggars, and
habitual drunkards; the suppression of obscene publications and
houses of ill fame; and the prohibition of gambling houses and places
where intoxicating liquors are sold. Beyond this, however, the State
may interfere wherever the public interests demand it, and in this
particular a large discretion is necessarily vested in the legislature to
determine, not only what the interests of the public require, but what
measures are necessary for the protection of such interests.
(Barbier vs. Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To
justify the State in thus interposing its authority in behalf of the public,
it must appear, first, that the interests of the public generally, as

distinguished from those of a particular class, require such


interference; and, second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon
individuals. The legislature may not, under the guise of protecting the
public interests, arbitrarily interfere with private business, or impose
unusual and unnecessary restrictions upon lawful occupations. In other
words, its determination as to what is a proper exercise of its police
powers is not final or conclusive, but is subject to the supervision of
the court.
From what has been said, we think it is clear that the enactment of the
provisions of the statute under consideration was required by "the interests
of the public generally, as distinguished from those of a particular class;" and
that the prohibition of the slaughter of carabaos for human consumption, so
long as these animals are fit for agricultural work or draft purposes was a
"reasonably necessary" limitation on private ownership, to protect the
community from the loss of the services of such animals by their slaughter
by improvident owners, tempted either by greed of momentary gain, or by a
desire to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and dangerously
affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt.,
140), said (p. 149) that by this "general police power of the State, persons
and property are subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the State; of the
perfect right in the legislature to do which no question ever was, or, upon
acknowledge and general principles, ever can be made, so far as natural
persons are concerned."
And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:
It would be quite impossible to enumerate all the instances in which
the police power is or may be exercised, because the various cases in
which the exercise by one individual of his rights may conflict with a
similar exercise by others, or may be detrimental to the public order or
safety, are infinite in number and in variety. And there are other cases
where it becomes necessary for the public authorities to interfere with
the control by individuals of their property, and even to destroy it,
where the owners themselves have fully observed all their duties to
their fellows and to the State, but where, nevertheless, some
controlling public necessity demands the interference or destruction. A
strong instance of this description is where it becomes necessary to

take, use, or destroy the private property of individuals to prevent the


spreading of a fire, the ravages of a pestilence, the advance of a
hostile army, or any other great public calamity. Here the individual is
in no degree in fault, but his interest must yield to that "necessity"
which "knows no law." The establishment of limits within the denser
portions of cities and villages within which buildings constructed of
inflammable materials shall not be erected or repaired may also, in
some cases, be equivalent to a destruction of private property; but
regulations for this purpose have been sustained notwithstanding this
result. Wharf lines may also be established for the general good, even
though they prevent the owners of water-fronts from building out on
soil which constitutes private property. And, whenever the legislature
deem it necessary to the protection of a harbor to forbid the removal of
stones, gravel, or sand from the beach, they may establish regulations
to that effect under penalties, and make them applicable to the owners
of the soil equally with other persons. Such regulations are only "a just
restraint of an injurious use of property, which the legislature have
authority" to impose.
So a particular use of property may sometimes be forbidden, where, by
a change of circumstances, and without the fault of the power, that
which was once lawful, proper, and unobjectionable has now become a
public nuisance, endangering the public health or the public safety.
Milldams are sometimes destroyed upon this grounds; and churchyards
which prove, in the advance of urban population, to be detrimental to
the public health, or in danger of becoming so, are liable to be closed
against further use for cemetery purposes.
These citations from some of the highest judicial and text-book authorities in
the United States clearly indicate the wide scope and extent which has there
been given to the doctrine us in our opinion that the provision of the statute
in question being a proper exercise of that power is not in violation of the
terms of section 5 of the Philippine Bill, which provide that "no law shall be
enacted which shall deprive any person of life, liberty, or property without
due process of law," a provision which itself is adopted from the Constitution
of the United States, and is found in substance in the constitution of most if
not all of the States of the Union.
The judgment of conviction and the sentence imposed by the trial court
should be affirmed with the costs of this instance against the appellant. So
ordered.
G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,


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

CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to
Alcibiades "Strike but hear me first!" It is this cry that the petitioner in
effect repeats here as he challenges the constitutionality of Executive Order
No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive
Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against interprovincial movement of carabaos by transporting carabeef
instead; and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such
that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported from

one province to another. The carabao or carabeef transported in


violation of this Executive Order as amended shall be subject to
confiscation and forfeiture by the government, to be distributed
to charitable institutions and other similar institutions as the
Chairman of the National Meat Inspection Commission may ay
see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the
case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year
of Our Lord, nineteen hundred and eighty.
(SGD.)
FERDINAND E.
MARCOS
Presi
dent
Republic of the
Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to
Iloilo on January 13, 1984, when they were confiscated by the police station
commander of Barotac Nuevo, Iloilo, for violation of the above
measure. 1 The petitioner sued for recovery, and the Regional Trial Court of
Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of
P12,000.00. After considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raise by the petitioner, for lack of
authority and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court,* 3 which upheld the trial court, ** and he has now come before us in
this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional
insofar as it authorizes outright confiscation of the carabao or carabeef being
transported across provincial boundaries. His claim is that the penalty is
invalid because it is imposed without according the owner a right to be heard

before a competent and impartial court as guaranteed by due process. He


complains that the measure should not have been presumed, and so
sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment
No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v.
Angeles 5 is not applicable here. The question raised there was the necessity
of the previous publication of the measure in the Official Gazette before it
could be considered enforceable. We imposed the requirement then on the
basis of due process of law. In doing so, however, this Court did not, as
contended by the Solicitor General, impliedly affirm the constitutionality of
Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to
review by the highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal or certiorari, as the
law or rules of court may provide," final judgments and orders of lower courts
in, among others, all cases involving the constitutionality of certain
measures. 7 This simply means that the resolution of such cases may be
made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be rebutted.
Indeed, if there be a clear showing of their invalidity, and of the need to
declare them so, then "will be the time to make the hammer fall, and
heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise,
courts should not follow the path of least resistance by simply presuming the
constitutionality of a law when it is questioned. On the contrary, they should
probe the issue more deeply, to relieve the abscess, paraphrasing another
distinguished jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there
should be no shirking of the task for fear of retaliation, or loss of favor, or
popular censure, or any other similar inhibition unworthy of the bench,
especially this Court.
The challenged measure is denominated an executive order but it is really
presidential decree, promulgating a new rule instead of merely implementing
an existing law. It was issued by President Marcos not for the purpose of
taking care that the laws were faithfully executed but in the exercise of his

legislative authority under Amendment No. 6. It was provided thereunder


that whenever in his judgment there existed a grave emergency or a threat
or imminence thereof or whenever the legislature failed or was unable to act
adequately on any matter that in his judgment required immediate action, he
could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no
showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the
executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase
that will lead to protracted discussion not really necessary at this time, we
reserve resolution of this matter until a more appropriate occasion. For the
nonce, we confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the provisions of the charter
be cast in precise and unmistakable language to avoid controversies that
might arise on their correct interpretation. That is the Ideal. In the case of
the due process clause, however, this rule was deliberately not followed and
the wording was purposely kept ambiguous. In fact, a proposal to delineate it
more clearly was submitted in the Constitutional Convention of 1934, but it
was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the
Bill of Rights, who forcefully argued against it. He was sustained by the
body. 10
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not,
like some provisions of the fundamental law, an "iron rule" laying down an
implacable and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very elasticity of the
due process clause was meant to make it adapt easily to every situation,
enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket
that will deprive them of the elbow room they may need to vary the meaning
of the clause whenever indicated. Instead, they have preferred to leave the
import of the protection open-ended, as it were, to be "gradually ascertained
by the process of inclusion and exclusion in the course of the decision of
cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
Court, for example, would go no farther than to define due process and in

so doing sums it all up as nothing more and nothing less than "the
embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed against the
life liberty or property of any of its subjects except by the lawful judgment of
his peers or the law of the land, they thereby won for themselves and their
progeny that splendid guaranty of fairness that is now the hallmark of the
free society. The solemn vow that King John made at Runnymede in 1215 has
since then resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the stern visage
of the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting
Idea of fair play to hear "the other side" before an opinion is formed or a
decision is made by those who sit in judgment. Obviously, one side is only
one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the
issues in contention. It is indispensable that the two sides complement each
other, as unto the bow the arrow, in leading to the correct ruling after
examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext
that a hearing is unnecessary or useless, is tainted with the vice of bias or
intolerance or ignorance, or worst of all, in repressive regimes, the insolence
of power.
The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as
a safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications
of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person,
faced by the awesome power of the State, is entitled to "the law of the land,"
which Daniel Webster described almost two hundred years ago in the famous
Dartmouth College Case, 14 as "the law which hears before it condemns,
which proceeds upon inquiry and renders judgment only after trial." It has to
be so if the rights of every person are to be secured beyond the reach of
officials who, out of mistaken zeal or plain arrogance, would degrade the due
process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to
be sure, there are a number of admitted exceptions. The conclusive
presumption, for example, bars the admission of contrary evidence as long

as such presumption is based on human experience or there is a rational


connection between the fact proved and the fact ultimately presumed
therefrom. 15 There are instances when the need for expeditions action will
justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and lives of the
people. Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The passport of a
person sought for a criminal offense may be cancelled without hearing, to
compel his return to the country he has fled. 16Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses
to protect the public morals. 17 In such instances, previous judicial hearing
may be omitted without violation of due process in view of the nature of the
property involved or the urgency of the need to protect the general welfare
from a clear and present danger.
The protection of the general welfare is the particular function of the police
power which both restraints and is restrained by due process. The police
power is simply defined as the power inherent in the State to regulate liberty
and property for the promotion of the general welfare. 18 By reason of its
function, it extends to all the great public needs and is described as the most
pervasive, the least limitable and the most demanding of the three inherent
powers of the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police power, which
affects him even before he is born and follows him still after he is dead
from the womb to beyond the tomb in practically everything he does or
owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance
to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit
of the greater number.
It is this power that is now invoked by the government to justify Executive
Order No. 626-A, amending the basic rule in Executive Order No. 626,
prohibiting the slaughter of carabaos except under certain conditions. The
original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a measure. In
the face of the worsening energy crisis and the increased dependence of our

farms on these traditional beasts of burden, the government would have


been remiss, indeed, if it had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a
law regulating the registration, branding and slaughter of large cattle was
claimed to be a deprivation of property without due process of law. The
defendant had been convicted thereunder for having slaughtered his own
carabao without the required permit, and he appealed to the Supreme Court.
The conviction was affirmed. The law was sustained as a valid police
measure to prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these animals
and the reduction of their number had resulted in an acute decline in
agricultural output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the consequent
increase in their price, cattle-rustling had spread alarmingly, necessitating
more effective measures for the registration and branding of these animals.
The Court held that the questioned statute was a valid exercise of the police
power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class,
require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive upon individuals. ...
From what has been said, we think it is clear that the enactment
of the provisions of the statute under consideration was required
by "the interests of the public generally, as distinguished from
those of a particular class" and that the prohibition of the
slaughter of carabaos for human consumption, so long as these
animals are fit for agricultural work or draft purposes was a
"reasonably necessary" limitation on private ownership, to
protect the community from the loss of the services of such
animals by their slaughter by improvident owners, tempted
either by greed of momentary gain, or by a desire to enjoy the
luxury of animal food, even when by so doing the productive
power of the community may be measurably and dangerously
affected.
In the light of the tests mentioned above, we hold with the Toribio Case that
the carabao, as the poor man's tractor, so to speak, has a direct relevance to
the public welfare and so is a lawful subject of Executive Order No. 626. The

method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals,
again following the above-cited doctrine. There is no doubt that by banning
the slaughter of these animals except where they are at least seven years
old if male and eleven years old if female upon issuance of the necessary
permit, the executive order will be conserving those still fit for farm work or
breeding and preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful
subject as the original executive order, we cannot say with equal certainty
that it complies with the second requirement, viz., that there be a lawful
method. We note that to strengthen the original measure, Executive Order
No. 626-A imposes an absolute ban not on theslaughter of the carabaos but
on their movement, providing that "no carabao regardless of age, sex,
physical condition or purpose (sic) and no carabeef shall be transported from
one province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of
carabaos can prevent their indiscriminate slaughter, considering that they
can be killed anywhere, with no less difficulty in one province than in
another. Obviously, retaining the carabaos in one province will not prevent
their slaughter there, any more than moving them to another province will
make it easier to kill them there. As for the carabeef, the prohibition is made
to apply to it as otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either to
prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of
the carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was
sustained because the penalty prescribed was fine and imprisonment, to be
imposed by the court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed, and the
property being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police
station commander, were returned to the petitioner only after he had filed a
complaint for recovery and given a supersedeas bond of P12,000.00, which
was ordered confiscated upon his failure to produce the carabaos when
ordered by the trial court. The executive order defined the prohibition,
convicted the petitioner and immediately imposed punishment, which was
carried out forthright. The measure struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and
hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process. It is also
conceded that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial only. 20 In
the exceptional cases accepted, however. there is a justification for the
omission of the right to a previous hearing, to wit, the immediacy of the
problem sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for
the petitioner's peremptory treatment. The properties involved were not
even inimical per se as to require their instant destruction. There certainly
was no reason why the offense prohibited by the executive order should not
have been proved first in a court of justice, with the accused being accorded
all the rights safeguarded to him under the Constitution. Considering that, as
we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in
nature, the violation thereof should have been pronounced not by the police
only but by a court of justice, which alone would have had the authority to
impose the prescribed penalty, and only after trial and conviction of the
accused.
We also mark, on top of all this, the questionable manner of the disposition
of the confiscated property as prescribed in the questioned executive order.
It is there authorized that the seized property shall "be distributed to
charitable institutions and other similar institutions as the Chairman of the
National Meat Inspection Commissionmay see fit, in the case of carabeef,
and to deserving farmers through dispersal as the Director of Animal
Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The
phrase "may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and abuse,
and even corruption. One searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations that the said officers
must observe when they make their distribution. There is none. Their options

are apparently boundless. Who shall be the fortunate beneficiaries of their


generosity and by what criteria shall they be chosen? Only the officers
named can supply the answer, they and they alone may choose the grantee
as they see fit, and in their own exclusive discretion. Definitely, there is here
a "roving commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of
the police power because the method employed to conserve the carabaos is
not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities
of the power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the doctrine of
separation of powers. There is, finally, also an invalid delegation of legislative
powers to the officers mentioned therein who are granted unlimited
discretion in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable in
damages for enforcing the executive order in accordance with its mandate.
The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him,
being a mere subordinate of the President, to declare the executive order
unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they
had the competence, for all their superior authority, to question the order we
now annul.
The Court notes that if the petitioner had not seen fit to assert and protect
his rights as he saw them, this case would never have reached us and the
taking of his property under the challenged measure would have become
afait accompli despite its invalidity. We commend him for his spirit. Without
the present challenge, the matter would have ended in that pump boat in
Masbate and another violation of the Constitution, for all its obviousness,
would have been perpetrated, allowed without protest, and soon forgotten in
the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the
courage of the people to invoke them whenever they are ignored or violated.

Rights are but weapons on the wall if, like expensive tapestry, all they do is
embellish and impress. Rights, as weapons, must be a promise of protection.
They become truly meaningful, and fulfill the role assigned to them in the
free society, if they are kept bright and sharp with use by those who are not
afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.
Except as affirmed above, the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount thereof is ordered
restored to the petitioner. No costs.
SO ORDERED.
G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC.,


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

characterized as legitimate businesses duly licensed by both national and


city authorities, regularly paying taxes, employing and giving livelihood to
not less than 2,500 person and representing an investment of more than P3
million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal
Board of the City of Manila enacted Ordinance No. 4760, approved on June
14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time
acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in
detail. There was the assertion of its being beyond the powers of the
Municipal Board of the City of Manila to enact insofar as it would regulate
motels, on the ground that in the revised charter of the City of Manila or in
any other law, no reference is made to motels; that Section 1 of the
challenged ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose P6,000.00 fee per
annum for first class motels and P4,500.00 for second class motels; that the
provision in the same section which would require the owner, manager,
keeper or duly authorized representative of a hotel, motel, or lodging house
to refrain from entertaining or accepting any guest or customer or letting any
room or other quarter to any person or persons without his filling up the
prescribed form in a lobby open to public view at all times and in his
presence, wherein the surname, given name and middle name, the date of
birth, the address, the occupation, the sex, the nationality, the length of stay
and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished as to his
residence certificate as well as his passport number, if any, coupled with a
certification that a person signing such form has personally filled it up and
affixed his signature in the presence of such owner, manager, keeper or duly
authorized representative, with such registration forms and records kept and
bound together, it also being provided that the premises and facilities of
such hotels, motels and lodging houses would be open for inspection either
by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds,
not only for being arbitrary, unreasonable or oppressive but also for being
vague, indefinite and uncertain, and likewise for the alleged invasion of the
right to privacy and the guaranty against self-incrimination; that Section 2 of
the challenged ordinance classifying motels into two classes and requiring
the maintenance of certain minimum facilities in first class motels such as a
telephone in each room, a dining room or, restaurant and laundry similarly
offends against the due process clause for being arbitrary, unreasonable and
oppressive, a conclusion which applies to the portion of the ordinance
requiring second class motels to have a dining room; that the provision of
Section 2 of the challenged ordinance prohibiting a person less than 18 years

old from being accepted in such hotels, motels, lodging houses, tavern or
common inn unless accompanied by parents or a lawful guardian and making
it unlawful for the owner, manager, keeper or duly authorized representative
of such establishments to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process guaranty for lack of
certainty and for its unreasonable, arbitrary and oppressive character; and
that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party, in effect causing the
destruction of the business and loss of its investments, there is once again a
transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final
judgment declaring the above ordinance null and void and unenforceable.
The lower court on July 6, 1963 issued a writ of preliminary injunction
ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760
from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the
personal circumstances regarding the respondent Mayor and of the fact that
petitioners are licensed to engage in the hotel or motel business in the City
of Manila, of the provisions of the cited Ordinance but a denial of its alleged
nullity, whether on statutory or constitutional grounds. After setting forth
that the petition did fail to state a cause of action and that the challenged
ordinance bears a reasonable relation, to a proper purpose, which is to curb
immorality, a valid and proper exercise of the police power and that only the
guests or customers not before the court could complain of the alleged
invasion of the right to privacy and the guaranty against self incrimination,
with the assertion that the issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor prayed for, its dissolution and
the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a
stipulation of facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators
Association, Inc. and Hotel del Mar Inc. are duly organized and existing
under the laws of the Philippines, both with offices in the City of Manila,
while the petitioner Go Chin is the president and general manager of
Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of
Baguio City, all having the capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City
Mayor and chief executive of the City of Manila charged with the
general power and duty to enforce ordinances of the City of Manila and
to give the necessary orders for the faithful execution and enforcement
of such ordinances;
3. That the petitioners are duly licensed to engage in the business of
operating hotels and motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila
enacted Ordinance No. 4760, which was approved on June 14, 1963, by
Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in
the absence of the respondent regular City Mayor, amending sections
661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of
the City of Manila besides inserting therein three new sections. This
ordinance is similar to the one vetoed by the respondent Mayor (Annex
A) for the reasons stated in its 4th Indorsement dated February 15,
1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio
Astorga was submitted with the proposed ordinance (now Ordinance
4760) to the Municipal Board, copy of which is attached hereto as
Annex C;
6. That the City of Manila derived in 1963 an annual income of
P101,904.05 from license fees paid by the 105 hotels and motels
(including herein petitioners) operating in the City of
Manila.1wph1.t
Thereafter came a memorandum for respondent on January 22, 1965,
wherein stress was laid on the presumption of the validity of the challenged
ordinance, the burden of showing its lack of conformity to the Constitution
resting on the party who assails it, citing not only U.S. v. Salaveria, but
likewise applicable American authorities. Such a memorandum likewise
refuted point by point the arguments advanced by petitioners against its
validity. Then barely two weeks later, on February 4, 1965, the memorandum
for petitioners was filed reiterating in detail what was set forth in the
petition, with citations of what they considered to be applicable American
authorities and praying for a judgment declaring the challenged ordinance
"null and void and unenforceable" and making permanent the writ of
preliminary injunction issued.

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

specific method of regulation prescribed is unreasonable and hence deprives


the plaintiff of due process of law. As underlying questions of fact may
condition the constitutionality of legislation of this character, the resumption
of constitutionality must prevail in the absence of some factual foundation of
record for overthrowing the statute." No such factual foundation being laid in
the present case, the lower court deciding the matter on the pleadings and
the stipulation of facts, the presumption of validity must prevail and the
judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is
fatally defective as being repugnant to the due process clause of the
Constitution. The mantle of protection associated with the due process
guaranty does not cover petitioners. This particular manifestation of a police
power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and
unsupported by anything of substance. To hold otherwise would be to unduly
restrict and narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least limitable of
powers,4extending as it does "to all the great public needs."5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the
state if it could be deprived or allowed itself to be deprived of its competence
to promote public health, public morals, public safety and the genera
welfare.6 Negatively put, police power is "that inherent and plenary power in
the State which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted
to minimize certain practices hurtful to public morals. The explanatory note
of the Councilor Herminio Astorga included as annex to the stipulation of
facts, speaks of the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to the existence of motels, which
"provide a necessary atmosphere for clandestine entry, presence and exit"
and thus become the "ideal haven for prostitutes and thrill-seekers." The
challenged ordinance then proposes to check the clandestine harboring of
transients and guests of these establishments by requiring these transients
and guests to fill up a registration form, prepared for the purpose, in a lobby
open to public view at all times, and by introducing several other
amendatory provisions calculated to shatter the privacy that characterizes
the registration of transients and guests." Moreover, the increase in the
licensed fees was intended to discourage "establishments of the kind from
operating for purpose other than legal" and at the same time, to increase
"the income of the city government." It would appear therefore that the

stipulation of facts, far from sustaining any attack against the validity of the
ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal
of its approval, ordinances punishing vagrancy and classifying a pimp or
procurer as a vagrant;8 provide a license tax for and regulating the
maintenance or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of
panguingui on days other than Sundays or legal holidays;13 prohibiting the
operation of pinball machines;14 and prohibiting any person from keeping,
conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public
morals.
On the legislative organs of the government, whether national or local,
primarily rest the exercise of the police power, which, it cannot be too often
emphasized, is the power to prescribe regulations to promote the health,
morals, peace, good order, safety and general welfare of the people. In view
of the requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police power insofar
as it may affect the life, liberty or property of any person is subject to judicial
inquiry. Where such exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due process or a
violation of any other applicable constitutional guaranty may call for
correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the
objection is raised to the question of due process.16 There is no controlling
and precise definition of due process. It furnishes though a standard to which
the governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a
substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal infirmity sufficient to spell
its doom? It is responsiveness to the supremacy of reason, obedience to the
dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of reason and result in
sheer oppression. Due process is thus hostile to any official action marred by
lack of reasonableness. Correctly it has been identified as freedom from
arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts
fealty "to those strivings for justice" and judges the act of officialdom of
whatever branch "in the light of reason drawn from considerations of fairness

that reflect [democratic] traditions of legal and political thought."18 It is not a


narrow or "technical conception with fixed content unrelated to time, place
and circumstances,"19 decisions based on such a clause requiring a "close
and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or
pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted
precisely to meet what a municipal lawmaking body considers an evil of
rather serious proportion an arbitrary and capricious exercise of authority. It
would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be more specific, the
Municipal Board of the City of Manila felt the need for a remedial measure. It
provided it with the enactment of the challenged ordinance. A strong case
must be found in the records, and, as has been set forth, none is even
attempted here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process requirement. Nor does it
lend any semblance even of deceptive plausibility to petitioners' indictment
of Ordinance No. 4760 on due process grounds to single out such features as
the increased fees for motels and hotels, the curtailment of the area of
freedom to contract, and, in certain particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided
for by the challenged ordinance for hotels and motels, 150% for the former
and over 200% for the latter, first-class motels being required to pay a
P6,000 annual fee and second-class motels, P4,500 yearly. It has been the
settled law however, as far back as 1922 that municipal license fees could be
classified into those imposed for regulating occupations or regular
enterprises, for the regulation or restriction of non-useful occupations or
enterprises and for revenue purposes only.22 As was explained more in detail
in the above Cu Unjieng case: (2) Licenses for non-useful occupations are
also incidental to the police power and the right to exact a fee may be
implied from the power to license and regulate, but in fixing amount of the
license fees the municipal corporations are allowed a much wider discretion
in this class of cases than in the former, and aside from applying the wellknown legal principle that municipal ordinances must not be unreasonable,
oppressive, or tyrannical, courts have, as a general rule, declined to interfere
with such discretion. The desirability of imposing restraint upon the number
of persons who might otherwise engage in non-useful enterprises is, of
course, generally an important factor in the determination of the amount of
this kind of license fee. Hence license fees clearly in the nature of privilege
taxes for revenue have frequently been upheld, especially in of licenses for

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

of conduct amounts to curtailment of liberty which as pointed out by Justice


Malcolm cannot be absolute. Thus: "One thought which runs through all
these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as
understood in democracies, is not license; it is 'liberty regulated by law.'
Implied in the term is restraint by law for the good of the individual and for
the greater good of the peace and order of society and the general wellbeing. No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good x x x The liberty of
the citizen may be restrained in the interest of the public health, or of the
public order and safety, or otherwise within the proper scope of the police
power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies
at the bottom of the enactment of said law, and the state in order to promote
the general welfare may interfere with personal liberty, with property, and
with business and occupations. Persons and property may be subjected to all
kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our
Government the rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty
and authority in his mind through education and personal discipline, so that
there may be established the resultant equilibrium, which means peace and
order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation
because of undue deprivation of freedom to contract, People v. Pomar,30 no
longer "retains its virtuality as a living principle. The policy of laissez
faire has to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved
were freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the liberty
curtailed affects at the most rights of property, the permissible scope of
regulatory measure is wider.32 How justify then the allegation of a denial of
due process?
Lastly, there is the attempt to impugn the ordinance on another due process
ground by invoking the principles of vagueness or uncertainty. It would
appear from a recital in the petition itself that what seems to be the

gravamen of the alleged grievance is that the provisions are too detailed and
specific rather than vague or uncertain. Petitioners, however, point to the
requirement that a guest should give the name, relationship, age and sex of
the companion or companions as indefinite and uncertain in view of the
necessity for determining whether the companion or companions referred to
are those arriving with the customer or guest at the time of the registry or
entering the room With him at about the same time or coming at any
indefinite time later to join him; a proviso in one of its sections which cast
doubt as to whether the maintenance of a restaurant in a motel is dependent
upon the discretion of its owners or operators; another proviso which from
their standpoint would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof means a full day's or
merely a half-day's rate. It may be asked, do these allegations suffice to
render the ordinance void on its face for alleged vagueness or uncertainty?
To ask the question is to answer it. From Connally v. General Construction
Co.33 toAdderley v. Florida,34 the principle has been consistently upheld that
what makes a statute susceptible to such a charge is an enactment either
forbidding or requiring the doing of an act that men of common intelligence
must necessarily guess at its meaning and differ as to its application. Is this
the situation before us? A citation from Justice Holmes would prove
illuminating: "We agree to all the generalities about not supplying criminal
laws with what they omit but there is no canon against using common sense
in construing laws as saying what they obviously mean."35
That is all then that this case presents. As it stands, with all due allowance
for the arguments pressed with such vigor and determination, the attack
against the validity of the challenged ordinance cannot be considered a
success. Far from it. Respect for constitutional law principles so uniformly
held and so uninterruptedly adhered to by this Court compels a reversal of
the appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction
issued lifted forthwith. With costs.
G.R. No. L-31195 June 5, 1973
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION,
NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS
MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA,
BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter
referred to as PBMEO) is a legitimate labor union composed of the employees
of the respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor
Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers
and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass
demonstration at Malacaang on March 4, 1969, in protest against alleged
abuses of the Pasig police, to be participated in by the workers in the first
shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third
shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that
they informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin
M. Salvador of the respondent Court reproduced the following stipulation of
facts of the parties parties
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated
by the first shift (6:00 AM-2:00 PM) workers as well as those
working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM
to 5:00 PM) in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969
at about 11:00 A.M. at the Company's canteen, and those
present were: for the Company: (1) Mr. Arthur L. Ang (2) Atty. S.
de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and (6)
Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny
said projected mass demonstration at Malacaang on March 4,

1969. PBMEO thru Benjamin Pagcu who acted as spokesman of


the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled
because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with
the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an
inalienable right of the union guaranteed by the Constitution but
emphasized, however, that any demonstration for that matter
should not unduly prejudice the normal operation of the
Company. For which reason, the Company, thru Atty. C.S. de Leon
warned the PBMEO representatives that workers who belong to
the first and regular shifts, who without previous leave of
absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall
be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting
was convoked Company represented by Atty. C.S. de Leon, Jr. The
Union panel was composed of: Nicanor Tolentino, Rodolfo
Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and
appealed to the PBMEO representatives that while all workers
may join the Malacaang demonstration, the workers for the first
and regular shift of March 4, 1969 should be excused from joining
the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the
provisions of the CBA, particularly Article XXIV: NO LOCKOUT
NO STRIKE'. All those who will not follow this warning of the
Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans
inasmuch as the Malacaang demonstration will be held the
following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March

4, 1969, the contents of which are as follows: 'REITERATING


REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 4243, rec.)
Because the petitioners and their members numbering about 400 proceeded
with the demonstration despite the pleas of the respondent Company that
the first shift workers should not be required to participate in the
demonstration and that the workers in the second and third shifts should be
utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969,
respondent Company prior notice of the mass demonstration on March 4,
1969, with the respondent Court, a charge against petitioners and other
employees who composed the first shift, charging them with a "violation of
Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15, all of
Republic Act No. 875, and of the CBA providing for 'No Strike and No
Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the
joint affidavit of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24,
rec.). Thereafter, a corresponding complaint was filed, dated April 18, 1969,
by Acting Chief Prosecutor Antonio T. Tirona and Acting Prosecutor Linda P.
Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not
violate the existing CBA because they gave the respondent Company prior
notice of the mass demonstration on March 4, 1969; that the said mass
demonstration was a valid exercise of their constitutional freedom of speech
against the alleged abuses of some Pasig policemen; and that their mass
demonstration was not a declaration of strike because it was not directed
against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the
parties, Judge Joaquin M. Salvador, in an order dated September 15, 1969,
found herein petitioner PBMEO guilty of bargaining in bad faith and herein
petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo
Munsod as directly responsible for perpetrating the said unfair labor practice
and were, as a consequence, considered to have lost their status as
employees of the respondent Company (Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the
aforesaid order (p. 11, rec.); and that they filed on September 29, 1969,
because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for
reconsideration of said order dated September 15, 1969, on the ground that
it is contrary to law and the evidence, as well as asked for ten (10) days

within which to file their arguments pursuant to Sections 15, 16 and 17 of


the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63,
rec.), respondent Company averred that herein petitioners received on
September 22, 1969, the order dated September 17 (should be September
15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22,
1969 or until September 27, 1969, within which to file their motion for
reconsideration; and that because their motion for reconsideration was two
(2) days late, it should be accordingly dismissed, invoking Bien vs.
Castillo, 1 which held among others, that a motion for extension of the fiveday period for the filing of a motion for reconsideration should be filed before
the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written
arguments dated October 11, 1969, in support of their motion for
reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the
motion for reconsideration of herein petitioners for being pro forma as it was
filed beyond the reglementary period prescribed by its Rules (Annex "J", pp.
74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 &
76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was
released on October 24, 1969 and addressed to the counsels of the parties
(pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17, as
amended, of the Rules of the Court of Industrial Relations, that a motion for
reconsideration shall be filed within five (5) days from receipt of its decision
or order and that an appeal from the decision, resolution or order of the
C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt
thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a
petition for relief from the order dated October 9, 1969, on the ground that
their failure to file their motion for reconsideration on time was due to
excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the
affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order
dated October 9, 1969, herein petitioners filed on November 3, 1969, with
the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I
There is need of briefly restating basic concepts and principles which
underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and
worth of the human personality is the central core as well as the cardinal
article of faith of our civilization. The inviolable character of man as an
individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality
and security "against the assaults of opportunism, the expediency of the
passing hour, the erosion of small encroachments, and the scorn and
derision of those who have no patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of
Rights is to withdraw "certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials, and
to establish them as legal principles to be applied by the courts. One's rights
to life, liberty and property, to free speech, or free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to a vote;
they depend on the outcome of no elections." 4 Laski proclaimed that "the
happiness of the individual, not the well-being of the State, was the criterion
by which its behaviour was to be judged. His interests, not its power, set the
limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign
people, in the rhetorical aphorism of Justice Holmes, to protect the ideas that
we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the
majority who refuse to listen. 6 And as Justice Douglas cogently stresses it,
the liberties of one are the liberties of all; and the liberties of one are not
safe unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not only
civil rights but also political rights essential to man's enjoyment of his life, to
his happiness and to his full and complete fulfillment. Thru these freedoms

the citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of
human rights over property rights is recognized. 8 Because these freedoms
are "delicate and vulnerable, as well as supremely precious in our society"
and the "threat of sanctions may deter their exercise almost as potently as
the actual application of sanctions," they "need breathing space to survive,"
permitting government regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of time,
then the Bill of Rights is a useless attempt to limit the power of government
and ceases to be an efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of oligarchs political,
economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; 10 and such
priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the
fact that a mere reasonable or rational relation between the means
employed by the law and its object or purpose that the law is neither
arbitrary nor discriminatory nor oppressive would suffice to validate a law
which restricts or impairs property rights. 12 On the other hand, a
constitutional or valid infringement of human rights requires a more stringent
criterion, namely existence of a grave and immediate danger of a
substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs.
Comelec and reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It
should be added that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like
Justices Douglas, Black and Goldberg in N.Y. Times Co. vs.
Sullivan, 14 believes that the freedoms of speech and of the press as well as
of peaceful assembly and of petition for redress of grievances are absolute
when directed against public officials or "when exercised in relation to our
right to choose the men and women by whom we shall be governed," 15 even

as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice


Vinson is partial to the improbable danger rule formulated by Chief Judge
Learned Hand, viz. whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free expression as is necessary to
avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their
"concerted act and the occurrence temporary stoppage of work," herein
petitioners are guilty bargaining in bad faith and hence violated the
collective bargaining agreement with private respondent Philippine Blooming
Mills Co., inc.. Set against and tested by foregoing principles governing a
democratic society, such conclusion cannot be sustained. The demonstration
held petitioners on March 4, 1969 before Malacaang was against alleged
abuses of some Pasig policemen, not against their employer, herein private
respondent firm, said demonstrate was purely and completely an exercise of
their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate
governmental agency, the Chief Executive, again the police officers of the
municipality of Pasig. They exercise their civil and political rights for their
mutual aid protection from what they believe were police excesses. As
matter of fact, it was the duty of herein private respondent firm to protect
herein petitioner Union and its members fro the harassment of local police
officers. It was to the interest herein private respondent firm to rally to the
defense of, and take up the cudgels for, its employees, so that they can
report to work free from harassment, vexation or peril and as consequence
perform more efficiently their respective tasks enhance its productivity as
well as profits. Herein respondent employer did not even offer to intercede
for its employees with the local police. Was it securing peace for itself at the
expenses of its workers? Was it also intimidated by the local police or did it
encourage the local police to terrorize or vex its workers? Its failure to defend
its own employees all the more weakened the position of its laborers the
alleged oppressive police who might have been all the more emboldened
thereby subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their right of
assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for
their very survival, utilizing only the weapons afforded them by the
Constitution the untrammelled enjoyment of their basic human rights. The
pretension of their employer that it would suffer loss or damage by reason of

the absence of its employees from 6 o'clock in the morning to 2 o'clock in the
afternoon, is a plea for the preservation merely of their property rights. Such
apprehended loss or damage would not spell the difference between the life
and death of the firm or its owners or its management. The employees'
pathetic situation was a stark reality abused, harassment and persecuted
as they believed they were by the peace officers of the municipality. As
above intimated, the condition in which the employees found
themselves vis-a-vis the local police of Pasig, was a matter that vitally
affected their right to individual existence as well as that of their families.
Material loss can be repaired or adequately compensated. The debasement
of the human being broken in morale and brutalized in spirit-can never be
fully evaluated in monetary terms. The wounds fester and the scars remain
to humiliate him to his dying day, even as he cries in anguish for retribution,
denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights freedom of expression,
of peaceful assembly and of petition for redress of grievances over
property rights has been sustained. 18 Emphatic reiteration of this basic tenet
as a coveted boon at once the shield and armor of the dignity and worth
of the human personality, the all-consuming ideal of our enlightened
civilization becomes Our duty, if freedom and social justice have any
meaning at all for him who toils so that capital can produce economic goods
that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in
collective bargaining and hence a violation of the collective bargaining
agreement and a cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of the collective
bargaining agreement, is "a potent means of inhibiting speech" and therefore
inflicts a moral as well as mortal wound on the constitutional guarantees of
free expression, of peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe regular working hours." The
strain construction of the Court of Industrial Relations that a stipulated
working shifts deny the workers the right to stage mass demonstration
against police abuses during working hours, constitutes a virtual tyranny
over the mind and life the workers and deserves severe condemnation.
Renunciation of the freedom should not be predicated on such a slender
ground.
The mass demonstration staged by the employees on March 4, 1969 could
not have been legally enjoined by any court, such an injunction would be

trenching upon the freedom expression of the workers, even if it legally


appears to be illegal picketing or strike. 20 The respondent Court of Industrial
Relations in the case at bar concedes that the mass demonstration was not a
declaration of a strike "as the same not rooted in any industrial dispute
although there is concerted act and the occurrence of a temporary stoppage
work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that
only the first and regular shift from 6 A.M. to 2 P.M. should report for work in
order that loss or damage to the firm will be averted. This stand failed
appreciate the sine qua non of an effective demonstration especially by a
labor union, namely the complete unity of the Union members as well as
their total presence at the demonstration site in order to generate the
maximum sympathy for the validity of their cause but also immediately
action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is
one of the aspects of freedom of expression. 21 If demonstrators are reduced
by one-third, then by that much the circulation of the issues raised by the
demonstration is diminished. The more the participants, the more persons
can be apprised of the purpose of the rally. Moreover, the absence of onethird of their members will be regarded as a substantial indication of disunity
in their ranks which will enervate their position and abet continued alleged
police persecution. At any rate, the Union notified the company two days in
advance of their projected demonstration and the company could have made
arrangements to counteract or prevent whatever losses it might sustain by
reason of the absence of its workers for one day, especially in this case when
the Union requested it to excuse only the day-shift employees who will join
the demonstration on March 4, 1969 which request the Union reiterated in
their telegram received by the company at 9:50 in the morning of March 4,
1969, the day of the mass demonstration (pp. 42-43, rec.). There was a lack
of human understanding or compassion on the part of the firm in rejecting
the request of the Union for excuse from work for the day shifts in order to
carry out its mass demonstration. And to regard as a ground for dismissal the
mass demonstration held against the Pasig police, not against the company,
is gross vindictiveness on the part of the employer, which is as unchristian as
it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because
the refusal on the part of the respondent firm to permit all its employees and
workers to join the mass demonstration against alleged police abuses and

the subsequent separation of the eight (8) petitioners from the service
constituted an unconstitutional restraint on the freedom of expression,
freedom of assembly and freedom petition for redress of grievances, the
respondent firm committed an unfair labor practice defined in Section 4(a-1)
in relation to Section 3 of Republic Act No. 875, otherwise known as the
Industrial Peace Act. Section 3 of Republic Act No. 8 guarantees to the
employees the right "to engage in concert activities for ... mutual aid or
protection"; while Section 4(a-1) regards as an unfair labor practice for an
employer interfere with, restrain or coerce employees in the exercise their
rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by
the workers of the respondent firm on March 4, 1969, was for their mutual
aid and protection against alleged police abuses, denial of which was
interference with or restraint on the right of the employees to engage in such
common action to better shield themselves against such alleged police
indignities. The insistence on the part of the respondent firm that the
workers for the morning and regular shift should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent
means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at
least equal protection as the concerted action of employees in giving
publicity to a letter complaint charging bank president with immorality,
nepotism, favoritism an discrimination in the appointment and promotion of
ban employees. 23 We further ruled in the Republic Savings Bank case, supra,
that for the employees to come within the protective mantle of Section 3 in
relation to Section 4(a-1) on Republic Act No. 875, "it is not necessary that
union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order
of respondent Court dated September 15, 1969, the company, "while
expressly acknowledging, that the demonstration is an inalienable right of
the Union guaranteed by the Constitution," nonetheless emphasized that
"any demonstration for that matter should not unduly prejudice the normal
operation of the company" and "warned the PBMEO representatives that
workers who belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly the officers present
who are the organizers of the demonstration, who shall fail to report for work
the following morning (March 4, 1969) shall be dismissed, because such
failure is a violation of the existing CBA and, therefore, would be amounting
to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal

tended to coerce the employees from joining the mass demonstration.


However, the issues that the employees raised against the local police, were
more important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen
to them was to lose a day's wage by reason of their absence from work on
the day of the demonstration. One day's pay means much to a laborer, more
especially if he has a family to support. Yet, they were willing to forego their
one-day salary hoping that their demonstration would bring about the
desired relief from police abuses. But management was adamant in refusing
to recognize the superior legitimacy of their right of free speech, free
assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to
demand from the workers proof of the truth of the alleged abuses inflicted on
them by the local police, it thereby concedes that the evidence of such
abuses should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be
referred by the President of the Philippines for proper investigation and
action with a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found
that the demonstration "paralyzed to a large extent the operations of the
complainant company," the respondent Court of Industrial Relations did not
make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss
or damage. It did not present evidence as to whether it lost expected profits
for failure to comply with purchase orders on that day; or that penalties were
exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by
reason of its failure to deliver the materials ordered; or that its own
equipment or materials or products were damaged due to absence of its
workers on March 4, 1969. On the contrary, the company saved a sizable
amount in the form of wages for its hundreds of workers, cost of fuel, water
and electric consumption that day. Such savings could have amply
compensated for unrealized profits or damages it might have sustained by
reason of the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and
assembly as well as the right to petition for redress of grievances of the
employees, the dismissal of the eight (8) leaders of the workers for
proceeding with the demonstration and consequently being absent from

work, constitutes a denial of social justice likewise assured by the


fundamental law to these lowly employees. Section 5 of Article II of the
Constitution imposes upon the State "the promotion of social justice to insure
the well-being and economic security of all of the people," which guarantee
is emphasized by the other directive in Section 6 of Article XIV of the
Constitution that "the State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State is under obligation at
all times to give meaning and substance to these constitutional guarantees
in favor of the working man; for otherwise these constitutional safeguards
would be merely a lot of "meaningless constitutional patter." Under the
Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the
policy of the law "to eliminate the causes of industrial unrest by encouraging
and protecting the exercise by employees of their right to self-organization
for the purpose of collective bargaining and for the promotion of their moral,
social and economic well-being." It is most unfortunate in the case at bar
that respondent Court of Industrial Relations, the very governmental agency
designed therefor, failed to implement this policy and failed to keep faith
with its avowed mission its raison d'etre as ordained and directed by
the Constitution.
V
It has been likewise established that a violation of a constitutional right
divests the court of jurisdiction; and as a consequence its judgment is null
and void and confers no rights. Relief from a criminal conviction secured at
the sacrifice of constitutional liberties, may be obtained through habeas
corpus proceedings even long after the finality of the judgment. Thus,
habeas corpus is the remedy to obtain the release of an individual, who is
convicted by final judgment through a forced confession, which violated his
constitutional right against self-incrimination; 25or who is denied the right to
present evidence in his defense as a deprivation of his liberty without due
process of law, 26even after the accused has already served sentence for
twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched
upon these constitutional immunities of petitioners. Both failed to accord
preference to such rights and aggravated the inhumanity to which the
aggrieved workers claimed they had been subjected by the municipal police.
Having violated these basic human rights of the laborers, the Court of
Industrial Relations ousted itself of jurisdiction and the questioned orders it
issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as
private citizens and corporations, the exercise and enjoyment of which must

not be nullified by mere procedural rule promulgated by the Court Industrial


Relations exercising a purely delegate legislative power, when even a law
enacted by Congress must yield to the untrammelled enjoyment of these
human rights. There is no time limit to the exercise of the freedoms. The
right to enjoy them is not exhausted by the delivery of one speech, the
printing of one article or the staging of one demonstration. It is a continuing
immunity to be invoked and exercised when exigent and expedient whenever
there are errors to be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise these guarantees in the Bill of Rights would be
vitiated by rule on procedure prescribing the period for appeal. The battle
then would be reduced to a race for time. And in such a contest between an
employer and its laborer, the latter eventually loses because he cannot
employ the best an dedicated counsel who can defend his interest with the
required diligence and zeal, bereft as he is of the financial resources with
which to pay for competent legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for
reconsideration of its order or writ should filed within five (5) days from
notice thereof and that the arguments in support of said motion shall be filed
within ten (10) days from the date of filing of such motion for reconsideration
(Sec. 16). As above intimated, these rules of procedure were promulgated by
the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven
(7) days from notice on September 22, 1969 of the order dated September
15, 1969 or two (2) days late. Petitioners claim that they could have filed it
on September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days
late defeat the rights of the petitioning employees? Or more directly and
concretely, does the inadvertent omission to comply with a mere Court of
Industrial Relations procedural rule governing the period for filing a motion
for reconsideration or appeal in labor cases, promulgated pursuant to a
legislative delegation, prevail over constitutional rights? The answer should
be obvious in the light of the aforecited cases. To accord supremacy to the
foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of
constitutional government that the Constitution is superior to any statute or
subordinate rules and regulations, but also does violence to natural reason
and logic. The dominance and superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule of necessity should be

affirmed. Such a Court of Industrial Relations rule as applied in this case does
not implement or reinforce or strengthen the constitutional rights affected,'
but instead constrict the same to the point of nullifying the enjoyment
thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is
unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a
motion for reconsideration is too short, especially for the aggrieved workers,
who usually do not have the ready funds to meet the necessary expenses
therefor. In case of the Court of Appeals and the Supreme Court, a period of
fifteen (15) days has been fixed for the filing of the motion for re hearing or
reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised
Rules of Court). The delay in the filing of the motion for reconsideration could
have been only one day if September 28, 1969 was not a Sunday. This fact
accentuates the unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated
September 27, 1969, is based on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence and facts adduced
during the hearing," and likewise prays for an extension of ten (10) days
within which to file arguments pursuant to Sections 15, 16 and 17 of the
Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.);
although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period
required for the filing of such supporting arguments counted from the filing
of the motion for reconsideration. Herein petitioners received only on
October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond the
reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is
filed out of time, or where the arguments in suppf such motion are filed
beyond the 10 day reglementary period provided for by the Court of
Industrial Relations rules, the order or decision subject of 29-a reconsideration
becomes final and unappealable. But in all these cases, the constitutional
rights of free expression, free assembly and petition were not involved.
It is a procedural rule that generally all causes of action and defenses
presently available must be specifically raised in the complaint or answer; so
that any cause of action or defense not raised in such pleadings, is deemed
waived. However, a constitutional issue can be raised any time, even for the
first time on appeal, if it appears that the determination of the constitutional
issue is necessary to a decision of the case, the very lis mota of the case

without the resolution of which no final and complete determination of the


dispute can be made. 30 It is thus seen that a procedural rule of Congress or
of the Supreme Court gives way to a constitutional right. In the instant case,
the procedural rule of the Court of Industrial Relations, a creature of
Congress, must likewise yield to the constitutional rights invoked by herein
petitioners even before the institution of the unfair labor practice charged
against them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no
less by the organic law, is a most compelling reason to deny application of a
Court of Industrial Relations rule which impinges on such human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power to
"suspend its own rules or to except a particular case from its operation,
whenever the purposes of justice require." 30-b Mr. Justice Barredo in his
concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle
and added that
Under this authority, this Court is enabled to cove with all
situations without concerning itself about procedural niceties
that do not square with the need to do justice, in any case,
without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this
Court may treat an appeal as a certiorari and vice-versa. In other
words, when all the material facts are spread in the records
before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of
jurisdiction. We can then and there render the appropriate
judgment. Is within the contemplation of this doctrine that as it is
perfectly legal and within the power of this Court to strike down
in an appeal acts without or in excess of jurisdiction or
committed with grave abuse of discretion, it cannot be beyond
the admit of its authority, in appropriate cases, to reverse in a
certain proceed in any error of judgment of a court a quo which
cannot be exactly categorized as a flaw of jurisdiction. If there
can be any doubt, which I do not entertain, on whether or not the
errors this Court has found in the decision of the Court of Appeals
are short of being jurisdiction nullities or excesses, this Court
would still be on firm legal grounds should it choose to reverse
said decision here and now even if such errors can be considered
as mere mistakes of judgment or only as faults in the exercise of
jurisdiction, so as to avoid the unnecessary return of this case to

the lower court for the sole purpose of pursuing the ordinary
course of an appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule
in this particular case at bar would an unreasoning adherence to "Procedural
niceties" which denies justice to the herein laborers, whose basic human
freedoms, including the right to survive, must be according supremacy over
the property rights of their employer firm which has been given a full hearing
on this case, especially when, as in the case at bar, no actual material
damage has be demonstrated as having been inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial
Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It
should be stressed that the application in the instant case Section 15 of the
Court of Industrial Relations rules relied upon by herein respondent firm is
unreasonable and therefore such application becomes unconstitutional as it
subverts the human rights of petitioning labor union and workers in the light
of the peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial
Relations rules with reference to the case at is also authorized by Section 20
of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of
Industrial Relations to "act according to justice and equity and substantial
merits of the case, without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by
Mr. Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan,
etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners
in the motion for new trial is not "newly discovered," as such
term is understood in the rules of procedure for the ordinary
courts, We hold that such criterion is not binding upon the Court
of Industrial Relations. Under Section 20 of Commonwealth Act
No. 103, 'The Court of Industrial Relations shall adopt its, rules or
procedure and shall have such other powers as generally pertain
to a court of justice: Provided, however, That in the hearing,
investigation and determination of any question or controversy
and in exercising any duties and power under this Act, the Court
shall act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall

not be bound by any technical rules of legal evidence but may


inform its mind in such manner as it may deem just and
equitable.' By this provision the industrial court is disengaged
from the rigidity of the technicalities applicable to ordinary
courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be
deemed necessary or expedient for the purpose of settling the
dispute or dispelling any doubts that may give rise to future
disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these
reasons, We believe that this provision is ample enough to have
enabled the respondent court to consider whether or not its
previous ruling that petitioners constitute a minority was founded
on fact, without regard to the technical meaning of newly
discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua
Kiong v. Whitaker, 46 Phil. 578). (emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic
rigor" in the instant case is to rule in effect that the poor workers, who can illafford an alert competent lawyer, can no longer seek the sanctuary of human
freedoms secured to them by the fundamental law, simply because their
counsel erroneously believing that he received a copy of the decision on
September 23, 1969, instead of September 22, 1969 - filed his motion for
reconsideration September 29, 1969, which practically is only one day late
considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they
ceased to be instruments of justice, for the attainment of which such rules
have been devised. Summarizing the jurisprudence on this score, Mr. Justice
Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
As was so aptly expressed by Justice Moreland in Alonso v.
Villamor (16 Phil. 315 [1910]. The Villamor decision was cited
with approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600
[1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and
Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far
back as 1910, "technicality. when it deserts its proper-office as
an aid to justice and becomes its great hindrance and chief
enemy, deserves scant consideration from courts." (Ibid., p, 322.)
To that norm, this Court has remained committed. The late
Justice Recto in Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a
similar mind. For him the interpretation of procedural rule should
never "sacrifice the ends justice." While "procedural laws are no

other than technicalities" view them in their entirety, 'they were


adopted not as ends themselves for the compliance with which
courts have organized and function, but as means conducive to
the realization the administration of the law and of justice (Ibid.,
p.,128). We have remained steadfastly opposed, in the highly
rhetorical language Justice Felix, to "a sacrifice of substantial
rights of a litigant in altar of sophisticated technicalities with
impairment of the sacred principles of justice." (Potenciano v.
Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by
Justice Makalintal, they "should give way to the realities of the
situation." (Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA
1016, 1019). In the latest decision in point promulgated in 1968,
(Udan v. Amon, (1968, 23 SCRA citing McEntee v. Manotok, L14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was partial to
an earlier formulation of Justice Labrador that rules of procedure
"are not to be applied in a very rigid, technical sense"; but are
intended "to help secure substantial justice." (Ibid., p. 843) ... 30g
Even if the questioned Court of Industrial Relations orders and rule were to
be given effect, the dismissal or termination of the employment of the
petitioning eight (8) leaders of the Union is harsh for a one-day absence from
work. The respondent Court itself recognized the severity of such a sanction
when it did not include the dismissal of the other 393 employees who are
members of the same Union and who participated in the demonstration
against the Pasig police. As a matter of fact, upon the intercession of the
Secretary of Labor, the Union members who are not officers, were not
dismissed and only the Union itself and its thirteen (13) officers were
specifically named as respondents in the unfair labor practice charge filed
against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and
"C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the
400 or so employee participated in the demonstration, for which reason only
the Union and its thirteen (13) officers were specifically named in the unfair
labor practice charge (p. 20, respondent's brief). If that were so, then many,
if not all, of the morning and regular shifts reported for work on March 4,
1969 and that, as a consequence, the firm continued in operation that day
and did not sustain any damage.
The appropriate penalty if it deserves any penalty at all should have
been simply to charge said one-day absence against their vacation or sick
leave. But to dismiss the eight (8) leaders of the petitioner Union is a most
cruel penalty, since as aforestated the Union leaders depend on their wages
for their daily sustenance as well as that of their respective families aside

from the fact that it is a lethal blow to unionism, while at the same time
strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those
who consciously seek to destroy our system of Government, but
from men of goodwill good men who allow their proper
concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we
must remember, however, is thatpreservation of liberties does
not depend on motives. A suppression of liberty has the same
effect whether the suppress or be a reformer or an outlaw. The
only protection against misguided zeal is a constant alertness of
the infractions of the guarantees of liberty contained in our
Constitution. Each surrender of liberty to the demands of the
moment makes easier another, larger surrender. The battle over
the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of
all are protected.
... But even if we should sense no danger to our own liberties,
even if we feel secure because we belong to a group that is
important and respected, we must recognize that our Bill of
Rights is a code of fair play for the less fortunate that we in all
honor and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a
complete lack of sympathetic understanding of the plight of its laborers who
claim that they are being subjected to indignities by the local police, It was
more expedient for the firm to conserve its income or profits than to assist its
employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such
opportunism and expediency resorted to by the respondent company
assaulted the immunities and welfare of its employees. It was pure and
implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs.


C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for having
written and published "a patently libelous letter ... to the Bank president
demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of
bank employees." Therein, thru Mr. Justice Castro, We ruled:
It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual
capacities when they wrote the letter-charge they were
nonetheless protected for they were engaged in concerted
activity, in the exercise of their right of self organization that
includes concerted activity for mutual aid and protection,
(Section 3 of the Industrial Peace Act ...) This is the view of some
members of this Court. For, as has been aptly stated, the joining
in protests or demands, even by a small group of employees, if
in furtherance of their interests as such, is a concerted activity
protected by the Industrial Peace Act. It is not necessary that
union activity be involved or that collective bargaining be
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the
respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for
what it calls the respondents' libel in giving undue publicity to
their letter-charge. To be sure, the right of self-organization of
employees is not unlimited (Republic Aviation Corp. vs. NLRB 324
U.S. 793 [1945]), as the right of the employer to discharge for
cause (Philippine Education Co. v. Union of Phil. Educ. Employees,
L-13773, April 29, 1960) is undenied. The Industrial Peace Act
does not touch the normal exercise of the right of the employer
to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the
countervailing right of self organization (Phelps Dodge Corp. v.
NLRB 313 U.S. 177 [1941])...
xxx xxx xxx

In the final sum and substance, this Court is in unanimity that


the Bank's conduct, identified as an interference with the
employees' right of self-organization or as a retaliatory
action, and/or as a refusal to bargain collectively, constituted an
unfair labor practice within the meaning and intendment of
section 4(a) of the Industrial Peace Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify labor
unionism in the Republic Savings case, supra, where the complaint assailed
the morality and integrity of the bank president no less, such recognition and
protection for free speech, free assembly and right to petition are rendered
all the more justifiable and more imperative in the case at bar, where the
mass demonstration was not against the company nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of
Industrial Relations dated September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with full
back pay from the date of their separation from the service until re instated,
minus one day's pay and whatever earnings they might have realized from
other sources during their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting:


I bow in respectful and sincere admiration, but my sense of duty compels me
to dissent.

The background of this case may be found principally in the stipulation of


facts upon which the decision under review is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a
corporation existing and operating under and by virtue of the
laws of the Philippines with corporate address at 666 Muelle de
Binondo, Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO
for short, is a legitimate labor organization, and the respondents
herein are either officers of respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated
by the first shift (6:00 AM 2:00 PM workers as well as those
working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM
to 5:00 PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969
at about 11:00 A.M. at the Company's canteen, and those
present were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty.
Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3)
Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny
said projected mass demonstration at Malacaang on March 4,
1969. PBMEO thru Benjamin Pagcu who acted as the spokesman
of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled
because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with
the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an
inalienable right of the union guaranteed by the Constitution but
emphasized, however, that any demonstration for that matter
should not unduly prejudice the normal operation of the

Company. For which reason, the Company, thru Atty. C.S. de


Leon, warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous leave
of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall
be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting
was convoked. Company represented by Atty. C.S. de Leon, Jr.
The Union panel was composed of: Nicanor Tolentino, Rodulfo
Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and
appealed to the PBMEO representatives that while all workers
may join the Malacaang demonstration, the workers for the first
and regular shift of March 4, 1969 should be excused from joining
the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the
provisions of the CBA, particularly Article XXIV "NO LOCKOUT
NO STRIKE". All those who will not follow this warning of the
Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans
inasmuch as the Malacaang demonstration will be held the
following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March
4, 1969, the contents of which are as follows: 'REITERATING
REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected demonstration did in
fact occur and in the process paralyzed to a large extent the operations of
the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial Relations
filed with said court a complaint for Unfair Labor Practice against petitioners
charging that: .

3. That on March 4, 1969, respondents (petitioners herein)


particularly those in the first shift, in violation of the existing
collective bargaining agreement and without filing the necessary
notice as provided for by law, failed to report for work,
amounting to a declaration of strike;
4. That the above acts are in violation of Section 4(a)
subparagraph 6, in relation to Sections 13, 14 and 15 of Republic
Act No. 875, and of the collective bargaining agreement. (Pars. 3
and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part of which
read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills
Employees Organization is found guilty of bargaining in bad faith
and is hereby ordered to cease and desist from further
committing the same and its representatives namely: respondent
Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino
and Rodulfo Monsod who are directly responsible for perpetrating
this unfair labor practice act, are hereby considered to have lost
their status as employees of the Philippine Blooming Mills, Inc.
(p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were notified of
this decision on September 23, 1969, there seems to be no serious question
that they were actually served therewith on September 22, 1969. In fact,
petitioners admitted this date of notice in paragraph 2 of their Petition for
Relief dated October 30, 1969 and filed with the industrial court on the
following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven (7)
days after they were notified of the court's decision, that petitioners filed
their motion for reconsideration with the industrial court; as it is also not
disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other
words, petitioners' motion for reconsideration was filed two (2) days after the
lapse of the five (5) day period provided for the filing thereof in the rules of
the Court of Industrial Relations, whereas the "Arguments" were filed five (5)
days after the expiration of the period therefor also specified in the same
rules.

Accordingly, the first issue that confronts the Court is the one raised by
respondent private firm, namely, that in view of the failure of petitioners to
file not only their motion for reconsideration but also their arguments in
support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering
and issuing its impugned order of October 9, 1969 dismissing petitioners'
motion for reconsideration.
Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations 1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the
then Associate Judge Arsenio I. Martinez, the dispositive part of
which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No
arguments were advanced in support thereof.
August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support of its
aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion
for reconsideration. Ground therefor was that the arguments
were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the
same time lodged the present petition with this Court.
Upon respondent Perlado's return and petitioner's brief
(respondents did not file their brief), the case is now before us for
resolution.
1. That the judgment appealed from is a final judgment not
merely an interlocutory order there is no doubt. The fact that
there is need for computation of respondent Perlado's overtime
pay would not render the decision incomplete. This in effect is
the holding of the Court in Pan American World Airways System
(Philippines) vs. Pan American Employees Association, which runs
thus: 'It is next contended that in ordering the Chief of the

Examining Division or his representative to compute the


compensation due, the Industrial Court unduly delegated its
judicial functions and thereby rendered an incomplete decision.
We do not believe so. Computation of the overtime pay involves
a mechanical function, at most. And the report would still have to
be submitted to the Industrial Court for its approval, by the very
terms of the order itself. That there was no specification of the
amount of overtime pay in the decision did not make it
incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate
Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the
sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of
this Court both answer the question in the affirmative.
Section 15 of the CIR Rules requires that one who seeks to
reconsider the judgment of the trial judge must do so within five
(5) days from the date on which he received notice of the
decision, subject of the motion. Next follows Section 16 which
says that the motion must be submitted with arguments
supporting the same. But if said arguments could not be
submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10)
days from the date of the filing of his motion for reconsideration.'
Section 17 of the same rules admonishes a movant that "(f)ailure
to observe the above-specified periods shall be sufficient cause
for dismissal of the motion for reconsideration or striking out of
the answer and/or the supporting arguments, as the case may
be".
Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97
Phil. 956) we ruled that where a pro forma motion for
reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in
support of said motion were or were not filed on time.
Pangasinan Employees Laborers & Tenants Association (PELTA)
vs. Martinez, (L-13846, May 20, 1960) pronounced that where a
motion to reconsider is filed out of time, the order or decision

subject of reconsideration comes final. And so also, where the


arguments in support of the motion for reconsideration are filed
beyond the ten-day reglementary period, the pre forma motion
for reconsideration although seasonably filed must nevertheless
be denied. This in essence is our ruling in Local 7, Press &
Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon
Stevedoring Co., Inc. vs. Court of Industrial Relations, is that
where the motion for reconsideration is denied upon the ground
that the arguments in support thereof were filed out of time, the
order or decision subject of the motion becomes "final and
unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion to reconsider without
arguments in support thereof of August 12 was filed on time.
For, August 11, the end of the five-day reglementary period to
file a motion for reconsideration, was a Sunday. But, actually, the
written arguments in support of the said motion were submitted
to the court on August 27. The period from August 12 to August
27, is a space of fifteen (15) days. Surely enough, said
arguments were filed out of time five (5) days late. And the
judgment had become final.
3. There is, of course, petitioner's motion of August 21, 1963
seeking extension of time within which to present its arguments
in support of its motion. Counsel in his petition before this Court
pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not
enable him to do so within the stated ten-day reglementary
period. The arguments were only filed on August 27 five (5)
days late, as aforesaid.
The foregoing circumstances will not avail petitioner any. It is to
be noted that the motion for expansion of time was filed only on
August 21, that is, one day before the due date which is August
22. It was petitioner's duty to see to it that the court act on this
motion forthwith or at least inquire as to the fate thereof not
later than the 22nd of August. It did not. It merely filed its
arguments on the 27th.

To be underscored at this point is that "obviously to speed up the


disposition of cases", CIR "has a standing rule against the
extension of the ten-day period for filing supporting arguments".
That no-extension policy should have placed petitioner on guard.
It should not have simply folded its arms, sit by supinely and
relied on the court's generosity. To compound petitioner's
neglect, it filed the arguments only on August 27, 1953, knowing
full well that by that time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of September 16,
1963 dismissing the motion for reconsideration on the ground
that the supporting arguments were filed out of time. That ruling
in effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable.
We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has
not been in any way modified, much less revoked or reversed by this Court,
the main opinion has chosen not only to go into the merits of petitioners'
pose that the respondent court erred in holding them guilty of bargaining in
bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an
exposition of the constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so scholarly and masterful that
it is bound to overwhelm Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere admiration for the
eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully
state that as presented by petitioners themselves and in the light of its
attendant circumstances, this case does not call for the resolution of any
constitutional issue. Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects individual freedoms enshrined
in the bill of rights, deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial practices related thereto,
however, that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent
with substantive and procedural due process are observed. No doubt no
constitutional right can be sacrificed in the altar of procedural technicalities,
very often fittingly downgraded as niceties but as far as I know, this principle
is applied to annul or set aside final judgments only in cases wherein there is

a possible denial of due process. I have not come across any instance, and
none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the
ground that the same has the effect of sanctioning the violation of a
constitutional right, unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from any
judicial precedent or reason of principle, the main opinion nudely and
unqualifiedly asserts, as if it were universally established and accepted as an
absolute rule, that the violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers
no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned
almost in passing, does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be
obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs.
Homeres 2 which, in principle, served as its precedent, for the very simple
reason that in both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be
allowed to present evidence to establish his defense after his demurrer to
the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases
are a far cry from the one now before Us. Here, petitioners do not claim they
were denied due process. Nor do they pretend that in denying their motion
for reconsideration, "the respondent Court of Industrial Relations and private
firm trenched upon any of their constitutional immunities ...," contrary to the
statement to such effect in the main opinion. Indeed, neither in the petition
herein nor in any of the other pleading of petitioners can any direct or
indirect assertion be found assailing the impugned decision of the
respondent court as being null and void because it sanctioned a denial of a
valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be resolved is
whether or not the respondent Courten banc under the facts and
circumstances, should consider the Motion for Reconsideration
filed by your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari,


humbly beg this Honorable Court to treat this petition under Rule
43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc
of the strict and narrow technical rules of procedure without
taking into account justice, equity and substantial merits of the
case.
On the other hand, the complete argument submitted by
petitioners on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute bargaining in
bad faith? and,
Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith
meriting the dismissal of the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion when the respondent
court refused to act one way or another on the petition for relief
from the resolution of October 9, 1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union guilty of
bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is
country to the evidence on record; that the dismissal of leaders
was discriminatory.

As a result of exercising the constitutional rights of freedom to


assemble and petition the duly constituted authorities for redress
of their grievances, the petitioners were charged and then
condemned of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad
faith were not borne out by the records. It was not even alleged
nor proven by evidence. What has been alleged and which the
respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of
the "no-lockout no strike" clause of the collective bargaining
agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated categorically:
'The company alleges that the walkout because of
the demonstration is tantamount to a declaration of
a strike. We do not think so, as the same is not
rooted in any industrial dispute although there is a
concerted act and the occurrence of a temporary
stoppage of work.' (Emphasis supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's findings that the petitioner
union bargained in bad faith is not tenable because:
First, it has not been alleged nor proven by the respondent
company; .
Second, before the demonstration, the petitioner union and the
respondent company convened twice in a meeting to thresh out
the matter of demonstration. Petitioners requested that the
employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so
that the hours of work will not be disrupted, immediately
threatened the employees of mass dismissal;
Third, the refusal of the petitioner union to grant the request of
the company that the first shift shall be excluded in the
demonstration is not tantamount to bargaining in bad faith
because the company knew that the officers of the union
belonged to the first shift, and that the union cannot go and lead
the demonstration without their officers. It must be stated that

the company intends to prohibit its officers to lead and join the
demonstration because most of them belonged to the first shift;
and
Fourth, the findings of the respondent court that the
demonstration if allowed will practically give the union the right
to change the working conditions agreed in the CBA is a
conclusion of facts, opinionated and not borne by any evidence
on record. The demonstration did not practically change the
terms or conditions of employment because it was only for one
(1) day and the company knew about it before it went through.
We can even say that it was the company who bargained in bad
faith, when upon representation of the Bureau of Labor not to
dismiss the employees demonstrating, the company tacitly
approved the same and yet while the demonstration was in
progress, the company filed a ULP Charge and consequently
dismissed those who participated.
Records of the case show that more or less 400 members of the
union participated in the demonstration and yet, the respondent
court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent
company. The respondent court should have taken into account
that the company's action in allowing the return of more or less
three hundred ninety two (392) employees/members of the union
is an act of condonation and the dismissal of the eight (8) officers
is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958).
Seemingly, from the opinion stated in the decision by the court,
while there is a collective bargaining agreement, the union
cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the
CBA. It follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of a
union to strike as provided for in Republic Act 875. This creates a
bad precedent because it will appear that the rights of the union
is solely dependent upon the CBA.
One of the cardinal primary rights which must be respected in
proceedings before the Court of Industrial Relations is that "the
decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R.

Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by
confining the administrative tribunal to the evidence disclosed to
the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L45496, February 27, 1940.)
The petitioners respectfully and humbly submit that there is no
scintilla of evidence to support the findings of the respondent
court that the petitioner union bargained in bad faith. Corollary
therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been
guilty of bargaining in bad faith and consequently lost their
status as employees of the respondent company did not meet
the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the
complaint (Annex "C", Petition) nor proven during the hearing of
the can. The important and substantial merit of the case is
whether under the facts and circumstances alleged in
respondent company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike no lock out" clause of the Collective
Bargaining Agreement. Petitioners respectfully reiterate and
humbly submit, that the respondent court had altogether opined
and decided that such demonstration does not amount to a
strike. Hence, with that findings, petitioners should have been
absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of
bounds by declaring the petitioners as having "bargained in
faith." The stand of the respondent court is fallacious, as it
follows the principle in logic as "non-siquitor";
2) That again respondents wanted to impress that the freedom to
assemble peaceably to air grievances against the duly
constituted authorities as guaranteed in our Constitution is
subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners
to free speech and assembly is paramount to the provision in the
Collective Bargaining Agreement and such attempt to override
the constitutional provision would be null and void. These

fundamental rights of the petitioners were not taken into


consideration in the deliberation of the case by the respondent
court;
Thus, it is clear from the foregoing contentions that petitioners are not
raising any issue of due process. They do not posit that the decision of the
industrial court is null and void on that constitutional ground. True it is that
they fault the respondent court for having priced the provisions of the
collective bargaining agreement herein involved over and above their
constitutional right to peaceably assemble and petition for redress of their
grievances against the abuses of the Pasig police, but in no sense at all do
they allege or contend that such action affects its jurisdiction in a manner
that renders the proceedings a nullity. In other words, petitioners themselves
consider the alleged flaw in the court's action as a mere error of judgment
rather than that of jurisdiction which the main opinion projects. For this Court
to roundly and indignantly condemn private respondent now for the grievous
violation of the fundamental law the main opinion sees in its refusal to allow
all its workers to join the demonstration in question, when that specific issue
has not been duly presented to Us and properly argued, is to my mind unfair
and unjust, for the simple reason that the manner this case was brought to
Us does not afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an
error of jurisdiction by finding petitioners guilty of bargaining in bad faith
when the charge against them alleged in the complaint was for having
conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional
question has no constitutional color. Indeed, We can even assume for the
sake of argument, that the trial judge did err in not giving preferential
importance to the fundamental freedoms invoked by the petitioners over the
management and proprietary attributes claimed by the respondent private
firm still, We cannot rightly hold that such disregard of petitioners'
priceless liberties divested His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions, erroneous or not, become
final after the period fixed by law; litigations would be endless, no questions
would be finally settled; and titles to property would become precarious if
the losing party were allowed to reopen them at any time in the future". 3
I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a
denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned violation

of an ordinary statute than by a misconstrued or constitutional injunction


affecting his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount considerations that
inform the principle of immutability of final judgments. I dare say this must
be the reason why, as I have already noted, the main opinion does not cite
any constitutional provision, law or rule or any judicial doctrine or principle
supporting its basic holding that infringement of constitutional guarantees,
other than denial of due process, divests courts of jurisdiction to render valid
judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners have
not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the
main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that
the erroneous resolution by a court of a constitutional issue not amounting to
a denial of due process renders its judgment or decision null and void, and,
therefore, subject to attack even after said judgment or decision has become
final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only
to avoid dissenting from his well prepared thesis, but its obvious incongruity
with settled jurisprudence always comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along
with petitioners under the authority of our constitutionally irreducible
appellate jurisdiction under Section 2(5) of Article VII of the
Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the
1973 Constitution), only to realize upon further reflection that the very power
granted to us to review decisions of lower courts involving questions of
law(and these include constitutional issues not affecting the validity of
statutes, treaty, executive agreement, etc.) is not unqualified but has to be
exercised only in the manner provided in the law of the Rules of Court. In
other words, before We can exercise appellate jurisdiction over constitutional
issues, no matter how important they may be, there must first be a showing
of compliance with the applicable procedural law or rules, among them,
those governing appeals from the Court of Industrial Relations involved
herein. Consequently, if by law or rule, a judgment of the industrial court is

already final and executory, this Court would be devoid of power and
authority to review, much less alter or modify the same, absent any denial of
due process or fatal defect of jurisdiction. It must be borne in mind that the
situation confronting Us now is not merely whether or not We should pass
upon a question or issue not specifically raised by the party concerned,
which, to be sure, could be enough reason to dissuade Us from taking pains
in resolving the same; rather, the real problem here is whether or not We
have jurisdiction to entertain it. And, in this regard, as already stated earlier,
no less than Justice Conrado Sanchez, the writer of Chavez,supra., which is
being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts
of this case, We have no choice but to follow, that is, that in view of
reconsideration but even their argument supporting the same within the
prescribed period, "the judgment (against them)has become final, beyond
recall".
Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness
thereof from the constitutional standpoint, and that in truth, whether or not
they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as
changeable as the members themselves are changed, I cannot conceive of
anything more pernicious and destructive to a trustful administration of
justice than the idea that, even without any showing of denial of due process
or want of jurisdiction of the court, a final and executory judgment of such
court may still be set aside or reopened in instances other than those
expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1)
of the Civil Code. 7 And just to emphasize the policy of the law of respecting
judgments once they have become final, even as this Court has ruled that
final decisions are mute in the presence of fraud which the law abhors,8 it is
only when the fraud is extrinsic and not intrinsic that final and executory
judgments may be set aside, 9 and this only when the remedy is sought
within the prescriptive period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil.
776:
Litigation must end and terminate sometime and somewhere,
and it is essential to an effective and efficient administration of
justice that once a judgment has become final, the winning party
be not, through a mere subterfuge, deprived of the fruits of the
verdict. Courts must therefore guard against any scheme
calculated to bring about that result. Constituted as they are to

put an end to controversies, courts should frown upon any


attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v.
Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at
some definite date fixed by law. The very object for which courts
were instituted was to put an end to controversies. To fulfill this
purpose and to do so speedily, certain time limits, more or less
arbitrary, have to be set up to spur on the slothful. 'If a
vacillating, irresolute judge were allowed to thus keep causes
ever within his power, to determine and redetermine them term
after term, to bandy his judgments about from one party to the
other, and to change his conclusions as freely and as capriciously
as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to
redress.' (See Arnedo vs. Llorente and Liongson (1911), 18 Phil.,
257.).
My disagreement with the dissenters in Republic vs. Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and
invulnerability of final judgments but rather on the correct interpretation of
the contents of the judgment in question therein. Relevantly to this case at
bar, I said then:
The point of res adjudicata discussed in the dissents has not
escaped my attention. Neither am I overlooking the point of the
Chief Justice regarding the dangerous and inimical implications of
a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize
that my position in this opinion does not detract a whit from the
soundness, authority and binding force of existing doctrines
enjoining any such modifications. The public policy of
maintaining faith and respect in judicial decisions, which inform
said doctrines, is admittedly of the highest order. I am not
advocating any departure from them. Nor am I trying to put forth
for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of
Judge Tengco but the decision of this Court in G.R. No. L-20950,
as it is and not as I believe it should have been, and, by opinion, I
would like to guide the court a quo as to what, in my own view, is

the true and correct meaning and implications of decision of this


Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases in
the industrial court, wherein the Court refused to be constrained by technical
rules of procedure in its determination to accord substantial justice to the
parties I still believe in those decisions, some of which were penned by me. I
am certain, however, that in none of those precedents did this Court disturb
a judgment already final and executory. It too obvious to require extended
elucidation or even reference any precedent or authority that the principle of
immutability of final judgments is not a mere technicality, and if it may
considered to be in a sense a procedural rule, it is one that is founded on
public policy and cannot, therefore, yield to the ordinary plea that it must
give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to hold
on, the main opinion goes far as to maintain that the long existing and
constantly applied rule governing the filing of motions for reconsideration in
the Court of Industrial Relations, "as applied in this case does not implement
on reinforce or strengthen the constitutional rights affected, but instead
constricts the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court on Industrial Relations Rule, promulgated
as it was pursuant to mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and the law. A
period of five (5) days within which to file a motion for reconsideration is too
short, especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of
Appeal and the Supreme Court, a period of fifteen (15) days has been fixed
for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51;
Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial Relations Rule insofar as
circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the
conclusion suggested. Viewed objectively, it can readily be seen that there
can hardly be any factual or logical basis for such a critical view of the rule in
question. Said rule provides:
MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within
five (5) days from the date on which he receives notice of the
order or decision, object of the motion for reconsideration, the
same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or
by registered mail, on the adverse party. The latter may file an
answer, in six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court,
the movant shall file same within ten (10) days from the date of
the filing of his motion for reconsideration. The adverse party
shall also file his answer within ten (10) days from the receipt by
him of a copy of the arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten
(10) days from the receipt of the arguments in support of said
motion having been filed, the motion shall be deemed submitted
for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall
issue the corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking
out of the answer and/or the supporting arguments, as the case
may be. (As amended April 20, 1951, Court of Industrial
Relations.).
As implemented and enforced in actual practice, this rule, as everyone
acquainted with proceedings in the industrial court well knows, precisely
permits the party aggrieved by a judgment to file no more than a pro-forma
motion for reconsideration without any argument or lengthy discussion and
with barely a brief statement of the fundamental ground or grounds therefor,
without prejudice to supplementing the same by making the necessary
exposition, with citations laws and authorities, in the written arguments the
be filed (10) days later. In truth, such a pro-forma motion has to effect of just
advising the court and the other party that the movant does not agree with
the judgment due to fundamental defects stated in brief and general terms.
Evidently, the purpose of this requirement is to apprise everyone concerned
within the shortest possible time that a reconsideration is to sought, and
thereby enable the parties concerned to make whatever adjustments may be
warranted by the situation, in the meanwhile that the litigation is prolonged.

It must borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might
require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the
case be known to the other so that both avenues for earlier settlement may,
if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is
short or inadequate. In fact, the motion filed petitioners was no more than
the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this
Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable Court dated
September 17, 1969 on the ground that the same is not in
accordance with law, evidence and facts adduced during the
hearing of the above entitled case.
Movant-respondents most respectfully move for leave to file their
respective arguments within ten (10) days pursuant to Section
15, 16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing
of such a motion is to me simply incomprehensible. What worse
in this case is that petitioners have not even taken the trouble of
giving an explanation of their inability to comply with the rule.
Not only that, petitioners were also late five (5) days in filing
their written arguments in support of their motion, and, the only
excuse offered for such delay is that both the President of the
Union and the office clerk who took charge of the matter forgot
to do what they were instructed to do by counsel, which,
according to this Court, as I shall explain anon "is the most
hackneyed and habitual subterfuge employed by litigants who
fail to observe the procedural requirements prescribed by the
Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet,

very indignantly, the main opinion would want the Court to


overlook such nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules fixing
periods for the finality of judgments are in a sense more substantive than
procedural in their real nature, for in their operation they have the effect of
either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final
judgment is deprived of jurisdiction or authority to alter or modify the same
enhances such substantive character. Moreover, because they have the
effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are
substantive. Now, the twin predicates of prescription are inaction or
abandonment and the passage of time or a prescribed period. On the other
hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained.
The most valuable right of a party may be lost by prescription, and be has no
reason to complain because public policy demands that rights must be
asserted in time, as otherwise they can be deemed waived.
I see no justification whatsoever for not applying these self-evident principles
to the case of petitioners. Hence, I feel disinclined to adopt the suggestion
that the Court suspend, for the purposes of this case the rules aforequoted of
the Court of Industrial Relations. Besides, I have grave doubts as to whether
we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of substance
justice, this Court did exercise in some instances its re power to amend its
rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in a
belated effort to salvage their Petitioners filed in the industrial court on
October 31, 1969 a Petition for relief alleging that their failure to file
"Arguments in Support of their Motion for Reconsideration within the
reglementary period or five (5), if not seven (7), days late "was due to
excusable negligence and honest mistake committed by the President of the
respondent Union and on office clerk of the counsel for respondents as
shown attested in their respective affidavits", (See Annexes K, and K-2) which
in brief, consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of the said
office employee having also coincidentally forgotten "to do the work
instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical

jobs". No sympathy at all can be evoked these allegations, for, under


probably more justification circumstances, this Court ruled out a similar
explanation previous case this wise:
We find merit in PAL's petition. The excuse offered respondent
Santos as reason for his failure to perfect in due time appeal
from the judgment of the Municipal Court, that counsel's clerk
forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe
procedural requirements prescribed by the Rules of Court. The
uncritical acceptance of this kind of common place excuses, in
the face of the Supreme Court's repeated rulings that they are
neither credible nor constitutive of excusable negligence
(Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs. Judge
Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion.
(Philippine Air Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to
be reviewed in the present case has already become final and executory,
nay, not without the fault of the petitioners, hence, no matter how erroneous
from the constitutional viewpoint it may be, it is already beyond recall, I vote
to dismiss this case, without pronouncement as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacaang on March 4,
1969 in protest against alleged abuses of the Pasig police department, upon
two days' prior notice to respondent employer company, as against the
latter's insistence that the first shift 1 should not participate but instead
report for work, under pain of dismissal, the industrial court ordered the
dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on respondent's
complaint of bargaining in bad faith and unfair labor practice for having so
carried out the mass demonstration, notwithstanding that it concededly
was nota declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly
constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor practice
since respondent firm conceded that "the demonstration is an inalienable

right of the union guaranteed' by the Constitution" and the union up to the
day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their
previous requests.
Neither could there be, in law, a willful violation of the collective bargaining
agreement's "no-strike" clause as would warrant the union leaders' dismissal,
since as found by respondent court itself the mass demonstration was not a
declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to
enable the workers to exercise their constitutional rights of free expression,
peaceable assembly and petition for redress of grievance against alleged
police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for
reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of
petitioners' counsel and/or the union president should likewise be set aside
as a manifest act of grave abuse of discretion. Petitioners' petition for relief
from the normal adverse consequences of the late filing of their motion for
reconsideration due to such negligence which was not acted upon by
respondent court should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their
summary dismissal from employment, simply because they sought in good
faith to exercise basic human rights guaranteed them by the Constitution. It
should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the
main opinion's premise that its insistence on dismissal of the union leaders
for having included the first shift workers in the mass demonstration against
its wishes was but an act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners
and the constitutional injunction to afford protection to labor be given true
substance and meaning. No person may be deprived of such basic rights
without due process which is but "responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is
ruled out and unfairness avoided ... Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been identified as
freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of the
respondent court and concur in the judgment for petitioners as set forth in
the main opinion.

Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels me
to dissent.
The background of this case may be found principally in the stipulation of
facts upon which the decision under review is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company, Inc., is a
corporation existing and operating under and by virtue of the
laws of the Philippines with corporate address at 666 Muelle de
Binondo, Manila, which is the employer of respondent;
2. That Philippine Blooming Mills Employees Organization PBMEO
for short, is a legitimate labor organization, and the respondents
herein are either officers of respondent PBMEO or members
thereof;
3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacaang in protest against
alleged abuses of the Pasig Police Department to be participated
by the first shift (6:00 AM 2:00 PM workers as well as those
working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM
to 5:00 PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969
at about 11:00 A.M. at the Company's canteen, and those
present were: for the Company: (1) Mr. Arthur L. Ang, (2) Atty.
Cesareo S. de Leon, Jr. (3) and all department and section heads.
For the PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3)
Mariano de Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny
said projected mass demonstration at Malacaang on March 4,
1969. PBMEO thru Benjamin Pagcu who acted as the spokesman
of the union panel, confirmed the planned demonstration and

stated that the demonstration or rally cannot be cancelled


because it has already been agreed upon in the meeting. Pagcu
explained further that the demonstration has nothing to do with
the Company because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel
manager, informed PBMEO that the demonstration is an
inalienable right of the union guaranteed by the Constitution but
emphasized, however, that any demonstration for that matter
should not unduly prejudice the normal operation of the
Company. For which reason, the Company, thru Atty. C.S. de
Leon, warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous leave
of absence approved by the Company, particularly the officers
present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall
be dismissed, because such failure is a violation of the existing
CBA and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting
was convoked. Company represented by Atty. C.S. de Leon, Jr.
The Union panel was composed of: Nicanor Tolentino, Rodulfo
Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and
appealed to the PBMEO representatives that while all workers
may join the Malacaang demonstration, the workers for the first
and regular shift of March 4, 1969 should be excused from joining
the demonstration and should report for work; and thus utilize
the workers in the 2nd and 3rd shifts in order not to violate the
provisions of the CBA, particularly Article XXIV "NO LOCKOUT
NO STRIKE". All those who will not follow this warning of the
Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans
inasmuch as the Malacaang demonstration will be held the
following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9:50 A.M., March
4, 1969, the contents of which are as follows: 'REITERATING

REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING


DEMONSTRATION MARCH 4, 1969.
Additionally, the trial court found that "the projected demonstration did in
fact occur and in the process paralyzed to a large extent the operations of
the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial Relations
filed with said court a complaint for Unfair Labor Practice against petitioners
charging that: .
3. That on March 4, 1969, respondents (petitioners herein)
particularly those in the first shift, in violation of the existing
collective bargaining agreement and without filing the necessary
notice as provided for by law, failed to report for work,
amounting to a declaration of strike;
4. That the above acts are in violation of Section 4(a)
subparagraph 6, in relation to Sections 13, 14 and 15 of Republic
Act No. 875, and of the collective bargaining agreement. (Pars. 3
and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part of which
read's:
IN VIEW HEREOF, the respondent Philippine Blooming Mills
Employees Organization is found guilty of bargaining in bad faith
and is hereby ordered to cease and desist from further
committing the same and its representatives namely: respondent
Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino
and Rodulfo Monsod who are directly responsible for perpetrating
this unfair labor practice act, are hereby considered to have lost
their status as employees of the Philippine Blooming Mills, Inc.
(p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were notified of
this decision on September 23, 1969, there seems to be no serious question
that they were actually served therewith on September 22, 1969. In fact,
petitioners admitted this date of notice in paragraph 2 of their Petition for
Relief dated October 30, 1969 and filed with the industrial court on the
following day. (See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7)
days after they were notified of the court's decision, that petitioners filed
their motion for reconsideration with the industrial court; as it is also not
disputed that they filed their "Arguments in Support of the Respondents'
Motion for Reconsideration" only on October 14, 1969. (See Annex I.) In other
words, petitioners' motion for reconsideration was filed two (2) days after the
lapse of the five (5) day period provided for the filing thereof in the rules of
the Court of Industrial Relations, whereas the "Arguments" were filed five (5)
days after the expiration of the period therefor also specified in the same
rules.
Accordingly, the first issue that confronts the Court is the one raised by
respondent private firm, namely, that in view of the failure of petitioners to
file not only their motion for reconsideration but also their arguments in
support thereof within the periods respectively fixed in the rules therefor, the
Court of Industrial Relations acted correctly and within the law in rendering
and issuing its impugned order of October 9, 1969 dismissing petitioners'
motion for reconsideration.
Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations 1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision of the
then Associate Judge Arsenio I. Martinez, the dispositive part of
which was set forth earlier in this opinion.
August 12, 1963. Petitioner filed a motion for reconsideration. No
arguments were advanced in support thereof.
August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support of its
aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the motion
for reconsideration. Ground therefor was that the arguments
were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and at the
same time lodged the present petition with this Court.

Upon respondent Perlado's return and petitioner's brief


(respondents did not file their brief), the case is now before us for
resolution.
1. That the judgment appealed from is a final judgment not
merely an interlocutory order there is no doubt. The fact that
there is need for computation of respondent Perlado's overtime
pay would not render the decision incomplete. This in effect is
the holding of the Court in Pan American World Airways System
(Philippines) vs. Pan American Employees Association, which runs
thus: 'It is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated its
judicial functions and thereby rendered an incomplete decision.
We do not believe so. Computation of the overtime pay involves
a mechanical function, at most. And the report would still have to
be submitted to the Industrial Court for its approval, by the very
terms of the order itself. That there was no specification of the
amount of overtime pay in the decision did not make it
incomplete, since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate
Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in the
sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the jurisprudence of
this Court both answer the question in the affirmative.
Section 15 of the CIR Rules requires that one who seeks to
reconsider the judgment of the trial judge must do so within five
(5) days from the date on which he received notice of the
decision, subject of the motion. Next follows Section 16 which
says that the motion must be submitted with arguments
supporting the same. But if said arguments could not be
submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10)
days from the date of the filing of his motion for reconsideration.'
Section 17 of the same rules admonishes a movant that "(f)ailure
to observe the above-specified periods shall be sufficient cause
for dismissal of the motion for reconsideration or striking out of

the answer and/or the supporting arguments, as the case may


be".
Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97
Phil. 956) we ruled that where a pro forma motion for
reconsideration was filed out of time its denial is in order
pursuant to CIR rules, regardless of whether the arguments in
support of said motion were or were not filed on time.
Pangasinan Employees Laborers & Tenants Association (PELTA)
vs. Martinez, (L-13846, May 20, 1960) pronounced that where a
motion to reconsider is filed out of time, the order or decision
subject of reconsideration comes final. And so also, where the
arguments in support of the motion for reconsideration are filed
beyond the ten-day reglementary period, the pre forma motion
for reconsideration although seasonably filed must nevertheless
be denied. This in essence is our ruling in Local 7, Press &
Printing Free Workers (FFW) vs. Tabigne. The teaching in Luzon
Stevedoring Co., Inc. vs. Court of Industrial Relations, is that
where the motion for reconsideration is denied upon the ground
that the arguments in support thereof were filed out of time, the
order or decision subject of the motion becomes "final and
unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I.
Martinez aforesaid. Petitioner's motion to reconsider without
arguments in support thereof of August 12 was filed on time.
For, August 11, the end of the five-day reglementary period to
file a motion for reconsideration, was a Sunday. But, actually, the
written arguments in support of the said motion were submitted
to the court on August 27. The period from August 12 to August
27, is a space of fifteen (15) days. Surely enough, said
arguments were filed out of time five (5) days late. And the
judgment had become final.
3. There is, of course, petitioner's motion of August 21, 1963
seeking extension of time within which to present its arguments
in support of its motion. Counsel in his petition before this Court
pleads that the foregoing motion was grounded on the
'extremely busy and difficult schedule of counsel which would not
enable him to do so within the stated ten-day reglementary

period. The arguments were only filed on August 27 five (5)


days late, as aforesaid.
The foregoing circumstances will not avail petitioner any. It is to
be noted that the motion for expansion of time was filed only on
August 21, that is, one day before the due date which is August
22. It was petitioner's duty to see to it that the court act on this
motion forthwith or at least inquire as to the fate thereof not
later than the 22nd of August. It did not. It merely filed its
arguments on the 27th.
To be underscored at this point is that "obviously to speed up the
disposition of cases", CIR "has a standing rule against the
extension of the ten-day period for filing supporting arguments".
That no-extension policy should have placed petitioner on guard.
It should not have simply folded its arms, sit by supinely and
relied on the court's generosity. To compound petitioner's
neglect, it filed the arguments only on August 27, 1953, knowing
full well that by that time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of September 16,
1963 dismissing the motion for reconsideration on the ground
that the supporting arguments were filed out of time. That ruling
in effect denied the motion for extension.
We rule that CIR's judgment has become final and unappealable.
We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has
not been in any way modified, much less revoked or reversed by this Court,
the main opinion has chosen not only to go into the merits of petitioners'
pose that the respondent court erred in holding them guilty of bargaining in
bad faith but also to ultimately uphold petitioners' claim for reinstatement on
constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on an
exposition of the constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so scholarly and masterful that
it is bound to overwhelm Us unless We note carefully the real issues in this
case, I am constrained, over and above my sincere admiration for the
eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to dutifully
state that as presented by petitioners themselves and in the light of its
attendant circumstances, this case does not call for the resolution of any

constitutional issue. Admittedly, the invocation of any constitutional


guarantee, particularly when it directly affects individual freedoms enshrined
in the bill of rights, deserves the closest attention of this Court. It is my
understanding of constitutional law and judicial practices related thereto,
however, that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent
with substantive and procedural due process are observed. No doubt no
constitutional right can be sacrificed in the altar of procedural technicalities,
very often fittingly downgraded as niceties but as far as I know, this principle
is applied to annul or set aside final judgments only in cases wherein there is
a possible denial of due process. I have not come across any instance, and
none is mentioned or cited in the well-documented main opinion, wherein a
final and executory judgment has been invalidated and set aside upon the
ground that the same has the effect of sanctioning the violation of a
constitutional right, unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from any
judicial precedent or reason of principle, the main opinion nudely and
unqualifiedly asserts, as if it were universally established and accepted as an
absolute rule, that the violation of a constitutional right divests the court of
jurisdiction; and as a consequence its judgment is null and void and confers
no rights". Chavez vs. Court of Appeals, 24 SCRA 663, which is mentioned
almost in passing, does uphold the proposition that "relief from a criminal
conviction secured at the sacrifice of constitutional liberties, may be
obtained through habeas corpus proceedings even after the finality of the
judgment". And, of course, Chavez is correct; as is also Abriol vs.
Homeres 2 which, in principle, served as its precedent, for the very simple
reason that in both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a witness
for the prosecution; in Abriol, the accused was denied his request to be
allowed to present evidence to establish his defense after his demurrer to
the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those cases
are a far cry from the one now before Us. Here, petitioners do not claim they
were denied due process. Nor do they pretend that in denying their motion
for reconsideration, "the respondent Court of Industrial Relations and private
firm trenched upon any of their constitutional immunities ...," contrary to the
statement to such effect in the main opinion. Indeed, neither in the petition
herein nor in any of the other pleading of petitioners can any direct or
indirect assertion be found assailing the impugned decision of the

respondent court as being null and void because it sanctioned a denial of a


valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be resolved is
whether or not the respondent Courten banc under the facts and
circumstances, should consider the Motion for Reconsideration
filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of certiorari,
humbly beg this Honorable Court to treat this petition under Rule
43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court en banc
of the strict and narrow technical rules of procedure without
taking into account justice, equity and substantial merits of the
case.
On the other hand, the complete argument submitted by
petitioners on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute bargaining in
bad faith? and,
Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith
meriting the dismissal of the persons allegedly responsible
therefore?
2. Was there grave abuse of discretion when the respondent
court refused to act one way or another on the petition for relief
from the resolution of October 9, 1969?
IV

ARGUMENT
The respondent Court erred in finding the petition union guilty of
bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is
country to the evidence on record; that the dismissal of leaders
was discriminatory.
As a result of exercising the constitutional rights of freedom to
assemble and petition the duly constituted authorities for redress
of their grievances, the petitioners were charged and then
condemned of bargaining in bad faith.
The findings that petitioners were guilty of bargaining in bad
faith were not borne out by the records. It was not even alleged
nor proven by evidence. What has been alleged and which the
respondent company tried to prove was that the demonstration
amounted to a strike and hence, a violation of the provisions of
the "no-lockout no strike" clause of the collective bargaining
agreement. However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated categorically:
'The company alleges that the walkout because of
the demonstration is tantamount to a declaration of
a strike. We do not think so, as the same is not
rooted in any industrial dispute although there is a
concerted act and the occurrence of a temporary
stoppage of work.' (Emphasis supplied, p. 4, 5th
paragraph, Decision.)
The respondent court's findings that the petitioner
union bargained in bad faith is not tenable because:
First, it has not been alleged nor proven by the respondent
company; .
Second, before the demonstration, the petitioner union and the
respondent company convened twice in a meeting to thresh out
the matter of demonstration. Petitioners requested that the
employees and workers be excused but the respondent company
instead of granting the request or even settling the matter so

that the hours of work will not be disrupted, immediately


threatened the employees of mass dismissal;
Third, the refusal of the petitioner union to grant the request of
the company that the first shift shall be excluded in the
demonstration is not tantamount to bargaining in bad faith
because the company knew that the officers of the union
belonged to the first shift, and that the union cannot go and lead
the demonstration without their officers. It must be stated that
the company intends to prohibit its officers to lead and join the
demonstration because most of them belonged to the first shift;
and
Fourth, the findings of the respondent court that the
demonstration if allowed will practically give the union the right
to change the working conditions agreed in the CBA is a
conclusion of facts, opinionated and not borne by any evidence
on record. The demonstration did not practically change the
terms or conditions of employment because it was only for one
(1) day and the company knew about it before it went through.
We can even say that it was the company who bargained in bad
faith, when upon representation of the Bureau of Labor not to
dismiss the employees demonstrating, the company tacitly
approved the same and yet while the demonstration was in
progress, the company filed a ULP Charge and consequently
dismissed those who participated.
Records of the case show that more or less 400 members of the
union participated in the demonstration and yet, the respondent
court selected the eight officers to be dismissed from the union
thus losing their status as employees of the respondent
company. The respondent court should have taken into account
that the company's action in allowing the return of more or less
three hundred ninety two (392) employees/members of the union
is an act of condonation and the dismissal of the eight (8) officers
is an act of discrimination (Phil. Air Lines Inc., vs. Phil. Air Lines
Employees Association, G.R. No. L-8197, Oct. 31, 1958).
Seemingly, from the opinion stated in the decision by the court,
while there is a collective bargaining agreement, the union
cannot go on demonstration or go on strike because it will
change the terms and conditions of employment agreed in the
CBA. It follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of a

union to strike as provided for in Republic Act 875. This creates a


bad precedent because it will appear that the rights of the union
is solely dependent upon the CBA.
One of the cardinal primary rights which must be respected in
proceedings before the Court of Industrial Relations is that "the
decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected." (Interstate Commerce Commission vs. L & N R.
Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by
confining the administrative tribunal to the evidence disclosed to
the parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR, G.R. No. L45496, February 27, 1940.)
The petitioners respectfully and humbly submit that there is no
scintilla of evidence to support the findings of the respondent
court that the petitioner union bargained in bad faith. Corollary
therefore, the dismissal of the individual petitioners is without
basis either in fact or in law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have been
guilty of bargaining in bad faith and consequently lost their
status as employees of the respondent company did not meet
the meaning and comprehension of "substantial merits of the
case." Bargaining in bad faith has not been alleged in the
complaint (Annex "C", Petition) nor proven during the hearing of
the can. The important and substantial merit of the case is
whether under the facts and circumstances alleged in
respondent company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike no lock out" clause of the Collective
Bargaining Agreement. Petitioners respectfully reiterate and
humbly submit, that the respondent court had altogether opined
and decided that such demonstration does not amount to a
strike. Hence, with that findings, petitioners should have been
absolved of the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out of
bounds by declaring the petitioners as having "bargained in
faith." The stand of the respondent court is fallacious, as it
follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to


assemble peaceably to air grievances against the duly
constituted authorities as guaranteed in our Constitution is
subject to the limitation of the agreement in the Collective
Bargaining Agreement. The fundamental rights of the petitioners
to free speech and assembly is paramount to the provision in the
Collective Bargaining Agreement and such attempt to override
the constitutional provision would be null and void. These
fundamental rights of the petitioners were not taken into
consideration in the deliberation of the case by the respondent
court;
Thus, it is clear from the foregoing contentions that petitioners are not
raising any issue of due process. They do not posit that the decision of the
industrial court is null and void on that constitutional ground. True it is that
they fault the respondent court for having priced the provisions of the
collective bargaining agreement herein involved over and above their
constitutional right to peaceably assemble and petition for redress of their
grievances against the abuses of the Pasig police, but in no sense at all do
they allege or contend that such action affects its jurisdiction in a manner
that renders the proceedings a nullity. In other words, petitioners themselves
consider the alleged flaw in the court's action as a mere error of judgment
rather than that of jurisdiction which the main opinion projects. For this Court
to roundly and indignantly condemn private respondent now for the grievous
violation of the fundamental law the main opinion sees in its refusal to allow
all its workers to join the demonstration in question, when that specific issue
has not been duly presented to Us and properly argued, is to my mind unfair
and unjust, for the simple reason that the manner this case was brought to
Us does not afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an
error of jurisdiction by finding petitioners guilty of bargaining in bad faith
when the charge against them alleged in the complaint was for having
conducted a mass demonstration, which "amounted to a strike", in violation
of the Collective Bargaining Agreement, but definitely, this jurisdictional
question has no constitutional color. Indeed, We can even assume for the
sake of argument, that the trial judge did err in not giving preferential
importance to the fundamental freedoms invoked by the petitioners over the
management and proprietary attributes claimed by the respondent private
firm still, We cannot rightly hold that such disregard of petitioners'
priceless liberties divested His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions, erroneous or not, become

final after the period fixed by law; litigations would be endless, no questions
would be finally settled; and titles to property would become precarious if
the losing party were allowed to reopen them at any time in the future". 3
I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a
denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned violation
of an ordinary statute than by a misconstrued or constitutional injunction
affecting his individual, freedoms. In both instances, there is injustice which
should be intolerable were it not for the more paramount considerations that
inform the principle of immutability of final judgments. I dare say this must
be the reason why, as I have already noted, the main opinion does not cite
any constitutional provision, law or rule or any judicial doctrine or principle
supporting its basic holding that infringement of constitutional guarantees,
other than denial of due process, divests courts of jurisdiction to render valid
judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education, 4 following Santiago vs. Far Eastern Broadcasting, 5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners have
not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the
main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold that
the erroneous resolution by a court of a constitutional issue not amounting to
a denial of due process renders its judgment or decision null and void, and,
therefore, subject to attack even after said judgment or decision has become
final and executory. I have actually tried to bring myself into agreement with
the views of the distinguished and learned writer of the main opinion, if only
to avoid dissenting from his well prepared thesis, but its obvious incongruity
with settled jurisprudence always comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along
with petitioners under the authority of our constitutionally irreducible
appellate jurisdiction under Section 2(5) of Article VII of the
Philippines 6 (reenacted practically ipssisimis verbis in Section 5(2) of the
1973 Constitution), only to realize upon further reflection that the very power
granted to us to review decisions of lower courts involving questions of

law(and these include constitutional issues not affecting the validity of


statutes, treaty, executive agreement, etc.) is not unqualified but has to be
exercised only in the manner provided in the law of the Rules of Court. In
other words, before We can exercise appellate jurisdiction over constitutional
issues, no matter how important they may be, there must first be a showing
of compliance with the applicable procedural law or rules, among them,
those governing appeals from the Court of Industrial Relations involved
herein. Consequently, if by law or rule, a judgment of the industrial court is
already final and executory, this Court would be devoid of power and
authority to review, much less alter or modify the same, absent any denial of
due process or fatal defect of jurisdiction. It must be borne in mind that the
situation confronting Us now is not merely whether or not We should pass
upon a question or issue not specifically raised by the party concerned,
which, to be sure, could be enough reason to dissuade Us from taking pains
in resolving the same; rather, the real problem here is whether or not We
have jurisdiction to entertain it. And, in this regard, as already stated earlier,
no less than Justice Conrado Sanchez, the writer of Chavez,supra., which is
being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts
of this case, We have no choice but to follow, that is, that in view of
reconsideration but even their argument supporting the same within the
prescribed period, "the judgment (against them)has become final, beyond
recall".
Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness
thereof from the constitutional standpoint, and that in truth, whether or not
they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally as
changeable as the members themselves are changed, I cannot conceive of
anything more pernicious and destructive to a trustful administration of
justice than the idea that, even without any showing of denial of due process
or want of jurisdiction of the court, a final and executory judgment of such
court may still be set aside or reopened in instances other than those
expressly allowed by Rule 38 and that of extrinsic fraud under Article 1146(1)
of the Civil Code. 7 And just to emphasize the policy of the law of respecting
judgments once they have become final, even as this Court has ruled that
final decisions are mute in the presence of fraud which the law abhors,8 it is
only when the fraud is extrinsic and not intrinsic that final and executory
judgments may be set aside, 9 and this only when the remedy is sought
within the prescriptive period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil.
776:
Litigation must end and terminate sometime and somewhere,
and it is essential to an effective and efficient administration of
justice that once a judgment has become final, the winning party
be not, through a mere subterfuge, deprived of the fruits of the
verdict. Courts must therefore guard against any scheme
calculated to bring about that result. Constituted as they are to
put an end to controversies, courts should frown upon any
attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v.
Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at
some definite date fixed by law. The very object for which courts
were instituted was to put an end to controversies. To fulfill this
purpose and to do so speedily, certain time limits, more or less
arbitrary, have to be set up to spur on the slothful. 'If a
vacillating, irresolute judge were allowed to thus keep causes
ever within his power, to determine and redetermine them term
after term, to bandy his judgments about from one party to the
other, and to change his conclusions as freely and as capriciously
as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to
redress.' (See Arnedo vs. Llorente and Liongson (1911), 18 Phil.,
257.).
My disagreement with the dissenters in Republic vs. Judge de los Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and
invulnerability of final judgments but rather on the correct interpretation of
the contents of the judgment in question therein. Relevantly to this case at
bar, I said then:
The point of res adjudicata discussed in the dissents has not
escaped my attention. Neither am I overlooking the point of the
Chief Justice regarding the dangerous and inimical implications of
a ruling that would authorize the revision, amendment or
alteration of a final and executory judgment. I want to emphasize
that my position in this opinion does not detract a whit from the
soundness, authority and binding force of existing doctrines

enjoining any such modifications. The public policy of


maintaining faith and respect in judicial decisions, which inform
said doctrines, is admittedly of the highest order. I am not
advocating any departure from them. Nor am I trying to put forth
for execution a decision that I believe should have been rather
than what it is. All I am doing is to view not the judgment of
Judge Tengco but the decision of this Court in G.R. No. L-20950,
as it is and not as I believe it should have been, and, by opinion, I
would like to guide the court a quo as to what, in my own view, is
the true and correct meaning and implications of decision of this
Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases in
the industrial court, wherein the Court refused to be constrained by technical
rules of procedure in its determination to accord substantial justice to the
parties I still believe in those decisions, some of which were penned by me. I
am certain, however, that in none of those precedents did this Court disturb
a judgment already final and executory. It too obvious to require extended
elucidation or even reference any precedent or authority that the principle of
immutability of final judgments is not a mere technicality, and if it may
considered to be in a sense a procedural rule, it is one that is founded on
public policy and cannot, therefore, yield to the ordinary plea that it must
give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to hold
on, the main opinion goes far as to maintain that the long existing and
constantly applied rule governing the filing of motions for reconsideration in
the Court of Industrial Relations, "as applied in this case does not implement
on reinforce or strengthen the constitutional rights affected, but instead
constricts the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court on Industrial Relations Rule, promulgated
as it was pursuant to mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and the law. A
period of five (5) days within which to file a motion for reconsideration is too
short, especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of
Appeal and the Supreme Court, a period of fifteen (15) days has been fixed
for the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51;
Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial Relations Rule insofar as
circumstances of the instant case are concerned."

I am afraid the zeal and passion of these arguments do not justify the
conclusion suggested. Viewed objectively, it can readily be seen that there
can hardly be any factual or logical basis for such a critical view of the rule in
question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies, within
five (5) days from the date on which he receives notice of the
order or decision, object of the motion for reconsideration, the
same to be verified under oath with respect to the correctness of
the allegations of fact, and serving a copy thereof, personally or
by registered mail, on the adverse party. The latter may file an
answer, in six (6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court,
the movant shall file same within ten (10) days from the date of
the filing of his motion for reconsideration. The adverse party
shall also file his answer within ten (10) days from the receipt by
him of a copy of the arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or after ten
(10) days from the receipt of the arguments in support of said
motion having been filed, the motion shall be deemed submitted
for resolution of the Court in banc, unless it is considered
necessary to bear oral arguments, in which case the Court shall
issue the corresponding order or notice to that effect.
Failure to observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or striking
out of the answer and/or the supporting arguments, as the case
may be. (As amended April 20, 1951, Court of Industrial
Relations.).
As implemented and enforced in actual practice, this rule, as everyone
acquainted with proceedings in the industrial court well knows, precisely
permits the party aggrieved by a judgment to file no more than a pro-forma
motion for reconsideration without any argument or lengthy discussion and
with barely a brief statement of the fundamental ground or grounds therefor,
without prejudice to supplementing the same by making the necessary
exposition, with citations laws and authorities, in the written arguments the

be filed (10) days later. In truth, such a pro-forma motion has to effect of just
advising the court and the other party that the movant does not agree with
the judgment due to fundamental defects stated in brief and general terms.
Evidently, the purpose of this requirement is to apprise everyone concerned
within the shortest possible time that a reconsideration is to sought, and
thereby enable the parties concerned to make whatever adjustments may be
warranted by the situation, in the meanwhile that the litigation is prolonged.
It must borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might
require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the
case be known to the other so that both avenues for earlier settlement may,
if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is
short or inadequate. In fact, the motion filed petitioners was no more than
the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to this
Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable Court dated
September 17, 1969 on the ground that the same is not in
accordance with law, evidence and facts adduced during the
hearing of the above entitled case.
Movant-respondents most respectfully move for leave to file their
respective arguments within ten (10) days pursuant to Section
15, 16 & 17 as amended of the Rules of Court.
WHEREFORE, it is respectfully prayed that this Motion for
Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the filing
of such a motion is to me simply incomprehensible. What worse
in this case is that petitioners have not even taken the trouble of
giving an explanation of their inability to comply with the rule.
Not only that, petitioners were also late five (5) days in filing
their written arguments in support of their motion, and, the only
excuse offered for such delay is that both the President of the

Union and the office clerk who took charge of the matter forgot
to do what they were instructed to do by counsel, which,
according to this Court, as I shall explain anon "is the most
hackneyed and habitual subterfuge employed by litigants who
fail to observe the procedural requirements prescribed by the
Rules of Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet,
very indignantly, the main opinion would want the Court to
overlook such nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules fixing
periods for the finality of judgments are in a sense more substantive than
procedural in their real nature, for in their operation they have the effect of
either creating or terminating rights pursuant to the terms of the particular
judgment concerned. And the fact that the court that rendered such final
judgment is deprived of jurisdiction or authority to alter or modify the same
enhances such substantive character. Moreover, because they have the
effect of terminating rights and the enforcement thereof, it may be said that
said rules partake of the nature also of rules of prescription, which again are
substantive. Now, the twin predicates of prescription are inaction or
abandonment and the passage of time or a prescribed period. On the other
hand, procrastination or failure to act on time is unquestionably a form of
abandonment, particularly when it is not or cannot be sufficiently explained.
The most valuable right of a party may be lost by prescription, and be has no
reason to complain because public policy demands that rights must be
asserted in time, as otherwise they can be deemed waived.
I see no justification whatsoever for not applying these self-evident principles
to the case of petitioners. Hence, I feel disinclined to adopt the suggestion
that the Court suspend, for the purposes of this case the rules aforequoted of
the Court of Industrial Relations. Besides, I have grave doubts as to whether
we can suspend rules of other courts, particularly that is not under our
supervisory jurisdiction, being administrative agency under the Executive
Department Withal, if, in order to hasten the administration of substance
justice, this Court did exercise in some instances its re power to amend its
rules, I am positively certain, it has done it for the purpose of reviving a case
in which the judo has already become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in a
belated effort to salvage their Petitioners filed in the industrial court on
October 31, 1969 a Petition for relief alleging that their failure to file
"Arguments in Support of their Motion for Reconsideration within the
reglementary period or five (5), if not seven (7), days late "was due to
excusable negligence and honest mistake committed by the President of the

respondent Union and on office clerk of the counsel for respondents as


shown attested in their respective affidavits", (See Annexes K, and K-2) which
in brief, consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of the said
office employee having also coincidentally forgotten "to do the work
instructed (sic) to (him) by Atty. Osorio" because he "was busy with clerical
jobs". No sympathy at all can be evoked these allegations, for, under
probably more justification circumstances, this Court ruled out a similar
explanation previous case this wise:
We find merit in PAL's petition. The excuse offered respondent
Santos as reason for his failure to perfect in due time appeal
from the judgment of the Municipal Court, that counsel's clerk
forgot to hand him the court notice, is the most hackneyed and
habitual subterfuge employed by litigants who fail to observe
procedural requirements prescribed by the Rules of Court. The
uncritical acceptance of this kind of common place excuses, in
the face of the Supreme Court's repeated rulings that they are
neither credible nor constitutive of excusable negligence
(Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs. Judge
Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion.
(Philippine Air Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought to
be reviewed in the present case has already become final and executory,
nay, not without the fault of the petitioners, hence, no matter how erroneous
from the constitutional viewpoint it may be, it is already beyond recall, I vote
to dismiss this case, without pronouncement as to costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacaang on March 4,
1969 in protest against alleged abuses of the Pasig police department, upon
two days' prior notice to respondent employer company, as against the
latter's insistence that the first shift 1 should not participate but instead
report for work, under pain of dismissal, the industrial court ordered the
dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on respondent's
complaint of bargaining in bad faith and unfair labor practice for having so
carried out the mass demonstration, notwithstanding that it concededly

was nota declaration of strike nor directed in any manner against respondent
employer, and ordering the dismissal of the union office manifestly
constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor practice
since respondent firm conceded that "the demonstration is an inalienable
right of the union guaranteed' by the Constitution" and the union up to the
day of the demonstration pleaded by cablegram to the company to excuse
the first shift and allow it to join the demonstration in accordance with their
previous requests.
Neither could there be, in law, a willful violation of the collective bargaining
agreement's "no-strike" clause as would warrant the union leaders' dismissal,
since as found by respondent court itself the mass demonstration was not a
declaration of a strike, there being no industrial dispute between the
protagonists, but merely the occurrence of a temporary stoppage of work" to
enable the workers to exercise their constitutional rights of free expression,
peaceable assembly and petition for redress of grievance against alleged
police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for
reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of
petitioners' counsel and/or the union president should likewise be set aside
as a manifest act of grave abuse of discretion. Petitioners' petition for relief
from the normal adverse consequences of the late filing of their motion for
reconsideration due to such negligence which was not acted upon by
respondent court should have been granted, considering the monstrous
injustice that would otherwise be caused the petitioners through their
summary dismissal from employment, simply because they sought in good
faith to exercise basic human rights guaranteed them by the Constitution. It
should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the
main opinion's premise that its insistence on dismissal of the union leaders
for having included the first shift workers in the mass demonstration against
its wishes was but an act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners
and the constitutional injunction to afford protection to labor be given true
substance and meaning. No person may be deprived of such basic rights
without due process which is but "responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness is
ruled out and unfairness avoided ... Due process is thus hostile to any official

action marred by lack of reasonableness. Correctly it has been identified as


freedom from arbitrariness." 2
Accordingly, I vote for the setting aside of the appealed orders of the
respondent court and concur in the judgment for petitioners as set forth in
the main opinion.
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM,
INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President , MELQUIADES P. DE LA CRUZ,
in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a
right recognized in Section 6, Article IV of the 1973 Philippine
Constitution, 1 as well as the principle that laws to be valid and enforceable
must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent
public officials to publish, and/or cause the publication in the Official Gazette
of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative
orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326,
337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445,
447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,

1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130,
136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199,
202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241245, 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, 438440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587,
594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702,
712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
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,
788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39,
50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380433, 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 recordsno 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.
G.R. No. L-45987

May 5, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
CAYAT, defendant-appellant.
Sinai Hamada y Cario for appellant.
Office of the Solicitor-General Tuason for appellee.
MORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat,
a native of Baguio, Benguet, Mountain Province, was sentenced by the
justice of the peace court of Baguio to pay a fine of five pesos (P5) or suffer
subsidiary imprisonment in case of insolvency. On appeal of the Court of First
Instance, the following information was filed against him:
That on or about the 25th day of January, 1937, in the City of Baguio,
Commonwealth of the Philippines, and within the jurisdiction of this
court, the above-named accused, Cayat, being a member of the nonChristian tribes, did then and there willfully, unlawfully, and illegally
receive, acquire, and have in his possession and under his control or
custody, one bottle of A-1-1 gin, an intoxicating liquor, other than the
so-called native wines and liquors which the members of such tribes
have been accustomed themselves to make prior to the passage of Act
No. 1639.
Accused interposed a demurrer which was overruled. At the trial, he
admitted all the facts alleged in the information, but pleaded not guilty to the
charge for the reasons adduced in his demurrer and submitted the case on
the pleadings. The trial court found him guilty of the crime charged and
sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary
imprisonment in case of insolvency. The case is now before this court on
appeal. Sections 2 and 3 of Act No. 1639 read:

SEC. 2. It shall be unlawful for any native of the Philippine Islands who
is a member of a non-Christian tribe within the meaning of the Act
Numbered Thirteen hundred and ninety-seven, to buy, receive, have in
his possession, or drink any ardent spirits, ale, beer, wine, or
intoxicating liquors of any kind, other than the so-called native wines
and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of this Act, except as
provided in section one hereof; and it shall be the duty of any police
officer or other duly authorized agent of the Insular or any provincial,
municipal or township government to seize and forthwith destroy any
such liquors found unlawfully in the possession of any member of a
non-Christian tribe.
SEC. 3. Any person violating the provisions of section one or section
two of this Act shall, upon conviction thereof, be punishable for each
offense by a fine of not exceeding two hundred pesos or by
imprisonment for a term not exceeding six months, in the discretion of
the court.
The accused challenges the constitutionality of the Act on the following
grounds:
(1) That it is discriminatory and denies the equal protection of the laws;
(2) That it is violative of the due process clause of the Constitution: and.
(3) That it is improper exercise of the police power of the state.
Counsel for the appellant holds out his brief as the "brief for the nonChristian tribes." It is said that as these less civilized elements of the Filipino
population are "jealous of their rights in a democracy," any attempt to treat
them with discrimination or "mark them as inferior or less capable rate or
less entitled" will meet with their instant challenge. As the constitutionality of
the Act here involved is questioned for purposes thus mentioned, it becomes
imperative to examine and resolve the issues raised in the light of the policy
of the government towards the non-Christian tribes adopted and consistently
followed from the Spanish times to the present, more often with sacrifice and
tribulation but always with conscience and humanity.
As early as 1551, the Spanish Government had assumed an unvarying
solicitous attitude toward these inhabitants, and in the different laws of the
Indies, their concentration in so-called "reducciones" (communities) have
been persistently attempted with the end in view of according them the

"spiritual and temporal benefits" of civilized life. Throughout the Spanish


regime, it had been regarded by the Spanish Government as a sacred "duty
to conscience and humanity" to civilize these less fortunate people living "in
the obscurity of ignorance" and to accord them the "the moral and material
advantages" of community life and the "protection and vigilance afforded
them by the same laws." (Decree of the Governor-General of the Philippines,
Jan. 14, 1887.) This policy had not been deflected from during the American
period. President McKinley in his instructions to the Philippine Commission of
April 7, 1900, said:
In dealing with the uncivilized tribes of the Islands, the Commission
should adopt the same course followed by Congress in permitting the
tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes
are now living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal government
should, however, be subjected to wise and firm regulation; and,
without undue or petty interference, constant and active effort should
be exercised to prevent barbarous practices and introduce civilized
customs.
Since then and up to the present, the government has been constantly vexed
with the problem of determining "those practicable means of bringing about
their advancement in civilization and material prosperity." (See, Act No. 253.)
"Placed in an alternative of either letting them alone or guiding them in the
path of civilization," the present government "has chosen to adopt the latter
measure as one more in accord with humanity and with the national
conscience." (Memorandum of Secretary of the Interior, quoted in
Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this end, their
homes and firesides have been brought in contact with civilized communities
through a network of highways and communications; the benefits of public
education have to them been extended; and more lately, even the right of
suffrage. And to complement this policy of attraction and assimilation, the
Legislature has passed Act No. 1639 undoubtedly to secure for them the
blessings of peace and harmony; to facilitate, and not to mar, their rapid and
steady march to civilization and culture. It is, therefore, in this light that the
Act must be understood and applied.
It is an established principle of constitutional law that the guaranty of the
equal protection of the laws is not equal protection of the laws is not violated
by a legislation based on reasonable classification. And the classification, to
be reasonable, (1) must rest on substantial distinctions; (2) must be germane
to the purposes of the law; (3) must not be limited to existing conditions

only; and (4) must apply equally to all members of the same class.
(Borgnisvs. Falk Co., 133 N.W., 209; Lindsley vs. Natural Carbonic Gas Co.,
220 U.S. 61; 55 Law. ed., Rubi vs. Provincial Board of Mindoro, 39 Phil., 660;
People and Hongkong & Shanghai Banking Corporation vs. Vera and Cu
Unjieng, 37 Off. Gaz ., 187.)
Act No. 1639 satisfies these requirements. The classification rests on real and
substantial, not merely imaginary or whimsical, distinctions. It is not based
upon "accident of birth or parentage," as counsel to the appellant asserts,
but upon the degree of civilization and culture. "The term 'non-Christian
tribes' refers, not to religious belief, but, in a way, to the geographical area,
and, more directly, to natives of the Philippine Islands of a low grade of
civilization, usually living in tribal relationship apart from settled
communities." (Rubi vs. Provincial Board of Mindoro, supra.) This distinction
is unquestionably reasonable, for the Act was intended to meet the peculiar
conditions existing in the non-Christian tribes. The exceptional cases of
certain members thereof who at present have reached a position of cultural
equality with their Christian brothers, cannot affect the reasonableness of
the classification thus established.
That it is germane to the purposes of law cannot be doubted. The prohibition
"to buy, receive, have in his possession, or drink any ardent spirits, ale, beer,
wine, or intoxicating liquors of any kind, other than the so-called native
wines and liquors which the members of such tribes have been accustomed
themselves to make prior to the passage of this Act.," is unquestionably
designed to insure peace and order in and among the non-Christian tribes. It
has been the sad experience of the past, as the observations of the lower
court disclose, that the free use of highly intoxicating liquors by the nonChristian tribes have often resulted in lawlessness and crimes, thereby
hampering the efforts of the government to raise their standard of life and
civilization.
The law is not limited in its application to conditions existing at the time of its
enactment. It is intended to apply for all times as long as those conditions
exist. The Act was not predicated, as counsel for appellant asserts, upon the
assumption that the non-Christians are "impermeable to any civilizing
influence." On the contrary, the Legislature understood that the civilization of
a people is a slow process and that hand in hand with it must go measures of
protection and security.
Finally, that the Act applies equally to all members of the class is evident
from a perusal thereof. That it may be unfair in its operation against a certain

number non-Christians by reason of their degree of culture, is not an


argument against the equality of its application.
Appellants contends that that provision of the law empowering any police
officer or other duly authorized agent of the government to seize and
forthwith destroy any prohibited liquors found unlawfully in the possession of
any member of the non-Christian tribes is violative of the due process of law
provided in the Constitution. But this provision is not involved in the case at
bar. Besides, to constitute due process of law, notice and hearing are not
always necessary. This rule is especially true where much must be left to the
discretion of the administrative officials in applying a law to particular cases.
(McGehee, Due Process of Law p. 371, cited with approval in
Rubivs. Provincial Board of Mindoro, supra.) Due process of law means
simply: (1) that there shall be a law prescribed in harmony with the general
powers of the legislative department of the government; (2) that it shall be
reasonable in its operation; (3) that it shall be enforced according to the
regular methods of procedure prescribed; and (4) that it shall be applicable
alike to all citizens of the state or to all of the class. (U.S. vs. Ling Su Fan, 10
Phil., 104, affirmed on appeal by the United States Supreme Court, 218 U.S.,
302: 54 Law. ed., 1049.) Thus, a person's property may be seized by the
government in payment of taxes without judicial hearing; or property used in
violation of law may be confiscated (U.S. vs. Surla, 20 Phil., 163, 167), or
when the property constitutes corpus delicti, as in the instant case
(Moreno vs. Ago Chi, 12 Phil., 439, 442).
Neither is the Act an improper exercise of the police power of the state. It
has been said that the police power is the most insistent and least limitable
of all powers of the government. It has been aptly described as a power coextensive with self-protection and constitutes the law of overruling necessity.
Any measure intended to promote the health, peace, morals, education and
good order of the people or to increase the industries of the state, develop
its resources and add to its wealth and prosperity (Barbier vs. Connolly, 113
U.S., 27), is a legitimate exercise of the police power, unless shown to be
whimsical or capricious as to unduly interfere with the rights of an individual,
the same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and order in the
non-Christian tribes so as to remove all obstacles to their moral and
intellectual growth and, eventually, to hasten their equalization and
unification with the rest of their Christian brothers. Its ultimate purpose can
be no other than to unify the Filipino people with a view to a greater
Philippines.

The law, then, does not seek to mark the non-Christian tribes as "an inferior
or less capable race." On the contrary, all measures thus far adopted in the
promotion of the public policy towards them rest upon a recognition of their
inherent right to equality in tht enjoyment of those privileges now enjoyed by
their Christian brothers. But as there can be no true equality before the law,
if there is, in fact, no equality in education, the government has endeavored,
by appropriate measures, to raise their culture and civilization and secure for
them the benefits of their progress, with the ultimate end in view of placing
them with their Christian brothers on the basis of true equality. It is indeed
gratifying that the non-Christian tribes "far from retrograding, are definitely
asserting themselves in a competitive world," as appellant's attorney
impressively avers, and that they are "a virile, up-and -coming people eager
to take their place in the world's social scheme." As a matter of fact, there
are now lawyers, doctors and other professionals educated in the best
institutions here and in America. Their active participation in the multifarious
welfare activities of community life or in the delicate duties of government is
certainly a source of pride and gratification to people of the Philippines. But
whether conditions have so changed as to warrant a partial or complete
abrogation of the law, is a matter which rests exclusively within the
prerogative of the National Assembly to determine. In the constitutional
scheme of our government, this court can go no farther than to inquire
whether the Legislature had the power to enact the law. If the power exists,
and we hold it does exist, the wisdom of the policy adopted, and the
adequacy under existing conditions of the measures enacted to forward it,
are matters which this court has no authority to pass upon. And, if in the
application of the law, the educated non-Christians shall incidentally suffer,
the justification still exists in the all-comprehending principle of salus populi
suprema est lex. When the public safety or the public morals require the
discontinuance of a certain practice by certain class of persons, the hand of
the Legislature cannot be stayed from providing for its discontinuance by any
incidental inconvenience which some members of the class may suffer. The
private interests of such members must yield to the paramount interests of
the nation (Cf. Boston Beer Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989).
Judgment is affirmed, with costs against appellant.
G.R. No. L-23794

February 17, 1968

ORMOC SUGAR COMPANY, INC., plaintiff-appellant,


vs.
THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC
CITY, HON. ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC
CITY, defendants-appellees.

Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon &
Taada for plaintiff-appellant.
Ramon O. de Veyra for defendants-appellees.
BENGZON, J.P., J.:
On January 29, 1964, the Municipal Board of Ormoc City
passed 1 Ordinance No. 4, Series of 1964, imposing "on any and all
productions of centrifugal sugar milled at the Ormoc Sugar Company, Inc., in
Ormoc City a municipal tax equivalent to one per centum (1%) per export
sale to the United States of America and other foreign countries." 2
Payments for said tax were made, under protest, by Ormoc Sugar
Company, Inc. on March 20, 1964 for P7,087.50 and on April 20, 1964 for
P5,000, or a total of P12,087.50.
On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of
First Instance of Leyte, with service of a copy upon the Solicitor General, a
complaint 3 against the City of Ormoc as well as its Treasurer, Municipal
Board and Mayor, alleging that the afore-stated ordinance is unconstitutional
for being violative of the equal protection clause (Sec. 1[1], Art. III,
Constitution) and the rule of uniformity of taxation (Sec. 22[1]), Art. VI,
Constitution), aside from being an export tax forbidden under Section 2287
of the Revised Administrative Code. It further alleged that the tax is neither a
production nor a license tax which Ormoc City under Section 15-kk of its
charter and under Section 2 of Republic Act 2264, otherwise known as the
Local Autonomy Act, is authorized to impose; and that the tax amounts to a
customs duty, fee or charge in violation of paragraph 1 of Section 2 of
Republic Act 2264 because the tax is on both the sale and export of sugar.
Answering, the defendants asserted that the tax ordinance was within
defendant city's power to enact under the Local Autonomy Act and that the
same did not violate the afore-cited constitutional limitations. After pre-trial
and submission of the case on memoranda, the Court of First Instance, on
August 6, 1964, rendered a decision that upheld the constitutionality of the
ordinance and declared the taxing power of defendant chartered city
broadened by the Local Autonomy Act to include all other forms of taxes,
licenses or fees not excluded in its charter.
Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar
Company, Inc. Appellant alleges the same statutory and constitutional
violations in the aforesaid taxing ordinance mentioned earlier.

Section 1 of the ordinance states: "There shall be paid to the City


Treasurer on any and all productions of centrifugal sugar milled at the Ormoc
Sugar Company, Incorporated, in Ormoc City, a municipal tax equivalent to
one per centum (1%) per export sale to the United States of America and
other foreign countries." Though referred to as a tax on the export of
centrifugal sugar produced at Ormoc Sugar Company, Inc. For production of
sugar alone is not taxable; the only time the tax applies is when the sugar
produced is exported.
Appellant questions the authority of the defendant Municipal Board to
levy such an export tax, in view of Section 2287 of the Revised
Administrative Code which denies from municipal councils the power to
impose an export tax. Section 2287 in part states: "It shall not be in the
power of the municipal council to impose a tax in any form whatever, upon
goods and merchandise carried into the municipality, or out of the same, and
any attempt to impose an import or export tax upon such goods in the guise
of an unreasonable charge for wharfage use of bridges or otherwise, shall be
void."
Subsequently, however, Section 2 of Republic Act 2264 effective June
19, 1959, gave chartered cities, municipalities and municipal districts
authority to levy for public purposes just and uniform taxes, licenses or fees.
Anent the inconsistency between Section 2287 of the Revised Administrative
Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v.
Municipality of Roxas 4 held the former to have been repealed by the latter.
And expressing Our awareness of the transcendental effects that municipal
export or import taxes or licenses will have on the national economy, due to
Section 2 of Republic Act 2264, We stated that there was no other alternative
until Congress acts to provide remedial measures to forestall any
unfavorable results.
The point remains to be determined, however, whether constitutional
limits on the power of taxation, specifically the equal protection clause and
rule of uniformity of taxation, were infringed.
The Constitution in the bill of rights provides: ". . . nor shall any person
be denied the equal protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs.
Salas, 5 We ruled that the equal protection clause applies only to persons or
things identically situated and does not bar a reasonable classification of the
subject of legislation, and a classification is reasonable where (1) it is based
on substantial distinctions which make real differences; (2) these are
germane to the purpose of the law; (3) the classification applies not only to
present conditions but also to future conditions which are substantially

identical to those of the present; (4) the classification applies only to those
who belong to the same class.
A perusal of the requisites instantly shows that the questioned
ordinance does not meet them, for it taxes only centrifugal sugar produced
and exported by the Ormoc Sugar Company, Inc. and none other. At the time
of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true,
was the only sugar central in the city of Ormoc. Still, the classification, to be
reasonable, should be in terms applicable to future conditions as well. The
taxing ordinance should not be singular and exclusive as to exclude any
subsequently established sugar central, of the same class as plaintiff, for the
coverage of the tax. As it is now, even if later a similar company is set up, it
cannot be subject to the tax because the ordinance expressly points only to
Ormoc City Sugar Company, Inc. as the entity to be levied upon.
Appellant, however, is not entitled to interest; on the refund because
the taxes were not arbitrarily collected (Collector of Internal Revenue v.
Binalbagan). 6 At the time of collection, the ordinance provided a sufficient
basis to preclude arbitrariness, the same being then presumed constitutional
until declared otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the
challenged ordinance is declared unconstitutional and the defendantsappellees are hereby ordered to refund the P12,087.50 plaintiff-appellant
paid under protest. No costs. So ordered.

[G.R. Nos. 132875-76. November 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G.


JALOSJOS, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
This Court has declared that the state policy on the heinous offense of
rape is clear and unmistakable. Under certain circumstances, some of them
present in this case, the offender may be sentenced to a long period of
confinement, or he may suffer death. The crime is an assault on human
dignity. No legal system worthy of the name can afford to ignore the

traumatic consequences for the unfortunate victim and grievous injury to the
peace and good order of the community.[1]
Rape is particularly odious, one which figuratively scrapes the bottom of
the barrel of moral depravity, when committed against a minor.[2]
In view of the intrinsic nature of the crime of rape where only two persons
are usually involved, the testimony of the complainant is always scrutinized
with extreme caution.[3]
In the present case, there are certain particulars which impelled the court
to devote an even more painstaking and meticulous examination of the facts
on record and a similarly conscientious evaluation of the arguments of the
parties. The victim of rape in this case is a minor below twelve (12) years of
age. As narrated by her, the details of the rape are mesmerically sordid and
repulsive. The victim was peddled for commercial sex by her own guardian
whom she treated as a foster father. Because the complainant was a willing
victim, the acts of rape were preceded by several acts of lasciviousness on
distinctly separate occasions. The accused is also a most unlikely rapist. He
is a member of Congress. Inspite of his having been charged and convicted
by the trial court for statutory rape, his constituents liked him so much that
they knowingly re-elected him to his congressional office, the duties of which
he could not perform.
Statutory rape committed by a distinguished Congressman on an eleven
(11) year old commercial sex worker is bound to attract widespread media
and public attention. In the words of accused-appellant, he has been
demonized in the press most unfairly, his image transmogrified into that of a
dastardly, ogre, out to get his slimy hands on innocent and nave girls to
satiate his lustful desires.[4] This Court, therefore, punctiliously considered
accused-appellants claim that he suffered invidiously discriminatory
treatment. Regarding the above allegation, the Court has ascertained that
the extensive publicity generated by the case did not result in a mistrial; the
records show that the accused had ample and free opportunity to adduce his
defenses.
This is an appeal from the decision [5] of the Regional Trial Court of Makati,
Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting accusedappellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal
Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, for
six (6) counts of acts of lasciviousness defined and penalized under Article
336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No.
7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 961995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was
acquitted of the charges of acts of lasciviousness for failure of the
prosecution to prove his guilt beyond reasonable doubt.

On December 16, 1996, two (2) informations for the crime of statutory
rape; and twelve (12) for acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic
Act No. 7610, were filed against accused-appellant. The accusatory portion of
said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven
(11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the
crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal
Code, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge with(sic) eleven year old minor Rosilyn Delantar against her will,
with damage and prejudice.
CONTRARY TO LAW.[6]
In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party, eleven
(11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the
crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal
Code, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have carnal
knowledge with(sic) eleven year old minor Rosilyn Delantar against her will,
with damage and prejudice.
CONTRARY TO LAW.[7]
For acts of lasciviousness, the informations[8] under which accusedappellant was convicted were identical except for the different dates of
commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996;
June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party, eleven
(11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the
crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of
Republic Act No. 7610, otherwise known as the Special Protection of Children
against Abuse, Exploitation and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz
Towers, Makati City, Metro-Manila and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design, did then and
there wilfully, unlawfully and feloniously kiss, caress and fondle said
complainant's face, lips, neck, breasts, whole body, and vagina, suck her
nipples and insert his finger and then his tongue into her vagina, place
himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her
damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added
averments that on the different dates, the accused gave the complainant
P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to
enter a plea. Hence, the trial court entered a plea of not guilty for him. At the
trial, the prosecution presented eight (8) main witnesses and seven (7)
rebuttal witnesses as well as documentary evidences marked as Exhibits A to
EEEE, inclusive of submarkings. The defense, on the other hand presented
twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to
153, inclusive of submarkings.The records of the case are extremely
voluminous.
The Peoples version of the facts, culled mainly from the testimony of the
victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight
black hair and almond-shaped black eyes. She grew up in a two-storey
apartment in Pasay City under the care of Simplicio Delantar, whom she
treated as her own father. Simplicio was a fifty-six year old homosexual
whose ostensible source of income was selling longganiza and tocino and
accepting boarders at his house. On the side, he was also engaged in the
skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger
brother, Shandro, who was also under the care of Simplicio. At a very young
age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to
his illicit activities. She and her brother would tag along with Simplicio
whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn
was offered by Simplicio as a prostitute to an Arabian national known as Mr.
Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for
sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in
February 1996 at his office located near Robinsons Galleria. Rosilyn and
Simplicio were brought there and introduced by a talent manager by the

name of Eduardo Suarez.Accused-appellant promised to help Rosilyn become


an actress. When he saw Rosilyn, accused-appellant asked how old she
was. Simplicio answered, 10. She is going to be 11 on May 11. Accusedappellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing,
so she sang the song, Tell Me You Love Me. Accused-appellant then asked if
Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked
if she was already menstruating, and Simplicio said yes. Accused-appellant
further inquired if Rosilyn already had breasts. When nobody answered,
accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant
assured them that he would help Rosilyn become an actress as he was one of
the producers of the TV programs, Valiente and Eat Bulaga.
Simplicio and Suarez then discussed the execution of a contract for
Rosilyns movie career. Accused-appellant, on the other hand, said that he
would adopt Rosilyn and that the latter would have to live with him in his
condominium at the Ritz Towers. Before Simplicio and Rosilyn went home,
accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium
unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and
Simplicio discussed the contract and his plan to finance Rosilyns
studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn,
Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at
Ritz Towers to discuss her acting career. Accused-appellant referred the
preparation of Rosilyns contract to his lawyer, who was also present. After
the meeting, Simplicio and Rosilyn left. As they were walking towards the
elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn
returned to accused-appellants condominium unit at Ritz Towers. When
accused-appellant came out of his bedroom, Simplicio told Rosilyn to go
inside the bedroom, while he and accused-appellant stayed outside. After a
while, accused-appellant entered the bedroom and found Rosilyn watching
television. He walked towards Rosilyn and kissed her on the lips, then left the
room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio
that accused-appellant kissed her to which Simplicio replied, Halik lang
naman.
Rosilyn was left alone in the bedroom watching television. After some
time, accused-appellant came in and entered the bathroom. He came out
clad in a long white T-shirt on which was printed the word, Dakak. In his hand
was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to
change her clothes. Rosilyn protested and told accused-appellant that she
can do it herself, but accused-appellant answered, Daddy mo naman
ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was
about to take off her panties, Rosilyn said, Huwag po. Again, accused-

appellant told her, After all, I am your Daddy. Accused-appellant then


removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accusedappellant turned off the lamp and the television. He turned to Rosilyn and
kissed her lips. He then raised her shirt, touched her breasts and inserted his
finger into her vagina. Rosilyn felt pain and cried out, Tama na po. Accusedappellant stopped. He continued to kiss her lips and fondle her
breasts. Later, accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant
whom she found bent over and kissing her. He told her to get up, took her
hand and led her to the bathroom. He removed Rosilyns shirt and gave her a
bath. While accused-appellant rubbed soap all over Rosilyns body, he
caressed her breasts and inserted his finger into her vagina. After that, he
rinsed her body, dried her with a towel and applied lotion on her arms and
legs. Then, he dried her hair and told her to dress up. Rosilyn put on her
clothes and went out of the bathroom, while accused-appellant took a
shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom
watching television. When accused-appellant entered the room, he knelt in
front of her, removed her panties and placed her legs on his shoulders. Then,
he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00
and told his housemaid to take her shopping at Shoemart. When she
returned to the Ritz Towers, Simplicio was waiting for her. The two of them
went home. Rosilyn narrated to Simplicio what accused-appellant did to her,
and pleaded for him not to bring her back to the Ritz Towers. Simplicio told
her that everything was alright as long as accused-appellant does not have
sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio
again brought Rosilyn to the Ritz Towers. After Simplicio left, accusedappellant removed Rosilyns clothes and dressed her with the same long Tshirt. They watched television for a while, then accused-appellant sat beside
Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt
above her breasts, and inserted his finger into her vagina. Then, accusedappellant removed his own clothes, placed his penis between Rosilyns thighs
and made thrusting motions until he ejaculated on her thighs. Thereafter,
accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep
and bathed her. Again, he rubbed soap all over her body, washed her hair,
and thereafter rinsed her body and dried her hair. While accused-appellant
was bathing Rosilyn, he asked her to fondle his penis while he caressed her
breasts and inserted his finger into her vagina. After their shower, accusedappellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait
for Simplicio in the condominium unit. On their way home, Simplicio told

Rosilyn that if accused-appellant tries to insert his penis into her vagina, she
should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the
Ritz Towers. They found accused-appellant sitting on the bed in his
bedroom. Simplicio told Rosilyn to approach accused-appellant, then he
left. Accused-appellant took off Rosilyns clothes and dressed her with a long
T-shirt on which was printed a picture of accused-appellant and a woman,
with the caption, Cong. Jalosjos with his Toy. They watched television for a
while, then accused-appellant lay beside Rosilyn and kissed her on the
lips. He raised her shirt and parted her legs. He positioned himself between
the spread legs of Rosilyn, took off his own shirt, held his penis, and poked
and pressed the same against Rosilyns vagina. This caused Rosilyn pain
inside her sex organ. Thereafter, accused-appellant fondled her breasts and
told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accusedappellant was no longer around but she found P5,000.00 on the table. Earlier
that morning, she had felt somebody touching her private parts but she was
still too sleepy to find out who it was. Rosilyn took a bath, then went off to
school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21,
1996, at about 9:00 oclock in the evening in his bedroom at the Ritz
Towers. Accused-appellant stripped her naked and again put on her the long
shirt he wanted her to wear. After watching television for a while, accusedappellant knelt beside Rosilyn, raised her shirt, caressed her breasts and
inserted his finger into her vagina. Then, he clipped his penis between
Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter,
Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant
who was kissing her and fondling her sex organ. She, however, ignored him
and went back to sleep. When she woke up, she found the P5,000.00 which
accused-appellant left and gave the same to Simplicio Delantar, when the
latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit,
accused-appellant took photographs of Rosilyn. He asked her to pose with
her T-shirt pulled down thereby exposing her breasts. He also took her
photographs with her T-shirt rolled up to the pelvis but without showing her
pubis, and finally, while straddled on a chair facing the backrest, showing her
legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled
her breasts and inserted his finger into her vagina. The following morning,
she woke up and found the P5,000.00 left by accused-appellant on the
table. She recalled that earlier that morning, she felt somebody caressing her
breasts and sex organ.

On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz
Towers. Rosilyn had to wait for accused-appellant, who arrived between
12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to
what he was wearing. While sitting on the bed, accused-appellant kissed her
lips and inserted his tongue into her mouth. He then fondled her breasts and
inserted his finger into her vagina, causing her to cry in pain. Accusedappellant stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped
her body, he fondled her breasts and inserted his finger in her
vagina. Rosilyn felt pain and shoved his hand away. After bathing her,
accused-appellant had breakfast.Before he left, he gave Rosilyn
P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and
then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz
Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns
clothes, including her panties, and dressed her with a long T-shirt similar to
what he was wearing.After watching television, accused-appellant kissed
Rosilyn on the lips, inserted his tongue in her mouth and fondled her
breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and
placed a pillow under her back. He inserted his finger in her vagina and
mounted himself between her legs with his hands rested on her sides. After
that, he lifted his shirt, then pointed and pressed his penis against her
vagina. Accused-appellant made thrusting motions, which caused Rosilyn
pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her
sex organ, but she did not wake up. When she woke up later, she found
P5,000.00 on the table, and she gave this to Simplicio when he came to fetch
her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at
around 7:00 p.m. Accused-appellant was about to leave, so he told them to
come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie
Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City
Police, where she executed a sworn statement against Simplicio
Delantar. Rosilyn was thereafter taken to the custody of the Department of
Social Welfare and Development (DSWD). The National Bureau of
Investigation (NBI) conducted an investigation, which eventually led to the
filing of criminal charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at
Camp Crame. The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are
conical with pinkish brown areola and nipples from which no secretions could
be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and
coaptated with the pinkish brown labia minora presenting in between. On
separating the same disclosed an elastic, fleshy type hymen, with shallow
healed laceration at 3 o'clock position and deep healed laceration at 8
o'clock position. External vaginal orifice offers moderate resistance to the
introduction of the examining index finger and the virgin sized vaginal
speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm
and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence. [9]
During the trial, accused-appellant raised the defense of denial and
alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom
Rosilyn had met, once at accused-appellants Dakak office and twice at the
Ritz Towers. Accused-appellant insisted that he was in the province on the
dates Rosilyn claimed to have been sexually abused. He attributed the filing
of the charges against him to a small group of blackmailers who wanted to
extort money from him, and to his political opponents, particularly ExCongressman Artemio Adaza, who are allegedly determined to destroy his
political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was
on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He
stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket
no. 10792424,[10] showing that he was on board Flight PR 165; the said flights
passengers manifest,[11] where the name JALOSJOS/RM/MR appears; and
photographs showing accused-appellants constituents welcoming his arrival
and showing accused-appellant talking with former Mayor Hermanico
Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took
the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met
Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after
talking to his representatives, he proceeded to his residence known as
Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent
the night there.

On June 29, 1996, accused-appellant attended the fiesta at Barangay San


Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30
p.m. Then, together with some friends, he visited the Rizal Shrine and the
Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay
House in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide
consultation with his political leaders at the Blue Room of Dakak, which
lasted till the afternoon. In the evening, he went home and slept in the
Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog
Day. He spent the night in the Barangay House.
On July 2, 1996, he attended the inauguration of the reception hall of
Dakak Beach Resort. The blessing ceremony was officiated by Assistant
Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the
3rd Engineering District of Dapitan City. After the mass, he visited the
Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996,
there was never an instance when he went to Manila until July 9, 1996, when
he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00
a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown
by a private plane to Dipolog, where he stayed until the President of the
Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified
that he was the one, and not accused-appellant, whom Rosilyn met on three
occasions. These occurred once during the first week of May 1996, at
accused-appellants Dakak office where Rosilyn and Simplicio Delantar were
introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he
interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the
proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances
were limited to interviewing her and assessing her singing and modeling
potentials. His testimony made no mention of any sexual encounter with
Rosilyn.
After trial, the court rendered the assailed decision, the dispositive
portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven
beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y
GARCIA, as principal in the two (2) counts of statutory rape defined and
penalized under Article 335 of the Revised Penal Code. He is hereby declared
CONVICTED in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and
96-1993, the prosecution has proven beyond reasonable doubt the guilt of
the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts
of lasciviousness defined under Article 336 of the Revised Penal Code and
penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child
Abuse Law. He is hereby declared CONVICTED in each of these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8)
years, eight (8) months and one (1) day of prision mayor in its medium
period, as maximum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal in its medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY
THOUSAND (P20,000.00) as moral damages for each of the cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and
96-1998, the prosecution has failed to prove beyond reasonable doubt the
guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of
lasciviousness. Therefore, on the ground of reasonable doubt, the accused in
these cases is hereby ACQUITTED.
SO ORDERED.[12]
Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSEDAPPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT,
CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND
UNTRUTHS.

B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE
COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE
ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE
COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN
THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS
COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]
In this jurisdiction, the testimony of the private complainant in rape cases
is scrutinized with utmost caution. The constitutional presumption of
innocence requires no less than moral certainty beyond any scintilla of
doubt. This applies with more vigor in rape cases where the evidence for the
prosecution must stand or fall on its own merits and is not allowed to draw
strength from the weakness of the evidence of the defense. As an inevitable
consequence, it is the rape victim herself that is actually put on trial. The
case at bar is no exception. Bent on destroying the veracity of private
complainants testimony, the errors assigned by accused-appellant,
particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 961991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of
lasciviousness. According to him, the fact that the trial court sustained his
defense of alibi in the said cases only shows that Rosilyn concocted her
stories and the rest of her testimony ought not to be believed. Stated
differently, accused-appellant urges the application of the doctrine of "falsus
in uno falsus in omnibus (false in part, false in everything).[14]
The contention is without merit. Falsus in uno falsus in omnibus is not an
absolute rule of law and is in fact rarely applied in modern jurisprudence.
[15]
Thus, in People v. Yanson-Dumancas,[16] citing People v. Li Bun Juan,[17] this
Court held that:

... In this connection it must be borne in mind that the principle falsus in uno
falsus in omnibus is not an absolute one, and that it is perfectly reasonable
to believe the testimony of a witness with respect to some facts and
disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7,
pp. 3222-3223, the following was quoted with approval by the Court of
Appeals from 1 Moore on Facts, p. 23:
18. Testimony may be partly credited and partly rejected. --- Trier of facts are
not bound to believe all that any witness has said; they may accept some
portions of his testimony and reject other portions, according to what seems
to them, upon other facts and circumstances to be the truth Even when
witnesses are found to have deliberately falsified in some material
particulars, the jury are not required to reject the whole of their
uncorroborated testimony, but may credit such portions as they deem
worthy of belief. (p. 945)[18]
Being in the best position to discriminate between the truth and the
falsehood, the trial court's assignment of values and weight on the testimony
of Rosilyn should be given credence. Significantly, it should be borne in mind
that the issue at hand hinges on credibility, the assessment of which, as oftrepeated, is best made by the trial court because of its untrammeled
opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant,
the trial court stated:
Guided by the foregoing principles, this court found no reason why it should
not believe Rosilyn when she claimed she was raped. Testimonies of rape
victims especially those who are young and immature deserve full credence
(People v. Liquiran, 228 SCRA 62 (1993) considering that no woman would
concoct a story of defloration, allow an examination of her private parts and
thereafter allow herself to be perverted in a public trial if she was not
motivated solely by the desire to have the culprit apprehended and
punished. (People v. Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to
narrate spontaneously in detail how she was sexually abused. Her testimony
in this regard was firm, candid, clear and straightforward, and it remained to
be so even during the intense and rigid cross-examination made by the
defense counsel.[19]
Accused-appellant next argues that Rosilyns direct and redirect
testimonies were rehearsed and lacking in candidness. He points to the
supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross
examinations. He added that she was trained to give answers such as, Ano
po?, Parang po, Medyo po, and Sa tingin ko po.

Accused-appellants arguments are far from persuasive. A reading of the


pertinent transcript of stenographic notes reveals that Rosilyn was in fact
firm and consistent on the fact of rape and lascivious conduct committed on
her by accused-appellant. She answered in clear, simple and natural words
customary of children of her age. The above phrases quoted by accusedappellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor
General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on
the witness stand, may have given some ambiguous answers, they refer
merely to minor and peripheral details which do not in any way detract from
her firm and straightforward declaration that she had been molested and
subjected to lascivious conduct by accused-appellant. Moreover, it should be
borne in mind that even the most candid witness oftentimes makes mistakes
and confused statements. At times, far from eroding the effectiveness of the
evidence, such lapses could, indeed, constitute signs of veracity. [20]
Then, too, accused-appellant capitalizes on the alleged absence of any
allegation of rape in the five (5) sworn statements executed by Rosilyn as
well as in the interviews and case study conducted by the representatives of
the DSWD. In particular, accused-appellant points to the following
documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before
SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed
before NBI Agents Cynthia L. Mariano and Supervising NBI Agent
Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30,
1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and
accurate definition of which could not have been understood by
Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her
the intricacies of rape, she expectedly could not distinguish in her affidavits
and consequently disclose with proficient exactitude the act or acts of
accused-appellant that under the contemplation of law constitute the crime
of rape. This is especially true in the present case where there was no
exhaustive and clear-cut evidence of full and complete penetration of the
victims vagina. It may well be that Rosilyn thought, as any layman would
probably do, that there must be the fullest penetration of the victims vagina
to qualify a sexual act to rape.
In People v. Campuhan,[21] we ruled that rape is consummated by the
slightest penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis. There need not be full and complete penetration of

the victims vagina for rape to be consummated. There being no showing that
the foregoing technicalities of rape was fully explained to Rosilyn on all those
occasions that she was interviewed by the police, the NBI agents and DSWD
social workers, she could not therefore be expected to intelligibly declare
that accused-appellants act of pressing his sex organ against her labia
without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is
cited plus the courts mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your
vagina, your back was rested on a pillow and your legs were spread
wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari
niya sa ari ko. (underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else
did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya
sa ari ko. (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even
without full penetration of the male organ into the vagina of the woman. It is
enough that there be proof of the entrance of the male organ within the labia
of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329;
People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA
393). Penetration of the penis by entry into the lips of the female organ
suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64,
February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with
the testimony of Rosilyn that the accused pressed against (idiniin) and
pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions,
two (2) acts of rape were consummated.[22]
Moreover, it must be borne in mind that Rosilyns purpose in executing
the affidavits on August 22 and 26, 1996 before the Pasay City Police was to
charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the
trial court, it is preposterous to expect Rosilyn to make an exhaustive
narration of the sexual abuse of accused-appellant when he was not the
object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and
19, 1996, concerned mainly the identification of pictures. There was thus no
occasion for her to narrate the details of her sexual encounter with accusedappellant.

As to the interviews and studies conducted by the DSWD, suffice it to


state that said meetings with Rosilyn were specially focused on the
emotional and psychological repercussions of the sexual abuse on Rosilyn,
and had nothing to do with the legal actions being prepared as a
consequence thereof. Thus, the documents pertaining to said interviews and
studies cannot be relied upon to reveal every minute aspect of the sexual
molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns
testimony, if at all they existed, cannot diminish the probative value of
Rosilyns declarations on the witness stand. The consistent ruling of this Court
is that, if there is an inconsistency between the affidavit of a witness and her
testimonies given in open court, the latter commands greater weight than
the former.[23]
In the third assigned error, accused-appellant attempts to impress upon
this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her
abuser only because that was the name given to her by the person to whom
she was introduced. That same name, accused-appellant claims, was merely
picked up by Rosilyn from the name plate, plaque, and memo pad she saw
on accused-appellants office desk. Accused-appellant presented his brother,
Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was
Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the
Dakak office. In advancement of this theory, accused-appellant cites the fact
that out of a total of 16 pictures presented to Rosilyn for identification, she
picked up only 4, which depict Dominador Jun Jalosjos. In the same vein,
accused-appellant claims that the resulting cartographic sketch from the
facial characteristics given by Rosilyn to the cartographer, resembles the
facial appearance of Dominador Jun Jalosjos. Accused-appellant also points
out that Rosilyn failed to give his correct age or state that he has a mole on
his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that
Rosilyn positively and unhesitatingly identified accused-appellant at the
courtroom. Such identification during the trial cannot be diminished by the
fact that in her sworn statement, Rosilyn referred to accused-appellant as her
abuser based on the name she heard from the person to whom she was
introduced and on the name she saw and read in accused-appellants
office. Verily, a persons identity does not depend solely on his name, but also
on his physical features. Thus, a victim of a crime can still identify the culprit
even without knowing his name. Similarly, the Court, in People v. Vasquez,
[24]
ruled that:
It matters little that the eyewitness initially recognized accused-appellant
only by face [the witness] acted like any ordinary person in making inquiries
to find out the name that matched [appellants] face. Significantly, in open
court, he unequivocally identified accused-appellant as their assailant.

Even in the case of People v. Timon,[25] relied upon by accused-appellant


to discredit his identification, this Court said that even assuming that the
out-of-court identification of accused-appellant was defective, their
subsequent identification in court cured any flaw that may have initially
attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out
of the 16 pictures shown to her does not foreclose the credibility of her
unqualified identification of accused-appellant in open court. The same holds
true with the subject cartographic sketch which, incidentally, resembles
accused-appellant. As noted by the trial court, accused-appellant and his
brother Dominador Jalosjos have a striking similarity in facial
features. Naturally, if the sketch looks like Dominador, it logically follows that
the same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accusedappellant and to state that he has a mole on the lower right jaw, cannot
affect the veracity of accused-appellants identification. At a young age,
Rosilyn cannot be expected to give the accurate age of a 56 year-old
person. As to accused-appellants mole, the Solicitor General is correct in
contending that said mole is not so distinctive as to capture Rosilyns
attention and memory. When she was asked to give additional information
about accused-appellant, Rosilyn described him as having a prominent belly.
This, to our mind, is indeed a more distinguishing feature that would
naturally catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the
words idinikit, itinutok, and idiniin-diin, which Rosilyn used to describe what
accused-appellant did to her vagina with his genitals, do not constitute
consummated rape. In addition, the defense argued that Rosilyn did not
actually see accused-appellants penis in the supposed sexual contact. In
fact, they stressed that Rosilyn declared that accused-appellants semen
spilled in her thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v.
Campuhan, argued that, assuming that his penis touched or brushed
Rosilyns external genitals, the same is not enough to establish the crime of
rape.
True, in People v. Campuhan,[26] we explained that the phrase, the mere
touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge, means that the act of
touching should be understood here as inherently part of the entry of the
penis into the labia of the female organ and not mere touching alone of the
mons pubis or the pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area, e.g., mons pubis, labia majora, labia

minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner
surface. The skin of the outer convex surface is covered with hair follicles
and is pigmented, while the inner surface is a thin skin which does not have
any hairs but has many sebaceous glands. Directly beneath the labia majora
is the labia minora. Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, and not merely for the penis to stroke
the surface of the female organ. Thus, a grazing of the surface of the female
organ or touching the mons pubis of the pudendum is not sufficient to
constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis, there can be no consummated rape; at most, it can
only be attempted rape, if not acts of lasciviousness.[27]
In the present case, there is sufficient proof to establish that the acts of
accused-appellant went beyond strafing of the citadel of passion or shelling
of the castle of orgasmic potency, as depicted in the Campuhan case, and
progressed into bombardment of the drawbridge [which] is invasion enough,
[28]
there being, in a manner of speaking, a conquest of the fortress of
ignition. When the accused-appellant brutely mounted between Rosilyns
wide-spread legs, unfetteredly touching, poking and pressing his penis
against her vagina, which in her position would then be naturally wide open
and ready for copulation, it would require no fertile imagination to belie the
hypocrisy claimed by accused-appellant that his penis or that of someone
who looked like him, would under the circumstances merely touch or brush
the external genital of Rosilyn. The inevitable contact between accusedappellants penis, and at the very least, the labia of the pudendum of Rosilyn,
was confirmed when she felt pain inside her vagina when the idiniin part of
accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did
he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell
the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.

Q. And, after lifting your shirt, what else did he do?


A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari
ko, be incorporated?
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari
niya sa ari mo; what did you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which
according to you, idinikit-dikit niya yong ari niya sa ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or ari was being touched by the ari or penis?
xxxxxxxxx
Q. You said that you felt I withdraw that question. How did you know that
Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa ari
ko?
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of
your vagina was Congressman Jalosjos, according to you, idinikit-dikit
niya yong ari niya sa ari mo?
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position?

Will you describe the position of Congressman Jalosjos when he was doing
that. Idinikit-dikit niya sa ari ko?
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
xxxxxxxxx
A. He was holding me like this with his one hand; and was holding his
penis while his other hand, or his free hand was on the bed.
xxxxxxxxx
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to
you. Now, will you tell the Court how can you describe what was done
to you?
A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutok niya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parang idinidiin po niya.
Q. Now, what did you feel, when according to you; as I would
quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what do you mean
by nakaganuon siya?
A. He was holding his penis, and then, that was the one which
he itinutok sa ari ko.
PROS. ZUNO:

Q. And, when you said idinidiin po niya; to which you are referring? What is
this idinidiin niya?
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was idinidiin niya ang ari niya
sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
xxxxxxxxx
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court,
with her index finger, rubbing against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
xxxxxxxxx
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting
down your clothes?
A. Because I felt pity for myself.
(Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)[29]
Even the July 20, 1996 encounter between Rosilyn and accused-appellant
would not tax the sketchy visualization of the nave and uninitiated to
conclude that there was indeed penile invasion by accused-appellant of
Rosilyns labia. On that occasion, accused-appellant was similarly ensconced

between the parted legs of Rosilyn, except that, this time, Rosilyn was
conveniently rested on, and elevated with a pillow on her back while
accused-appellant was touching, poking and pressing his penis against her
vagina. Topped with the thrusting motions employed by accused-appellant,
the resulting pain felt by Rosilyn in her sex organ was no doubt a
consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is
as follows:
PROS. ZUNO:
xxxxxxxxx
Q. The moment when Cong. Jalosjos inserted his finger into your vagina,
what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your
vagina, your back was rested on a pillow and your legs were spread
wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari
niya sa ari ko.
Q. And what did you feel when he was doing that which according to you
and I would quote in Tagalog: idinikit-dikit niya yong ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else
did he do?
A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya
sa ari ko.
Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at
idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing that
act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread
apart; he was in-between them, and doing an upward and downward
movement.
(Witness demonstrated a pushing, or pumping movement)

Q. For how long did Congressman Jalosjos perform that act, pushing or
pumping movement while his penis, or ang ari niya ay nakatutok at
idinidiin-diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that
movement, pushing, or pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.[30]
The childs narration of the rape sequence is revealing. The act of idinikitdikit niya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin
niya was succeeded by Masakit po. Pain inside her ari is indicative of
consummated penetration.
The environmental circumstances displayed by the graphic narration of
what took place at the appellants room from June 14 to June 16 and June 21
to June 22, 1996 are consistent with the complainants testimony which
shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by
putting her legs close together --- which, although futile, somehow made it
inconvenient, if not difficult, for the accused-appellant to attempt
penetration. On the other hand, the ease with which accused-appellant
herein perpetrated the sexual abuse, not to mention the absence of time
constraint, totally distinguishes the instant case from Campuhan. Here, the
victim was passive and even submissive to the lecherous acts of accusedappellant. Thus, even assuming that his penis then was flaccid, his act of
holding, guiding and assisting his penis with his one hand, while touching,
poking and pressing the same against Rosilyn's vagina, would surely result in
even the slightest contact between the labia of the pudendum and accusedappellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the
circumstances of the alleged sexual assault at bar, the defense argued that it
is highly improbable and contrary to human experience that accusedappellant exercised a Spartan-like discipline and restrained himself from fully
consummating the sexual act when there was in fact no reason for him not to
do so. In the same light, the defense likewise branded as unnatural the
testimony of Rosilyn that accused-appellant contented himself with rubbing
his penis clipped between her thighs until he reached orgasm and desisted
from fully penetrating her, when Rosilyn was then entirely at his disposal.

The defense seems to forget that there is no standard form of behavior


when it comes to gratifying ones basic sexual instinct. The human sexual
perversity is far too intricate for the defense to prescribe certain forms of
conduct. Even the word perverse is not entirely precise, as what may be
perverse to one may not be to another. Using a child of tender years who
could even pass as ones granddaughter, to unleash what others would call
downright bestial lust, may be utterly nauseating and repulsive to some, but
may peculiarly be a festive celebration of salacious fantasies to others. For
all we know, accused-appellant may have found a distinct and complete
sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer
period penetrated Rosilyn for fear of perpetrating his name through a child
from the womb of a minor; or because of his previous agreement with
his suking bugaw,Simplicio Delantar, that there would be no penetration,
otherwise the latter would demand a higher price. This may be the reason
why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is
bad if accused-appellant inserts his penis into her sex organ, while at the
same time ordering her to call him if accused-appellant would penetrate
her. Such instance of penile invasion would prompt Simplicio to demand a
higher price, which is, after all, as the Solicitor General calls it, the peculiarity
of prostitution.
The defense contends that the testimony of Rosilyn that accusedappellant ejaculated on her thighs and not in her vagina, only proves that
there was no rape. It should be noted that this portion of Rosilyns testimony
refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not
the rape charges. In any event, granting that it occurred during the twin
instances of rape on June 18 and July 20, 1996, the ejaculation on the victims
thighs would not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see
the penis of accused-appellant. As can be gleaned from the above-quoted
portions of the transcripts, Rosilyn unequivocally testified that accusedappellant held his penis then poked her vagina with it. And even if she did
not actually see accused-appellants penis go inside her, surely she could
have felt whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve
(12) years of age at the time the rape complained of occurred. To bolster the
declaration of Rosilyn that she was then eleven years old, the prosecution
presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31]
(2) Rosilyns baptismal certificate showing her birthday as May 11,
1985;[32]

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was
born on May 11, 1985 to Librada Telen as the mother;[33]
(4) Marked pages of the Cord Dressing Room Book;[34]
(5) Summary of the Cord Dressing Book, showing her birthday as May
11, 1985 and her parents (Librada Telen and Simplicio Delantar)
patient file number (39-10-71);[35]
(6) Record of admission showing her parents patient number (39-1071) and confinement at the Jose Fabella Memorial Hospital from
May 5-14, 1985.[36]
It is settled that in cases of statutory rape, the age of the victim may be
proved by the presentation of her birth certificate. In the case at bar,
accused-appellant contends that the birth certificate of Rosilyn should not
have been considered by the trial court because said birth certificate has
already been ordered cancelled and expunged from the records by the
Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 9781893, dated April 11, 1997.[37] However, it appears that the said decision
has been annulled and set aside by the Court of Appeals on June 10, 1999, in
CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to
this Court by petition for review, docketed as G.R. No. 140305. Pending the
final outcome of that case, the decision of the Court of Appeals is presumed
valid and can be invoked as prima facie basis for holding that Rosilyn was
indeed eleven years old at the time she was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is
sufficient and ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In
People v. Liban,[38] we ruled that the birth certificate, or in lieu thereof, any
other documentary evidence that can help establish the age of the victim,
such as the baptismal certificate, school records, and documents of similar
nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal
certificates of Rosilyn are inadmissible to prove her age, the Master List of
Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital
where Rosilyn was born are sufficient evidence to prove that her date of birth
was May 11, 1985. These documents are considered entries in official
records, admissible as prima facie evidence of their contents and
corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person
in the performance of a duty especially enjoined by law, are prima
facie evidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the
requisites for the application of the foregoing rule, thus:
(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 office or the other person had sufficient knowledge
of the facts by him stated, which must have been acquired by him
personally or through official information.
In order for a book to classify as an official register and admissible in
evidence, it is not necessary that it be required by an express statute to be
kept, nor that the nature of the office should render the book indispensable;
it is sufficient that it be directed by the proper authority to be kept. Thus,
official registers, though not required by law, kept as convenient and
appropriate modes of discharging official duties, are admissible.[40]
Entries in public or official books or records may be proved by the
production of the books or records themselves or by a copy certified by the
legal keeper thereof.[41] It is not necessary to show that the person making
the entry is unavailable by reason of death, absence, etc., in order that the
entry may be admissible in evidence, for his being excused from appearing
in court in order that public business be not deranged, is one of the reasons
for this exception to the hearsay rule.[42]
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No.
766,[43] mandates hospitals to report and register with the local civil registrar
the fact of birth, among others, of babies born under their care. Said Decree
imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00
or imprisonment of not less than three (3) months nor more than six (6)
months, or both, in the discretion of the court, in case of failure to make the
necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with
Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing
Room Book where the fact of birth, name of the mother and other related
entries are initially recorded, as well as the Master List of Live Births of the
hospital, are considered entries in official record, being indispensable to and
appropriate modes of recording the births of children preparatory to
registration of said entries with the local civil registrar, in compliance with a
duty specifically mandated by law.
It matters not that the person presented to testify on these hospital
records was not the person who actually made those entries way back in
1985, but Amelita Avenante, the records custodian of the hospital in 1995. To
reiterate, these records may be proved by the presentation of the record

itself or by a certified copy or the legal keeper thereof. Proof of the


unavailability of the person who made those entries is not a requisite for
their admissibility. What is important is that the entries testified to by
Avenante were gathered from the records of the hospital which were
accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live
Births of the hospital are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth
and baptismal certificates of Rosilyn. They establish independent and
material facts prepared by unbiased and disinterested persons under
environmental circumstances apart from those that may have attended the
preparation of the birth and baptismal certificates. Hence, these hospital
records, to reiterate, are sufficient to support the testimony of Rosilyn as to
her age.
Consequently, the testimony of Simplicio Delantar that the entries in the
birth certificate of Rosilyn are false and that he merely made them up,
particularly her date of birth, was correctly disregarded by the trial court. It
should be noted that the criminal charges for child abuse filed by Rosilyn
against him was the direct cause of his incarceration. This raises a possibility
that Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria
Binay and Angelito Intruzo because the defense failed to prove that they
were knowledgeable as to the circumstances of Rosilyns birth. Their
testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on
June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 961995, 96-1996, and 96-1997, respectively), the trial court acquitted accusedappellant on the ground of reasonable doubt as the defense was able to
prove that accused-appellant was not in Manila but either in Dipolog or
Dapitan City at the time the lascivious acts were supposedly committed. The
evidence of the defense established that accused-appellant flew to Dipolog
on June 28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of
lasciviousness allegedly committed both in the early mornings of June 19 and
July 21, 1996, Rosilyn merely testified that she felt somebody touching her
private part but failed to identify the person who was performing those
lecherous acts as she was too sleepy to wake up. Hence, accused-appellant
was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the
morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and
21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20,

1996, accused-appellant failed to account for his whereabouts. A careful


review of the pertinent transcript of stenographic notes reveals that accusedappellant did not give any testimony as to where he was at the time these
crimes were committed. Clearly, therefore, the trial court correctly
disregarded his unsubstantiated defense of denial, which cannot prevail over
his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning
of June 16, 1996, accused-appellant claimed that it was impossible for him to
have committed the same because he flew to Dipolog on that day. The
records disclose, however, that accused-appellants flight was at 9:40
a.m. The possibility, therefore, of accused-appellants having performed the
lascivious acts on the victim before he went off to the airport is not at all
precluded. For his failure to prove the physical impossibility of his presence
at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse of
Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or
female, who for money or profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
xxx xxx xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subjected to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x . (Emphasis supplied.)
In People v. Optana,[44] the Court, citing the case of People v. Larin,
[45]
explained the elements of the offense of violation of Section 5 (b) of R.A.
7610, or the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected
other sexual abuse.

3. The child, whether male or female, is below 18 years of age.


A child is deemed exploited in prostitution or subjected to other sexual
abuse, when the child indulges in sexual intercourse or lascivious conduct (a)
for money, profit, or any other consideration; or (b) under the coercion or
influence of any adult, syndicate or group. Under RA 7610, children are
persons below eighteen years of age or those unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of their age or mental disability or condition.
Lascivious conduct is defined under Article XIII, Section 32 of the
Implementing Rules and Regulation of R.A. 7610, as follows:
[T]he intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the
same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the lips,
fondling her breast, inserting his finger into her vagina and placing his penis
between her thighs, all constitute lascivious conduct intended to arouse or
gratify his sexual desire. Hence, the trial court correctly convicted accusedappellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in
Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 961993, charging him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse
Law, where the victim is below 12 years of age, is reclusion temporal in its
medium period.
The records show that on at least nine (9) separate occasions, the
accused-appellant inserted his finger into the complainants vagina. These
insertions took place in 1996. A year later, Congress enacted Republic Act
No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it
indicates state policy on rape. The Revised Penal Code is now amended to
read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any of the
following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and


d) When the offended party is under twelve (12) years of age or is demented,
even though none of the circumstances mentioned above be present.
2. By any person who, under any of the circumstances mentioned in
paragraph 1 hereof, shall commit an act of sexual assault by inserting his
penis into another persons mouth or anal orifice or any instrument or object,
into the genital or anal orifice of another person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law
of 1997 now classifies the crime as an offense against persons. Any public
prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances,
which are now set forth and contained in Article 266-B of the Revised Penal
Code, have also been increased.
Considering that there are neither mitigating nor aggravating
circumstance, the trial court correctly imposed on accused-appellant the
maximum penalty of fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal, which is within the medium period of reclusion
temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.
[46]
Notwithstanding that R.A. 7610 is a special law, accused-appellant may
enjoy a minimum term of the indeterminate sentence to be taken within the
range of the penalty next lower to that prescribed by the Code. [47] However,
the trial court erroneously fixed the minimum term of the indeterminate
sentence at eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period. In the aforesaid case of Dulla,[48] we held that
the penalty next lower in degree to reclusion temporal medium is reclusion
temporal minimum, the range of which is from twelve (12) years and one (1)
day to fourteen (14) years and eight (8) months.Hence, for violation of Article
III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the
indeterminate sentence of twelve years (12) and one (1) day of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20)
days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996,
statutory rape was penalized under Section 11 of R.A. 7659, which amended
Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.


The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve
years of age consummates the crime of statutory rape regardless of her
consent to the act or lack of it. The law presumes that a woman of tender
age does not possess discernment and is incapable of giving intelligent
consent to the sexual act. Thus, it was held that carnal knowledge of a child
below twelve years old even if she is engaged in prostitution is still
considered statutory rape. The application of force and intimidation or the
deprivation of reason of the victim becomes irrelevant. The absence of
struggle or outcry of the victim or even her passive submission to the sexual
act will not mitigate nor absolve the accused from liability.[49]
In the case at bar, the prosecution established beyond reasonable doubt
that accused-appellant had carnal knowledge of Rosilyn. Moreover, the
prosecution successfully proved that Rosilyn was only eleven years of age at
the time she was sexually abused. As such, the absence of proof of any
struggle, or for that matter of consent or passive submission to the sexual
advances of accused-appellant, was of no moment. The fact that accusedappellant had sexual congress with eleven year-old Rosilyn is sufficient to
hold him liable for statutory rape, and sentenced to suffer the penalty
of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages
awarded by the trial court for each count of acts of lasciviousness under
Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to
P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as
moral damages for each count of statutory rape was correct.
In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v.
Gementiza,[53] we held that the indemnity authorized by our criminal law as
civil indemnity ex delicto for the offended party, in the amount authorized by
the prevailing judicial policy and aside from other proven actual damages, is
itself equivalent to actual or compensatory damages in civil law. Said civil
indemnity is mandatory upon finding of the fact of rape; it is distinct from
and should not be denominated as moral damages which are based on
different jural foundations and assessed by the court in the exercise of sound
judicial discretion.[54] Hence, accused-appellant should be ordered to pay the
offended party another P50,000.00 as civil indemnity for each count of rape
and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch
62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant
Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory
rape, and sentencing him to suffer the penalty of reclusion perpetua for each
count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial

Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989,


96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond
reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with
MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for
each count of acts of lasciviousness, the indeterminate penalty of twelve
years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15)
years, six (6) months and twenty (20) days of reclusion temporal as
maximum. Further, accused-appellant is ordered to pay the victim, Ma.
Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for
each count of statutory rape and acts of lasciviousness. Finally, the award of
moral damages for each count of acts of lasciviousness is increased to
P50,000.00.
SO ORDERED
G.R. No. L-29646 November 10, 1978
MAYOR ANTONIO J. VILLEGAS, petitioner,
vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents.
Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for
petitioner.
Sotero H. Laurel for respondents.

FERNANDEZ, J.:
This is a petition for certiorari to review tile decision dated September 17,
1968 of respondent Judge Francisco Arca of the Court of First Instance of
Manila, Branch I, in Civil Case No. 72797, the dispositive portion of winch
reads.
Wherefore, judgment is hereby rendered in favor of the petitioner
and against the respondents, declaring Ordinance No. 6 37 of the
City of Manila null and void. The preliminary injunction is made
permanent. No pronouncement as to cost.
SO ORDERED.
Manila, Philippines, September 17, 1968.

(SGD.
)
FRAN
CISC
O
ARCA
Judge
1

The controverted Ordinance No. 6537 was passed by the Municipal Board of
Manila on February 22, 1968 and signed by the herein petitioner Mayor
Antonio J. Villegas of Manila on March 27, 1968. 2
City Ordinance No. 6537 is entitled:
AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A
CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF
EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE,
BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA
WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE
MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3
Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed
or to engage or participate in any position or occupation or business
enumerated therein, whether permanent, temporary or casual, without first
securing an employment permit from the Mayor of Manila and paying the
permit fee of P50.00 except persons employed in the diplomatic or consular
missions of foreign countries, or in the technical assistance programs of both
the Philippine Government and any foreign government, and those working
in their respective households, and members of religious orders or
congregations, sect or denomination, who are not paid monetarily or in kind.
Violations of this ordinance is punishable by an imprisonment of not less than
three (3) months to six (6) months or fine of not less than P100.00 but not
more than P200.00 or both such fine and imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was
employed in Manila, filed a petition with the Court of First Instance of Manila,
Branch I, denominated as Civil Case No. 72797, praying for the issuance of
the writ of preliminary injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a judgment declaring said
Ordinance No. 6537 null and void. 6

In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds
for wanting the ordinance declared null and void:
1) As a revenue measure imposed on aliens employed in the City
of Manila, Ordinance No. 6537 is discriminatory and violative of
the rule of the uniformity in taxation;
2) As a police power measure, it makes no distinction between
useful and non-useful occupations, imposing a fixed P50.00
employment permit, which is out of proportion to the cost of
registration and that it fails to prescribe any standard to guide
and/or limit the action of the Mayor, thus, violating the
fundamental principle on illegal delegation of legislative powers:
3) It is arbitrary, oppressive and unreasonable, being applied
only to aliens who are thus, deprived of their rights to life, liberty
and property and therefore, violates the due process and equal
protection clauses of the Constitution. 7
On May 24, 1968, respondent Judge issued the writ of preliminary injunction
and on September 17, 1968 rendered judgment declaring Ordinance No.
6537 null and void and making permanent the writ of preliminary
injunction. 8
Contesting the aforecited decision of respondent Judge, then Mayor Antonio
J. Villegas filed the present petition on March 27, 1969. Petitioner assigned
the following as errors allegedly committed by respondent Judge in the
latter's decision of September 17,1968: 9
I
THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT
ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED
THE CARDINAL RULE OF UNIFORMITY OF TAXATION.
II
RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND
PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF
LEGISLATIVE POWER.
III

RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND


PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537
VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES
OF THE CONSTITUTION.
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared
null and void on the ground that it violated the rule on uniformity of taxation
because the rule on uniformity of taxation applies only to purely tax or
revenue measures and that Ordinance No. 6537 is not a tax or revenue
measure but is an exercise of the police power of the state, it being
principally a regulatory measure in nature.
The contention that Ordinance No. 6537 is not a purely tax or revenue
measure because its principal purpose is regulatory in nature has no merit.
While it is true that the first part which requires that the alien shall secure an
employment permit from the Mayor involves the exercise of discretion and
judgment in the processing and approval or disapproval of applications for
employment permits and therefore is regulatory in character the second part
which requires the payment of P50.00 as employee's fee is not regulatory
but a revenue measure. There is no logic or justification in exacting P50.00
from aliens who have been cleared for employment. It is obvious that the
purpose of the ordinance is to raise money under the guise of regulation.
The P50.00 fee is unreasonable not only because it is excessive but because
it fails to consider valid substantial differences in situation among individual
aliens who are required to pay it. Although the equal protection clause of the
Constitution does not forbid classification, it is imperative that the
classification should be based on real and substantial differences having a
reasonable relation to the subject of the particular legislation. The same
amount of P50.00 is being collected from every employed alien whether he is
casual or permanent, part time or full time or whether he is a lowly employee
or a highly paid executive
Ordinance No. 6537 does not lay down any criterion or standard to guide the
Mayor in the exercise of his discretion. It has been held that where an
ordinance of a municipality fails to state any policy or to set up any standard
to guide or limit the mayor's action, expresses no purpose to be attained by
requiring a permit, enumerates no conditions for its grant or refusal, and
entirely lacks standard, thus conferring upon the Mayor arbitrary and
unrestricted power to grant or deny the issuance of building permits, such
ordinance is invalid, being an undefined and unlimited delegation of power to
allow or prevent an activity per se lawful. 10

In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where


a law granted a government agency power to determine the allocation of
wheat flour among importers, the Supreme Court ruled against the
interpretation of uncontrolled power as it vested in the administrative officer
an arbitrary discretion to be exercised without a policy, rule, or standard
from which it can be measured or controlled.
It was also held in Primicias vs. Fugoso 12 that the authority and discretion to
grant and refuse permits of all classes conferred upon the Mayor of Manila by
the Revised Charter of Manila is not uncontrolled discretion but legal
discretion to be exercised within the limits of the law.
Ordinance No. 6537 is void because it does not contain or suggest any
standard or criterion to guide the mayor in the exercise of the power which
has been granted to him by the ordinance.
The ordinance in question violates the due process of law and equal
protection rule of the Constitution.
Requiring a person before he can be employed to get a permit from the City
Mayor of Manila who may withhold or refuse it at will is tantamount to
denying him the basic right of the people in the Philippines to engage in a
means of livelihood. While it is true that the Philippines as a State is not
obliged to admit aliens within its territory, once an alien is admitted, he
cannot be deprived of life without due process of law. This guarantee
includes the means of livelihood. The shelter of protection under the due
process and equal protection clause is given to all persons, both aliens and
citizens. 13
The trial court did not commit the errors assigned.
WHEREFORE, the decision appealed from is hereby affirmed, without
pronouncement as to costs.
SO ORDERED.
Barredo, Makasiar, Muoz Palma, Santos and Guerrero, JJ., concur.
Castro, C.J., Antonio and Aquino, Fernando, JJ., concur in the result.
Concepcion, Jr., J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:


I concur in the decision penned by Mr. Justice Fernandez which affirms the
lower court's judgment declaring Ordinance No. 6537 of the City of Manila
null and void for the reason that the employment of aliens within the country
is a matter of national policy and regulation, which properly pertain to the
national government officials and agencies concerned and not to local
governments, such as the City of Manila, which after all are mere creations of
the national government.
The national policy on the matter has been determined in the statutes
enacted by the legislature, viz, the various Philippine nationalization laws
which on the whole recognize the right of aliens to obtain gainful
employment in the country with the exception of certain specific fields and
areas. Such national policies may not be interfered with, thwarted or in any
manner negated by any local government or its officials since they are not
separate from and independent of the national government.
As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs.
Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the
Insular (National Government ...). When the Insular (National) Government
adopts a policy, a municipality is without legal authority to nullify and set at
naught the action of the superior authority." Indeed, "not only must all
municipal powers be exercised within the limits of the organic laws, but they
must be consistent with the general law and public policy of the particular
state ..." (I McQuillin, Municipal Corporations, 2nd sec. 367, P. 1011).
With more reason are such national policies binding on local governments
when they involve our foreign relations with other countries and their
nationals who have been lawfully admitted here, since in such matters the
views and decisions of the Chief of State and of the legislature must prevail
over those of subordinate and local governments and officials who have no
authority whatever to take official acts to the contrary.

Separate Opinions
TEEHANKEE, J., concurring:
I concur in the decision penned by Mr. Justice Fernandez which affirms the
lower court's judgment declaring Ordinance No. 6537 of the City of Manila
null and void for the reason that the employment of aliens within the country
is a matter of national policy and regulation, which properly pertain to the
national government officials and agencies concerned and not to local
governments, such as the City of Manila, which after all are mere creations of
the national government.
The national policy on the matter has been determined in the statutes
enacted by the legislature, viz, the various Philippine nationalization laws
which on the whole recognize the right of aliens to obtain gainful
employment in the country with the exception of certain specific fields and
areas. Such national policies may not be interfered with, thwarted or in any
manner negated by any local government or its officials since they are not
separate from and independent of the national government.
As stated by the Court in the early case of Phil. Coop. Livestock Ass'n. vs.
Earnshaw, 59 Phil. 129: "The City of Manila is a subordinate body to the
Insular (National Government ...). When the Insular (National) Government
adopts a policy, a municipality is without legal authority to nullify and set at
naught the action of the superior authority." Indeed, "not only must all
municipal powers be exercised within the limits of the organic laws, but they
must be consistent with the general law and public policy of the particular
state ..." (I McQuillin, Municipal Corporations, 2nd sec. 367, P. 1011).
With more reason are such national policies binding on local governments
when they involve our foreign relations with other countries and their
nationals who have been lawfully admitted here, since in such matters the
views and decisions of the Chief of State and of the legislature must prevail
over those of subordinate and local governments and officials who have no
authority whatever to take official acts to the contrary.
G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG &


SHANGHAI BANKING CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking
Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and
McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the
issuance of the writ of certiorari and of prohibition to the Court of First
Instance of Manila so that this court may review the actuations of the
aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more
particularly the application of the defendant Mariano Cu Unjieng therein for
probation under the provisions of Act No. 4221, and thereafter prohibit the
said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction rendered by this court in
said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and
Shanghai Banking Corporation, are respectively the plaintiff and the offended
party, and the respondent herein Mariano Cu Unjieng is one of the
defendants, in the criminal case entitled "The People of the Philippine Islands
vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First
Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon.
Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of
First Instance of Manila, who heard the application of the defendant Mariano
Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and
Shanghai Banking Corporation intervening in the case as private prosecutor.
After a protracted trial unparalleled in the annals of Philippine jurisprudence
both in the length of time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the Court of First Instance
of Manila, on January 8, 1934, rendered a judgment of conviction sentencing
the defendant Mariano Cu Unjieng to indeterminate penalty ranging from

four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended
party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the
court, on March 26, 1935, modified the sentence to an indeterminate penalty
of from five years and six months of prision correccional to seven years, six
months and twenty-seven days of prision mayor, but affirmed the judgment
in all other respects. Mariano Cu Unjieng filed a motion for reconsideration
and four successive motions for new trial which were denied on December
17, 1935, and final judgment was accordingly entered on December 18,
1935. The defendant thereupon sought to have the case elevated
on certiorari to the Supreme Court of the United States but the latter denied
the petition forcertiorari in
November, 1936. This court, on
November 24, 1936, denied the petition subsequently filed by the defendant
for leave to file a second alternative motion for reconsideration or new trial
and thereafter remanded the case to the court of origin for execution of the
judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on
November 27, 1936,
before the trial court, under the provisions of Act No. 4221 of the defunct
Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was
convicted, that he has no criminal record and that he would observe good
conduct in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the Insular
Probation Office which recommended denial of the same June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose
O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The
private prosecution also filed an opposition on April 5, 1937, alleging, among
other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section
1, subsection (1), Article III of the Constitution guaranteeing equal protection
of the laws for the reason that its applicability is not uniform throughout the
Islands and because section 11 of the said Act endows the provincial boards
with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private

prosecution except with respect to the questions raised concerning the


constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados
no son inconsistentes o incongrentes con su inocencia" and concludes that
the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of
the crime of which he stands convicted by this court in G.R. No. 41200, but
denying the latter's petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo de
esta resolucion, que hacen al peticionario acreedor de la misma, una
parte de la opinion publica, atizada por los recelos y las suspicacias,
podria levantarse indignada contra un sistema de probacion que
permite atisbar en los procedimientos ordinarios de una causa criminal
perturbando la quietud y la eficacia de las decisiones ya recaidas al
traer a la superficie conclusiones enteramente differentes, en
menoscabo del interes publico que demanda el respeto de las leyes y
del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed
an exception to the resolution denying probation and a notice of intention to
file a motion for reconsideration. An alternative motion for reconsideration or
new trial was filed by counsel on July 13, 1937. This was supplemented by an
additional motion for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent Mariano Cu Unjieng
because a motion for leave to intervene in the case as amici curiae signed by
thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance as amicus
curiae on the ground that the motion for leave to intervene as amici
curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng
on the evening of July 30, 1937, and that he signed the same "without
mature deliberation and purely as a matter of courtesy to the person who
invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the
trial court for the issuance of an order of execution of the judgment of this
court in said case and forthwith to commit the herein respondent Mariano Cu
Unjieng to jail in obedience to said judgment.

On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici curiaeaforementioned, asking that a date be
set for a hearing of the same and that, at all events, said motion should be
denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On
August 10, 1937, herein respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for intervention as amici curiae to
appear before the court on August 14, 1937. On the last-mentioned date, the
Fiscal of the City of Manila moved for the hearing of his motion for execution
of judgment in preference to the motion for leave to intervene as amici
curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for
the postponement of the hearing of both motions. The respondent judge
thereupon set the hearing of the motion for execution on August 21, 1937,
but proceeded to consider the motion for leave to intervene as amici
curiae as in order. Evidence as to the circumstances under which said motion
for leave to intervene as amici curiae was signed and submitted to court was
to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to
what they alleged was an interminable proceeding in the Court of First
Instance of Manila which fostered "the campaign of the defendant Mariano
Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule
because of the apparent inability of the judicial machinery to make effective
a final judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended
upon the issuance of a temporary restraining order by this court on August
21, 1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the respondent
judge has acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent
Mariano Cu Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine
Legislature is made to apply only to the provinces of the Philippines; it
nowhere states that it is to be made applicable to chartered cities like
the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to
the effect that in the absence of a special provision, the term

"province" may be construed to include the City of Manila for the


purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is made
to apply only to those provinces in which the respective provincial
boards shall have provided for the salary of a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act
No. 4221 would not be applicable to it because it has provided for the
salary of a probation officer as required by section 11 thereof; it being
immaterial that there is an Insular Probation Officer willing to act for
the City of Manila, said Probation Officer provided for in section 10 of
Act No. 4221 being different and distinct from the Probation Officer
provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to
entertain the application for probation of the respondent Mariano Cu Unjieng,
he nevertheless acted without jurisdiction or in excess thereof in continuing
to entertain the motion for reconsideration and by failing to commit Mariano
Cu Unjieng to prison after he had promulgated his resolution of June 28,
1937, denying Mariano Cu Unjieng's application for probation, for the reason
that:
(1) His jurisdiction and power in probation proceedings is limited by Act
No. 4221 to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition
for probation on June 28, 1937, it became final and executory at the
moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said
order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this
court, which finding is not only presumptuous but without foundation in fact
and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his
duty, which became imperative when he issued his order of June 28, 1937,
denying the application for probation, to commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate
remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner
Hongkong and Shanghai Banking Corporation further contends that Act No.
4221 of the Philippine Legislature providing for a system of probation for
persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III,
of the Constitution of the Philippines guaranteeing equal protection of the
laws because it confers upon the provincial board of its province the absolute
discretion to make said law operative or otherwise in their respective
provinces, because it constitutes an unlawful and improper delegation to the
provincial boards of the several provinces of the legislative power lodged by
the Jones Law (section 8) in the Philippine Legislature and by the Constitution
(section 1, Art. VI) in the National Assembly; and for the further reason that it
gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers
of the Court of First Instance of different provinces without uniformity. In
another supplementary petition dated September 14, 1937, the Fiscal of the
City of Manila, in behalf of one of the petitioners, the People of the Philippine
Islands, concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral argument
held on October 6, 1937, further elaborated on the theory that probation is a
form of reprieve and therefore Act. No. 4221 is an encroachment on the
exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he
contended that Act No. 4221 not only encroaches upon the pardoning power
to the executive, but also constitute an unwarranted delegation of legislative
power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the SolicitorGeneral, acting in behalf of the People of the Philippine Islands, and by
counsel for the petitioner, the Hongkong and Shanghai Banking Corporation,
one sustaining the power of the state to impugn the validity of its own laws
and the other contending that Act No. 4221 constitutes an unwarranted
delegation of legislative power, were presented. Another joint memorandum
was filed by the same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and,
further, that the whole Act is void: that the Commonwealth is not estopped
from questioning the validity of its laws; that the private prosecution may
intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional
question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the
foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to
warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to
the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction
with the Court of First Instance to decide the question as to whether or
not the execution will lie, this court nevertheless cannot exercise said
jurisdiction while the Court of First Instance has assumed jurisdiction
over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated because
it impairs the authority and dignity of the trial court which court while
sitting in the probation cases is "a court of limited jurisdiction but of
great dignity."
(6) That under the supposition that this court has jurisdiction to resolve
the question submitted to and pending resolution by the trial court, the
present action would not lie because the resolution of the trial court
denying probation is appealable; for although the Probation Law does
not specifically provide that an applicant for probation may appeal
from a resolution of the Court of First Instance denying probation, still it
is a general rule in this jurisdiction that a final order, resolution or
decision of an inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not

become final and executory for the reason that the said respondent
had filed an alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial court was
able to resolve in view of the restraining order improvidently and
erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted
that the resolution of the trial court denying probation is not final and
unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of the
said motion.
(9) That under the supposition that the order of the trial court denying
probation is not appealable, it is incumbent upon the accused to file an
action for the issuance of the writ ofcertiorari with mandamus, it
appearing that the trial court, although it believed that the accused
was entitled to probation, nevertheless denied probation for fear of
criticism because the accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of jurisdiction by the
trial court could lie, it is incumbent upon the petitioner to file a motion
for reconsideration specifying the error committed so that the trial
court could have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a reasonable
time to correct or modify it in accordance with law and justice; that this
power to alter or modify an order or resolution is inherent in the courts
and may be exercise either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form of a motion for
reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution of
the same while it is on appeal, for then the appeal would not be
availing because the doors of probation will be closed from the
moment the accused commences to serve his sentence (Act No. 4221,
sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because, contrary to
the allegations of the petitioners, it does not constitute an undue delegation
of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the

Executive. In an additional memorandum filed on the same date, counsel for


the respondents reiterate the view that section 11 of Act No. 4221 is free
from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question
the validity of Act No. 4221; that both the City Fiscal and the SolicitorGeneral are estopped from questioning the validity of the Act; that the
validity of Act cannot be attacked for the first time before this court; that
probation in unavailable; and that, in any event, section 11 of the Act No.
4221 is separable from the rest of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for having been filed out of time
but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the points
raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the
present case, we noted that the court below, in passing upon the merits of
the application of the respondent Mariano Cu Unjieng and in denying said
application assumed the task not only of considering the merits of the
application, but of passing upon the culpability of the applicant,
notwithstanding the final pronouncement of guilt by this court. (G.R. No.
41200.) Probation implies guilt be final judgment. While a probation case
may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court,
either directly or indirectly, especially wherefrom its own admission reliance
was merely had on the printed briefs, averments, and pleadings of the
parties. As already observed by this court in Shioji vs. Harvey ([1922], 43
Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court
of First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial chaos would
result." A becoming modesty of inferior courts demands conscious realization
of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for
the petitioners and the respondents, this court prefers to cut the Gordian
knot and take up at once the two fundamental questions presented, namely,
(1) whether or not the constitutionality of Act No. 4221 has been properly
raised in these proceedings; and (2) in the affirmative, whether or not said
Act is constitutional. Considerations of these issues will involve a discussion
of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain
guiding principles is necessary. It is a well-settled rule that the

constitutionality of an act of the legislature will not be determined by the


courts unless that question is properly raised and presented inappropriate
cases and is necessary to a determination of the case; i.e., the issue of
constitutionality must be the very lis mota presented. (McGirr vs. Hamilton
and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780782, 783.)
The question of the constitutionality of an act of the legislature is frequently
raised in ordinary actions. Nevertheless, resort may be made to
extraordinary legal remedies, particularly where the remedies in the ordinary
course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone([1922]), 42 Phil., 818), this court held that the
question of the constitutionality of a statute may be raised by the petitioner
in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of
the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer
vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an
action of quo warrantobrought in the name of the Government of the
Philippines. It has also been held that the constitutionality of a statute may
be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey
on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the
contrary; on an application for injunction to restrain action under the
challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil.,
234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the
case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil.,
385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District
Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982;
1 L. R. A. [N. S], 843, and cases cited). The case ofYu Cong Eng vs. Trinidad,
supra, decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of Act No.
2972, popularly known as the Chinese Bookkeeping Law, was there
challenged by the petitioners, and the constitutional issue was not met
squarely by the respondent in a demurrer. A point was raised "relating to the
propriety of the constitutional question being decided in original proceedings
in prohibition." This court decided to take up the constitutional question and,
with two justices dissenting, held that Act No. 2972 was constitutional. The
case was elevated on writ of certiorari to the Supreme Court of the United
States which reversed the judgment of this court and held that the Act was
invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction,
however, the Federal Supreme Court, though its Chief Justice, said:

By the Code of Civil Procedure of the Philippine Islands, section 516,


the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the
validity of the criminal statute must usually be raised by a defendant in
the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in
this case where a new act seriously affected numerous persons and
extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue to
the act's validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by analogy upon the
cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N.
S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U.
S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann.
Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755;
L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024).
Although objection to the jurisdiction was raise by demurrer to the
petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in
prohibition granted to that court under the Island Code, we acquiesce
in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court
of superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general
rule, although there is a conflict in the cases, is that the merit of prohibition
will not lie whether the inferior court has jurisdiction independent of the
statute the constitutionality of which is questioned, because in such cases
the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review,
and consequently the complainant in such cases ordinarily has adequate
remedy by appeal without resort to the writ of prohibition. But where the
inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from
enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala.,
42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me.,
384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey
[1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30
Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their


jurisdiction solely from Act No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused persons after their conviction
has become final and before they have served their sentence. It is true that
at common law the authority of the courts to suspend temporarily the
execution of the sentence is recognized and, according to a number of state
courts, including those of Massachusetts, Michigan, New York, and Ohio, the
power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497;
People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs.
State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup.
Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court
was limited to temporary suspension, and brushed aside the contention as to
inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses
against the criminal laws and upon conviction to impose the
punishment provided by law is judicial, and it is equally to be conceded
that, in exerting the powers vested in them on such subject, courts
inherently possess ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their authority. But these
concessions afford no ground for the contention as to power here
made, since it must rest upon the proposition that the power to enforce
begets inherently a discretion to permanently refuse to do so. And the
effect of the proposition urged upon the distribution of powers made by
the Constitution will become apparent when it is observed that
indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in advance to
bring within judicial discretion, for the purpose of executing the
statute, elements of consideration which would be otherwise beyond
the scope of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the methods by
it provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director
of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this
court in 1915, also reached the conclusion that the power to suspend the
execution of sentences pronounced in criminal cases is not inherent in the
judicial function. "All are agreed", he said, "that in the absence of statutory
authority, it does not lie within the power of the courts to grant such
suspensions." (at p. 278.) Both petitioner and respondents are correct,

therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has not been
properly brought to the attention of the court by objection of some kind (Hill
vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable
that the constitutional issue has been squarely presented not only before this
court by the petitioners but also before the trial court by the private
prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of
the court below, declined to pass upon the question on the ground that the
private prosecutor, not being a party whose rights are affected by the
statute, may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as
authority for the proposition that a court will not consider any attack made
on the constitutionality of a statute by one who has no interest in defeating it
because his rights are not affected by its operation. The respondent judge
further stated that it may not motu proprio take up the constitutional
question and, agreeing with Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious of the fallibility of the
human judgment, will shrink from exercising in any case where he can
conscientiously and with due regard to duty and official oath decline the
responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded
on the assumption that Act No. 4221 is constitutional. While therefore, the
court a quo admits that the constitutional question was raised before it, it
refused to consider the question solely because it was not raised by a proper
party. Respondents herein reiterates this view. The argument is advanced
that the private prosecution has no personality to appear in the hearing of
the application for probation of defendant Mariano Cu Unjieng in criminal
case No. 42648 of the Court of First Instance of Manila, and hence the issue
of constitutionality was not properly raised in the lower court. Although, as a
general rule, only those who are parties to a suit may question the
constitutionality of a statute involved in a judicial decision, it has been held
that since the decree pronounced by a court without jurisdiction is void,
where the jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on its being
brought to the attention of the court by persons interested in the effect to be
given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede
that the issue was not properly raised in the court below by the proper party,

it does not follow that the issue may not be here raised in an original action
of certiorari and prohibitions. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not
raised by the pleadings, ordinarily it may not be raised at the trial, and if not
raised in the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also,Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192,
193-195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sounds discretion, may determine the time when a
question affecting the constitutionality of a statute should be presented. (In
re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although
there is a very sharp conflict of authorities, it is said that the question may
be raised for the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that
it is the duty of a court to pass on the constitutional question, though raised
for the first time on appeal, if it appears that a determination of the question
is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S.
R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage
Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co.,
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time,
where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not
the proper party to raise the constitutional question here a point we do not
now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged
rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or
will sustained, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature

unconstitutional in an action instituted in behalf of the Government of the


Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312;
41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was though, as a general rule,
only those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction in void, where the jurisdiction of
the court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the attention of
the court by persons interested in the effect to begin the statute. (12 C.J.,
sec. 184, p. 766.) And, even if we were to concede that the issue was not
properly raised in the court below by the proper party, it does not follow that
the issue may not be here raised in an original action of certiorari and
prohibition. It is true that, as a general rule, the question of constitutionality
must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the
trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also,
Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re
Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there
is a very sharp conflict of authorities, it is said that the question may be
raised for the first time at any state of the proceedings, either in the trial
court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that
it is the duty of a court to pass on the constitutional question, though raised
for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R.
Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co.
[1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co.
[1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time,
where it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider the
constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong &
Shanghai Banking Corporation, represented by the private prosecution, is not

the proper party to raise the constitutional question here a point we do not
now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The unchallenged
rule is that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement. It goes without saying
that if Act No. 4221 really violates the Constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial
interest in having it set aside. Of greater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the wellsettled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the Government of the
Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to
question the constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that
to an accusation by the people of Michigan of usurpation their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is statute only in form, and
lacks the force of law, and is of no more saving effect to justify action
under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the
people must bow . . . The legislature and the respondents are not the
only parties in interest upon such constitutional questions. As was
remarked by Mr. Justice Story, in speaking of an acquiescence by a
party affected by an unconstitutional act of the legislature: "The people
have a deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers." (Allen vs. Mckeen,
1 Sum., 314.)

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of the question
whether or not the state may bring the action, the Supreme Court of Kansas
said:
. . . the state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature
is not disregarded, and need not, as an individual plaintiff
must, show grounds of fearing more specific injury. (State
vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law
officer, its Attorney-General, or county attorney, may exercise his bet
judgment as to what sort of action he will bring to have the matter
determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to
compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac.,
846), or by injunction to restrain proceedings under its questionable
provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac.,
122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W.
Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S.,
823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of
County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs.
State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind.,
339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11).
In the case last cited, the Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney,
being charged with the duty of enforcing the laws, has no right to
plead that a law is unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge
of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So.,
592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La.
Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid
a district attorney to plead that a statute is unconstitutional if he finds

if in conflict with one which it is his duty to enforce. In State ex rel.


Hall, District Attorney, vs. Judge, etc., the ruling was the judge should
not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must
be decided in order to determine the right of a party litigant. Stateex
rel. Nicholls, Governor, etc., is authority for the proposition merely that
an officer on whom a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the ground that he considers
the statute unconstitutional, and hence in enforcing the statute he is
immune from responsibility if the statute be unconstitutional. State ex
rel. Banking Co., etc., is authority for the proposition merely that
executive officers, e.g., the state auditor and state treasurer, should
not decline to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his judgment, one of the
two statutes is unconstitutional, it is his duty to enforce the other; and,
in order to do so, he is compelled to submit to the court, by way of a
plea, that one of the statutes is unconstitutional. If it were not so, the
power of the Legislature would be free from constitutional limitations in
the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the
general proposition that the state may impugn the validity of its laws. They
have not cited any authority running clearly in the opposite direction. In fact,
they appear to have proceeded on the assumption that the rule as stated is
sound but that it has no application in the present case, nor may it be
invoked by the City Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity before this
court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside
said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,.
10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the
past and all that time has not been attacked as unconstitutional by the Fiscal
of Manila but, on the contrary, has been impliedly regarded by him as

constitutional, is no reason for considering the People of the Philippines


estopped from nor assailing its validity. For courts will pass upon a
constitutional questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it
is held void by the courts in proper cases.
It remains to consider whether the determination of the constitutionality of
Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while
the court will meet the question with firmness, where its decision is
indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on
other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock.,
447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held
that the determination of a constitutional question is necessary whenever it
is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev.
Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212
N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272];
Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt
[63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N.
W., 605), as where the right of a party is founded solely on a statute the
validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass.,
81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws
his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance
of the fact that the Probation Act is a new addition to our statute books and
its validity has never before been passed upon by the courts; that may
persons accused and convicted of crime in the City of Manila have applied
for probation; that some of them are already on probation; that more people
will likely take advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of about four
years since his first conviction. All wait the decision of this court on the
constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons
of public policy demand that the constitutionality of Act No. 4221 be now
resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S.,
500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913],
207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co.
[1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga
and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad,

supra, an analogous situation confronted us. We said: "Inasmuch as the


property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a new law
not yet interpreted by the courts, in the interest of the public welfare and for
the advancement of public policy, we have determined to overrule the
defense of want of jurisdiction in order that we may decide the main issue.
We have here an extraordinary situation which calls for a relaxation of the
general rule." Our ruling on this point was sustained by the Supreme Court of
the United States. A more binding authority in support of the view we have
taken can not be found.
We have reached the conclusion that the question of the constitutionality of
Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary
to enforce the Constitution. This court, by clear implication from the
provisions of section 2, subsection 1, and section 10, of Article VIII of the
Constitution, may declare an act of the national legislature invalid because in
conflict with the fundamental lay. It will not shirk from its sworn duty to
enforce the Constitution. And, in clear cases, it will not hesitate to give effect
to the supreme law by setting aside a statute in conflict therewith. This is of
the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature
that all reasonable doubts should be resolved in favor of the constitutionality
of a statute. An act of the legislature approved by the executive, is presumed
to be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10;
Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the Constitution and it must
be presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they did not intend to violate the Constitution.
The courts cannot but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the governments. (6
R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an
elective Legislature and an elective Chief Executive. It follows, therefore, that

the courts will not set aside a law as violative of the Constitution except in a
clear case. This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned
argument, called attention to the fact that the President of the Philippines
had already expressed his opinion against the constitutionality of the
Probation Act, adverting that as to the Executive the resolution of this
question was a foregone conclusion. Counsel, however, reiterated his
confidence in the integrity and independence of this court. We take notice of
the fact that the President in his message dated September 1, 1937,
recommended to the National Assembly the immediate repeal of the
Probation Act (No. 4221); that this message resulted in the approval of Bill
No. 2417 of the Nationality Assembly repealing the probation Act, subject to
certain conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very
likely unconstitutional." It is sufficient to observe in this connection that, in
vetoing the bill referred to, the President exercised his constitutional
prerogative. He may express the reasons which he may deem proper for
taking such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our determination.
Whether or not the Executive should express or in any manner insinuate his
opinion on a matter encompassed within his broad constitutional power of
veto but which happens to be at the same time pending determination in this
court is a question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances, however,
cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if
is ever necessary for us to make any vehement affirmance during this
formative period of our political history, it is that we are independent of the
Executive no less than of the Legislative department of our government
independent in the performance of our functions, undeterred by any
consideration, free from politics, indifferent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three principal
grounds: (1) That said Act encroaches upon the pardoning power of the
Executive; (2) that its constitutes an undue delegation of legislative power
and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as
the Jones Law, in force at the time of the approval of Act No. 4221, otherwise

known as the Probation Act, vests in the Governor-General of the Philippines


"the exclusive power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the Philippines. (Art.
VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones Law has
been omitted from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the offense, either
before or after conviction (Vide Constitution of the United States, Art. II, sec.
2;In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines
was thus empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light. The framers of
our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after
conviction". So, too, under the new Constitution, the pardoning power does
not extend to "cases of impeachment". This is also the rule generally
followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be
pleaded in bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not understood
that the king's royal grace is further restrained or abridged." (Vide, Ex
parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood
[1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio
St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In
England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or
profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines)
but extends to the whole punishment attached by law to the offense
committed. The House of Lords, on a conviction may, by its sentence, inflict
capital punishment, perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed,
together with removal from office and incapacity to hold office. (Com. vs.
Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons
he may grant, such conditions, restrictions and limitations as he may deem
proper. Amnesty may be granted by the President under the Constitution but
only with the concurrence of the National Assembly. We need not dwell at
length on the significance of these fundamental changes. It is sufficient for
our purposes to state that the pardoning power has remained essentially the
same. The question is: Has the pardoning power of the Chief Executive under
the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in
the Chief Executive. The exercise of the power may not, therefore, be vested

in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be
taken away nor fettered by any legislative restrictions, nor can like power be
given by the legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise
any powers appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . .
where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither
exercise such power itself nor delegate it elsewhere, nor interfere with or
control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases
cited.) If Act No. 4221, then, confers any pardoning power upon the courts it
is for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme
Court of the United States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law.
ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.)
Chief Justice White, after an exhaustive review of the authorities, expressed
the opinion of the court that under the common law the power of the court
was limited to temporary suspension and that the right to suspend
sentenced absolutely and permanently was vested in the executive branch of
the government and not in the judiciary. But, the right of Congress to
establish probation by statute was conceded. Said the court through its Chief
Justice: ". . . and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation legislation or such
other means as the legislative mind may devise, to such judicial discretion as
may be adequate to enable courts to meet by the exercise of an enlarged
but wise discretion the infinite variations which may be presented to them
for judgment, recourse must be had Congress whose legislative power on the
subject is in the very nature of things adequately complete." (Quoted in
Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of
a federal probation law. Such action was finally taken on March 4, 1925
(chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain number of
probation officers chosen by civil service. (Johnson, Probation for Juveniles
and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72
Law. ed., 309), the Supreme Court of the United States, through Chief Justice
Taft, held that when a person sentenced to imprisonment by a district court

has begun to serve his sentence, that court has no power under the
Probation Act of March 4, 1925 to grant him probation even though the term
at which sentence was imposed had not yet expired. In this case of Murray,
the constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from the report
of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following
statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending
sentence or by placing the defendants under state probation officers or
volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas.
1917B, 355), the Supreme Court denied the right of the district courts
to suspend sentenced. In the same opinion the court pointed out the
necessity for action by Congress if the courts were to exercise
probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but
it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all
but twelve states the law applies both to adult and juvenile offenders.
(see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by
inferior federal courts. In Riggs vs. United States supra, the Circuit Court of
Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions
under consideration have been reviewed by the Circuit Court of
Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of
the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to
contain an able and comprehensive review of the law applicable here.
It arose under the act we have to consider, and to it and the authorities

cited therein special reference is made (Nix vs. James, 7 F. [2d], 590,
594), as is also to a decision of the Circuit Court of Appeals of the
Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing
the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain
and unequivocal language, pointed to Congress as possessing the requisite
power to enact probation laws, that a federal probation law as actually
enacted in 1925, and that the constitutionality of the Act has been assumed
by the Supreme Court of the United States in 1928 and consistently
sustained by the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of
the United States, may legally enact a probation law under its broad power
to fix the punishment of any and all penal offenses. This conclusion is
supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the
province of the Legislature to denominate and define all classes of crime,
and to prescribe for each a minimum and maximum punishment." And in
State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment
for crime is very broad, and in the exercise of this power the general
assembly may confer on trial judges, if it sees fit, the largest discretion as to
the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine
Legislature has defined all crimes and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the desire to vest in the courts
particularly the trial courts large discretion in imposing the penalties
which the law prescribes in particular cases. It is believed that justice can
best be served by vesting this power in the courts, they being in a position to
best determine the penalties which an individual convict, peculiarly
circumstanced, should suffer. Thus, while courts are not allowed to refrain
from imposing a sentence merely because, taking into consideration the
degree of malice and the injury caused by the offense, the penalty provided
by law is clearly excessive, the courts being allowed in such case to submit
to the Chief Executive, through the Department of Justice, such statement as
it may deem proper (see art. 5, Revised Penal Code), in cases where both
mitigating and aggravating circumstances are attendant in the commission
of a crime and the law provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to offset one another in
consideration of their number and importance, and to apply the penalty
according to the result of such compensation. (Art. 63, rule 4, Revised Penal

Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article
64, paragraph 7, of the Revised Penal Code empowers the courts to
determine, within the limits of each periods, in case the penalty prescribed
by law contains three periods, the extent of the evil produced by the crime.
In the imposition of fines, the courts are allowed to fix any amount within the
limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the
culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same
Code provides that "a discretionary penalty shall be imposed" upon a person
under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed
by law for the crime which he has committed. Article 69 of the same Code
provides that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt from criminal liability in
the several cases mentioned in article 11 and 12 of the Code, "the courts
shall impose the penalty in the period which may be deemed proper, in view
of the number and nature of the conditions of exemption present or lacking."
And, in case the commission of what are known as "impossible" crimes, "the
court, having in mind the social danger and the degree of criminality shown
by the offender," shall impose upon him either arresto mayor or a fine
ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive
imprisonment is deducted form the entire term of imprisonment, except in
certain cases expressly mentioned (art. 29); the death penalty is not
imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members
thereof are not unanimous in their voting as to the propriety of the
imposition of the death penalty (art. 47, see also, sec. 133, Revised
Administrative Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant, or upon any
person over seventy years of age (art. 83); and when a convict shall become
insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended
with regard to the personal penalty during the period of such insanity or
imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various other
enactments, including the probation Act. There is the Indeterminate
Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended

by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting
the courts large discretion in imposing the penalties of the law. Section 1 of
the law as amended provides; "hereafter, in imposing a prison sentence for
an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code,
and to a minimum which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense; and if the offense is punished
by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the
law, excluded from the operation thereof. The Legislature has also enacted
the Juvenile Delinquency Law (Act No. 3203) which was subsequently
amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended
by Act No. 4117 of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99 of the National Assembly. In this Act is again
manifested the intention of the legislature to "humanize" the penal laws. It
allows, in effect, the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the execution of the
judgment in the discretion of the trial court, after due hearing and after
investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in
reality decreed that in certain cases no punishment at all shall be suffered by
the convict as long as the conditions of probation are faithfully observed. It
this be so, then, it cannot be said that the Probation Act comes in conflict
with the power of the Chief Executive to grant pardons and reprieves,
because, to use the language of the Supreme Court of New Mexico, "the
element of punishment or the penalty for the commission of a wrong, while
to be declared by the courts as a judicial function under and within the limits
of law as announced by legislative acts, concerns solely the procedure and
conduct of criminal causes, with which the executive can have nothing to
do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133
S.E., 843), the court upheld the constitutionality of the Georgia probation
statute against the contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor alone is vested
with the power to pardon after final sentence has been imposed by the
courts, the power of the courts to imposed any penalty which may be from
time to time prescribed by law and in such manner as may be defined cannot
be questioned."

We realize, of course, the conflict which the American cases disclose. Some
cases hold it unlawful for the legislature to vest in the courts the power to
suspend the operation of a sentenced, by probation or otherwise, as to do so
would encroach upon the pardoning power of the executive. (In re Webb
[1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9
Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev.,
150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla.
Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N.
S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291;
Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30
S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W.,
839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903],
109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United
States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark.,
620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166;
122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick
[1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60;
168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534;
35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64
Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.
Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court
[1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399;
79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909],
75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parteBates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac.,
698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23
L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs.
Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914],
149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y.
Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W.,
568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs.
Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C.,
466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs.
States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S.
W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.

State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914],
73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim.
Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394;
162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W.
[2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com.
[1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash.,
287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash.,
561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena
of authorities holding that the courts may be legally authorized by the
legislature to suspend sentence by the establishment of a system of
probation however characterized. State ex rel. Tingstand vs. Starwich
([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular
mention. In that case, a statute enacted in 1921 which provided for the
suspension of the execution of a sentence until otherwise ordered by the
court, and required that the convicted person be placed under the charge of
a parole or peace officer during the term of such suspension, on such terms
as the court may determine, was held constitutional and as not giving the
court a power in violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide, also, Re Giannini
[1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N.
E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals
of New York said:
. . . The power to suspend sentence and the power to grant reprieves
and pardons, as understood when the constitution was adopted, are
totally distinct and different in their nature. The former was always a
part of the judicial power; the latter was always a part of the executive
power. The suspension of the sentence simply postpones the judgment
of the court temporarily or indefinitely, but the conviction and liability
following it, and the civil disabilities, remain and become operative
when judgment is rendered. A pardon reaches both the punishment
prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of
the law, the offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and restores him to
all his civil rights. It makes him, as it were, a new man, and gives him a
new credit and capacity. (Ex parteGarland, 71 U. S., 4 Wall., 333; 18
Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519;
Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

The framers of the federal and the state constitutions were perfectly
familiar with the principles governing the power to grant pardons, and
it was conferred by these instruments upon the executive with full
knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power
was understood, it did not comprehend any part of the judicial
functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were
still left separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after conviction, a
power inherent in such courts at common law, which was understood
when the constitution was adopted to be an ordinary judicial function,
and which, ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any just sense,
upon the powers of the executive, as they have been understood and
practiced from the earliest times. (Quoted with approval in Directors of
Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265,
Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He
is not finally and completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation Act, the probationer's
case is not terminated by the mere fact that he is placed on probation.
Section 4 of the Act provides that the probation may be definitely terminated
and the probationer finally discharged from supervision only after the period
of probation shall have been terminated and the probation officer shall have
submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody subject to the control of the
probation officer and of the court; and, he may be rearrested upon the nonfulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of punishment,

to be applied by the judge in a proper case, in substitution of the


imprisonment and find prescribed by the criminal laws. For this reason
its application is as purely a judicial act as any other sentence carrying
out the law deemed applicable to the offense. The executive act of
pardon, on the contrary, is against the criminal law, which binds and
directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality
of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d],
567, 569.)
Probation should also be distinguished from reprieve and from commutation
of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R.
A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the
petitioners as authority in support of their contention that the power to grant
pardons and reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the legislature upon the
courts by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held that the probation
statute of the state in terms conferred on the district courts the power to
grant pardons to persons convicted of crime, it also distinguished between
suspensions sentence on the one hand, and reprieve and commutation of
sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions of
the various courts; it being held that the distinction between a
"reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension
is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words &
Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the
power confiding in the Governor to grant commutations of punishment,
for a commutations is not but to change the punishment assessed to a
less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac.,
525), the Supreme Court of Montana had under consideration the validity of
the adult probation law of the state enacted in 1913, now found in sections
12078-12086, Revised Codes of 1921. The court held the law valid as not
impinging upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well


understood meaning at the time our Constitution was adopted, and no
one of them was intended to comprehend the suspension of the
execution of the judgment as that phrase is employed in sections
12078-12086. A "pardon" is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the
individual on whom it is bestowed from the punishment the law inflicts
for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693;
35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County,
26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71).
"Commutation" is a remission of a part of the punishment; a
substitution of a less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People,
1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution
(Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute
similar to our section 12078 has been determined; but the same
objections have been urged against parole statutes which vest the
power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to
Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning
power of the Executive. The pardoning power, in respect to those serving
their probationary sentences, remains as full and complete as if the
Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his
rearrest and imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof
constitute, as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the

legislative, the executive and the judicial. Each of these departments of the
government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the
matters within its jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly
by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The
Philippine Legislature or the National Assembly may not escape its duties
and responsibilities by delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional and void, on the
principle that potestas delegata non delegare potest. This principle is said to
have originated with the glossators, was introduced into English law through
a misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions forbidding the
delegation of judicial power, and found its way into America as an
enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social
Sciences, p. 66.) The classic statement of the rule is that of Locke, namely:
"The legislative neither must nor can transfer the power of making laws to
anybody else, or place it anywhere but where the people have." (Locke on
Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the
following oft-quoted language: "One of the settled maxims in constitutional
law is, that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where the
sovereign power of the state has located the authority, there it must remain;
and by the constitutional agency alone the laws must be made until the
Constitution itself is charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot relieve itself of
the responsibilities by choosing other agencies upon which the power shall
be devolved, nor can it substitute the judgment, wisdom, and patriotism of
any other body for those to which alone the people have seen fit to confide
this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p.
224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This
court posits the doctrine "on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting immediately
upon the matter of legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate

legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro


[1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our
system of government, that local affairs shall be managed by local
authorities, and general affairs by the central authorities; and hence while
the rule is also fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising local self government
has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of
the authority to prescribed local regulations, according to immemorial
practice, subject of course to the interposition of the superior in cases of
necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle,
Congress is powered to delegate legislative power to such agencies in the
territories of the United States as it may select. A territory stands in the
same relation to Congress as a municipality or city to the state government.
(United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51
L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138;
24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also
sustained the delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C.
L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has
ceased to be republican in form because of its adoption of the initiative and
referendum has been held not to be a judicial but a political question (Pacific
States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32
Sup. Cet. Rep., 224), and as the constitutionality of such laws has been
looked upon with favor by certain progressive courts, the sting of the
decisions of the more conservative courts has been pretty well drawn.
(Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A.,
113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac.,
402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by the Constitution
itself. Section 14, paragraph 2, of article VI of the Constitution of the
Philippines provides that "The National Assembly may by law authorize the
President, subject to such limitations and restrictions as it may impose, to fix
within specified limits, tariff rates, import or export quotas, and tonnage and
wharfage dues." And section 16 of the same article of the Constitution
provides that "In times of war or other national emergency, the National
Assembly may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond the scope of

this decision to determine whether or not, in the absence of the foregoing


constitutional provisions, the President could be authorized to exercise the
powers thereby vested in him. Upon the other hand, whatever doubt may
have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at
rates not lower than those now provided for provincial fiscals. Said
probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of legislative
power or not, it is usual to inquire whether the statute was complete in all its
terms and provisions when it left the hands of the legislature so that nothing
was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922],
43 Phil., 1), this court adhered to the foregoing rule when it held an act of the
legislature void in so far as it undertook to authorize the Governor-General,
in his discretion, to issue a proclamation fixing the price of rice and to make
the sale of it in violation of the proclamation a crime. (See and cf. Compaia
General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil.,
136.) The general rule, however, is limited by another rule that to a certain
extent matters of detail may be left to be filled in by rules and regulations to
be adopted or promulgated by executive officers and administrative boards.
(6 R. C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should
take effect in their respective provinces. They are the agents or delegates of
the legislature in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination of a
variety of cases on delegation of power to administrative bodies will show
that the ratio decidendiis at variance but, it can be broadly asserted that the
rationale revolves around the presence or absence of a standard or rule of
action or the sufficiency thereof in the statute, to aid the delegate in
exercising the granted discretion. In some cases, it is held that the standard

is sufficient; in others that is insufficient; and in still others that it is entirely


lacking. As a rule, an act of the legislature is incomplete and hence invalid if
it does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of the
discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847;
107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law",
sec 174.) In the case at bar, what rules are to guide the provincial boards in
the exercise of their discretionary power to determine whether or not the
Probation Act shall apply in their respective provinces? What standards are
fixed by the Act? We do not find any and none has been pointed to us by the
respondents. The probation Act does not, by the force of any of its provisions,
fix and impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we may use the
language of Justice Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise arbitrary
discretion. By section 11 if the Act, the legislature does not seemingly on its
own authority extend the benefits of the Probation Act to the provinces but in
reality leaves the entire matter for the various provincial boards to
determine. In other words, the provincial boards of the various provinces are
to determine for themselves, whether the Probation Law shall apply to their
provinces or not at all. The applicability and application of the Probation Act
are entirely placed in the hands of the provincial boards. If the provincial
board does not wish to have the Act applied in its province, all that it has to
do is to decline to appropriate the needed amount for the salary of a
probation officer. The plain language of the Act is not susceptible of any
other interpretation. This, to our minds, is a virtual surrender of legislative
power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of
power to make the law, which necessarily involves a discretion as to what it
shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory
Construction, sec 68.) To the same effect are the decision of this court
in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil.,
547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case,
this court held it lawful for the legislature to direct non-Christian inhabitants

to take up their habitation on unoccupied lands to be selected by the


provincial governor and approved by the provincial board. In the third case, it
was held proper for the legislature to vest in the Governor-General authority
to suspend or not, at his discretion, the prohibition of the importation of the
foreign cattle, such prohibition to be raised "if the conditions of the country
make this advisable or if deceased among foreign cattle has ceased to be a
menace to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive
or administrative officials of rules and regulations to carry into effect the
provisions of a law. If we were, recurrence to our own decisions would be
sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29
Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as
law after it leaves the hands of the legislature. It is true that laws may be
made effective on certain contingencies, as by proclamation of the executive
or the adoption by the people of a particular community (6 R. C. L., 116, 170172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the
United State ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins.
Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing
essentially legislative in ascertaining the existence of facts or conditions as
the basis of the taking into effect of a law. That is a mental process common
to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In
reVillage of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A.,
938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of
legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public
Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign
Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in
Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations
finds restatement in Prof. Willoughby's treatise on the Constitution of the
United States in the following language speaking of declaration of
legislative power to administrative agencies: "The principle which permits

the legislature to provide that the administrative agent may determine when
the circumstances are such as require the application of a law is defended
upon the ground that at the time this authority is granted, the rule of public
policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines
that, under given circumstances, certain executive or administrative action is
to be taken, and that, under other circumstances, different of no action at all
is to be taken. What is thus left to the administrative official is not the
legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to
the terms of the law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs.
Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative
will must, of course, come from Congress, but the ascertainment of the
contingency upon which the Act shall take effect may be left to such
agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The
legislature, then may provide that a contingencies leaving to some other
person or body the power to determine when the specified contingencies has
arisen. But, in the case at bar, the legislature has not made the operation of
the Prohibition Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have already said, the
entire operation or non-operation of the law upon the provincial board. the
discretion vested is arbitrary because it is absolute and unlimited. A
provincial board need not investigate conditions or find any fact, or await the
happening of any specified contingency. It is bound by no rule, limited by
no principle of expendiency announced by the legislature. It may take into
consideration certain facts or conditions; and, again, it may not. It may have
any purpose or no purpose at all. It need not give any reason whatsoever for
refusing or failing to appropriate any funds for the salary of a probation
officer. This is a matter which rest entirely at its pleasure. The fact that at
some future time we cannot say when the provincial boards may
appropriate funds for the salaries of probation officers and thus put the law
into operation in the various provinces will not save the statute. The time of
its taking into effect, we reiterate, would yet be based solely upon the will of
the provincial boards and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain facts or conditions by a
person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the
power of suspending the operation of the Probation Law in their respective
provinces. In some jurisdiction, constitutions provided that laws may be

suspended only by the legislature or by its authority. Thus, section 28, article
I of the Constitution of Texas provides that "No power of suspending laws in
this state shall be exercised except by the legislature"; and section 26, article
I of the Constitution of Indiana provides "That the operation of the laws shall
never be suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a
law, or the execution or operation of a law, a law may not be suspended as
to certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec.,
174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution
of this commonwealth, it is declared that the power of suspending the
laws, or the execution of the laws, ought never to be exercised but by
the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for.
Many of the articles in that declaration of rights were adopted from the
Magna Charta of England, and from the bill of rights passed in the reign
of William and Mary. The bill of rights contains an enumeration of the
oppressive acts of James II, tending to subvert and extirpate the
protestant religion, and the laws and liberties of the kingdom; and the
first of them is the assuming and exercising a power of dispensing with
and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by
legal authority without consent of parliament, is illegal. In the tenth
section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void and of no effect,
except a dispensation be allowed of in such statute." There is an
implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English
Constitution, "that absolute despotic power, which must in all
governments reside somewhere," is intrusted to the parliament: 1 Bl.
Com., 160.
The principles of our government are widely different in this particular.
Here the sovereign and absolute power resides in the people; and the
legislature can only exercise what is delegated to them according to
the constitution. It is obvious that the exercise of the power in question
would be equally oppressive to the subject, and subversive of his right

to protection, "according to standing laws," whether exercised by one


man or by a number of men. It cannot be supposed that the people
when adopting this general principle from the English bill of rights and
inserting it in our constitution, intended to bestow by implication on
the general court one of the most odious and oppressive prerogatives
of the ancient kings of England. It is manifestly contrary to the first
principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and
advantages which are denied to all others under like circumstances; or
that ant one should be subject to losses, damages, suits, or actions
from which all others under like circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the
owner of any dog liable to the owner of domestic animals wounded by it for
the damages without proving a knowledge of it vicious disposition. By a
provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be
governed by the provisions of the act of which that section constituted a
part. It was held that the legislature could not confer that power. The court
observed that it could no more confer such a power than to authorize the
board of supervisors of a county to abolish in such county the days of grace
on commercial paper, or to suspend the statute of limitations. (Slinger vs.
Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void
for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a
provision that "if the county court of any county should be of opinion that the
provisions of the act should not be enforced, they might, in their discretion,
suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period
specified in such order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former
act, and yet it is left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own terms a
law in every county not excepted by name in the act. It did not, then, require
the county court to do any act in order to give it effect. But being the law in
the county, and having by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court is . . . empowered,
to suspend this act and revive the repealed provisions of the former act.
When the question is before the county court for that tribunal to determine
which law shall be in force, it is urge before us that the power then to be

exercised by the court is strictly legislative power, which under our


constitution, cannot be delegated to that tribunal or to any other body of
men in the state. In the present case, the question is not presented in the
abstract; for the county court of Saline county, after the act had been for
several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject
of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392;
32 S., 687.)
True, the legislature may enact laws for a particular locality different from
those applicable to other localities and, while recognizing the force of the
principle hereinabove expressed, courts in may jurisdiction have sustained
the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects
purely local in character which should receive different treatment in different
localities placed under different circumstances. "They relate to subjects
which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground, that the subject,
though not embraced within the ordinary powers of municipalities to make
by-laws and ordinances, is nevertheless within the class of public regulations,
in respect to which it is proper that the local judgment should control."
(Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do
not deny the right of local self-government and the propriety of leaving
matters of purely local concern in the hands of local authorities or for the
people of small communities to pass upon, we believe that in matters of
general of general legislation like that which treats of criminals in general,
and as regards the general subject of probation, discretion may not be
vested in a manner so unqualified and absolute as provided in Act No. 4221.
True, the statute does not expressly state that the provincial boards may
suspend the operation of the Probation Act in particular provinces but,
considering that, in being vested with the authority to appropriate or not the
necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or
operate in their respective provinces, the provincial boards are in reality
empowered by the legislature to suspend the operation of the Probation Act
in particular provinces, the Act to be held in abeyance until the provincial
boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be
done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad
[1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the


legislature not only in the expression of what may be termed legislative
policy but in the elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile." (People vs. Reynolds,
5 Gilman, 1.) It has been said that popular government lives because of the
inexhaustible reservoir of power behind it. It is unquestionable that the mass
of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than
by the express language of the instrument imposing the restraint, or by
particular provisions which by clear intendment, have that effect. (Angara vs.
Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran
[1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a
constitution is both a grant and a limitation of power and one of these timehonored limitations is that, subject to certain exceptions, legislative power
shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and
unlawful delegation of legislative authority to the provincial boards and is, for
this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our
Bill of Rights which prohibits the denial to any person of the equal protection
of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all
the tree grand departments of our government and on the subordinate
instrumentalities and subdivision thereof, and on many constitutional power,
like the police power, taxation and eminent domain. The equal protection of
laws, sententiously observes the Supreme Court of the United States, "is a
pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina,
249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be
formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22
Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against
some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs.
California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C.
& S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to the purposes

of the law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis.,
327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs.
Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic
Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep.,
337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242
U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs.
Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17
Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148,
1149.)
In the case at bar, however, the resultant inequality may be said to flow from
the unwarranted delegation of legislative power, although perhaps this is not
necessarily the result in every case. Adopting the example given by one of
the counsel for the petitioners in the course of his oral argument, one
province may appropriate the necessary fund to defray the salary of a
probation officer, while another province may refuse or fail to do so. In such a
case, the Probation Act would be in operation in the former province but not
in the latter. This means that a person otherwise coming within the purview
of the law would be liable to enjoy the benefits of probation in one province
while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for
the salaries of the probation officers in their respective provinces, in which
case no inequality would result for the obvious reason that probation would
be in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person
coming within the purview of the Probation Act would be entitled to avail of
the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the
salary of the probation officer which is the situation now and, also, if we
accept the contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation
officer. These different situations suggested show, indeed, that while
inequality may result in the application of the law and in the conferment of
the benefits therein provided, inequality is not in all cases the necessary
result. But whatever may be the case, it is clear that in section 11 of the
Probation Act creates a situation in which discrimination and inequality are
permitted or allowed. There are, to be sure, abundant authorities requiring
actual denial of the equal protection of the law before court should assume
the task of setting aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that section 11 of Act No.

4221 permits of the denial of the equal protection of the law and is on that
account bad. We see no difference between a law which permits of such
denial. A law may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within the
constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U.
S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.
ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs.
Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley
[1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U.
S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18
Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S.,
219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield
[1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other
words, statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep.,
475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78
Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the
equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil
Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R.,
386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R.
A., 858.) Under section 11 of the Probation Act, not only may said Act be in
force in one or several provinces and not be in force in other provinces, but
one province may appropriate for the salary of the probation officer of a
given year and have probation during that year and thereafter decline
to make further appropriation, and have no probation is subsequent years.
While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a
situation which is intolerable in a government of laws, and to prove how easy
it is, under the Act, to make the guaranty of the equality clause but "a rope
of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154;
41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of
Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that
case, the Supreme Court of the United States affirmed the decision of this
court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs.
Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991),
the guaranty of the equality clause does not require territorial uniformity. It
should be observed, however, that this case concerns the right to preliminary
investigations in criminal cases originally granted by General Orders No. 58.
No question of legislative authority was involved and the alleged denial of

the equal protection of the laws was the result of the subsequent enactment
of Act No. 612, amending the charter of the City of Manila (Act No. 813) and
providing in section 2 thereof that "in cases triable only in the court of first
instance of the City of Manila, the defendant . . . shall not be entitled as of
right to a preliminary examination in any case where the prosecuting
attorney, after a due investigation of the facts . . . shall have presented an
information against him in proper form . . . ." Upon the other hand, an
analysis of the arguments and the decision indicates that the investigation
by the prosecuting attorney although not in the form had in the provinces
was considered a reasonable substitute for the City of Manila, considering
the peculiar conditions of the city as found and taken into account by the
legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case
has reference to a situation where the constitution of Missouri permits
appeals to the Supreme Court of the state from final judgments of any circuit
court, except those in certain counties for which counties the constitution
establishes a separate court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional
and void because it is also repugnant to equal-protection clause of our
Constitution.
Section 11 of the Probation Act being unconstitutional and void for the
reasons already stated, the next inquiry is whether or not the entire Act
should be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its removal
will leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs.
Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49
Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25
Phil., 44, 47), this court stated the well-established rule concerning
partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from the

valid, may stand and be enforced. But in order to do this, the valid
portion must be in so far independent of the invalid portion that it is
fair to presume that the Legislative would have enacted it by itself if
they had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S.
R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete,
intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions
must be eliminated without causing results affecting the main purpose
of the Act, in a manner contrary to the intention of the Legislature.
(State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs.
Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly
vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim,
240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs.
Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any
purpose whatever, and what remains must express the legislative will,
independently of the void part, since the court has no power to
legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S.,
839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs.
Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed.,
1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards
provided for the salaries of probation officers were inoperative on
constitutional grounds, the remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the suggestions but for the fact
that said section is, in our opinion, is inseparably linked with the other
portions of the Act that with the elimination of the section what would be left
is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of
that system. The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates
not lower than those provided for provincial fiscals. Without such action on
the part of the various boards, no probation officers would be appointed by
the Secretary of Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to show that if not one
of the provinces and this is the actual situation now appropriate the
necessary fund for the salary of a probation officer, probation under Act No.

4221 would be illusory. There can be no probation without a probation officer.


Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and
visit the probationer. Every probation officer is given, as to the person placed
in probation under his care, the powers of the police officer. It is the duty of
the probation officer to see that the conditions which are imposed by the
court upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or
probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at
his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall
endeavor to be employed regularly; "(g) Shall remain or reside within a
specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time
make; and
(h) Shall refrain from violating any law, statute, ordinance, or any bylaw or regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period
and terms of probation. Under section 4, it is only after the period of
probation, the submission of a report of the probation officer and appropriate
finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer
finally discharged from supervision. Under section 5, if the court finds that
there is non-compliance with said conditions, as reported by the probation
officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and

after an opportunity to be heard, the court may revoke, continue or modify


the probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all
persons placed on probation under his supervision a statement of the period
and conditions of their probation, and to instruct them concerning the same;
to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other
measures, not inconsistent with the conditions imposed by court as may
seem most suitable, to bring about improvement in their conduct and
condition; to report in writing to the court having jurisdiction over said
probationers at least once every two months concerning their conduct and
condition; to keep records of their work; make such report as are necessary
for the information of the Secretary of Justice and as the latter may require;
and to perform such other duties as are consistent with the functions of the
probation officer and as the court or judge may direct. The probation officers
provided for in this Act may act as parole officers for any penal or
reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole
officer of persons released on parole under Act Number Forty-one Hundred
and Three, without additional compensation."
It is argued, however, that even without section 11 probation officers maybe
appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its
supervision and control, a Probation Office under the direction of a
Chief Probation Officer to be appointed by the Governor-General with
the advise and consent of the Senate who shall receive a salary of four
eight hundred pesos per annum. To carry out this Act there is hereby
appropriated out of any funds in the Insular Treasury not otherwise
appropriated, the sum of fifty thousand pesos to be disbursed by the
Secretary of Justice, who is hereby authorized to appoint probation
officers and the administrative personnel of the probation officer under
civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau of Civil
Service, and shall fix the compensation of such probation officers and
administrative personnel until such positions shall have been included
in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be
appointed for the provinces under section 11. It may be said, reddendo

singula singulis, that the probation officers referred to in section 10 abovequoted are to act as such, not in the various provinces, but in the central
office known as the Probation Office established in the Department of Justice,
under the supervision of the Chief Probation Officer. When the law provides
that "the probation officer" shall investigate and make reports to the court
(secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the
"probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to
visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on
the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the
period and terms of probation (sec. 3, last par.), it means the probation
officer who is in charge of a particular probationer in a particular province. It
never could have been intention of the legislature, for instance, to require
the probationer in Batanes, to report to a probationer officer in the City of
Manila, or to require a probation officer in Manila to visit the probationer in
the said province of Batanes, to place him under his care, to supervise his
conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many
probation officers as there are provinces or groups of provinces is, of course
possible. But this would be arguing on what the law may be or should be and
not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law
better otherwise than it is. But much as has been said regarding progressive
interpretation and judicial legislation we decline to amend the law. We are
not permitted to read into the law matters and provisions which are not
there. Not for any purpose not even to save a statute from the doom of
invalidity.
Upon the other hand, the clear intention and policy of the law is not to make
the Insular Government defray the salaries of probation officers in the
provinces but to make the provinces defray them should they desire to have
the Probation Act apply thereto. The sum of P50,000, appropriated "to carry
out the purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These probation
officers are to receive such compensations as the Secretary of Justice may fix
"until such positions shall have been included in the Appropriation Act". It
was the intention of the legislature to empower the Secretary of Justice to fix
the salaries of the probation officers in the provinces or later on to include
said salaries in an appropriation act. Considering, further, that the sum of
P50,000 appropriated in section 10 is to cover, among other things, the

salaries of the administrative personnel of the Probation Office, what would


be left of the amount can hardly be said to be sufficient to pay even nominal
salaries to probation officers in the provinces. We take judicial notice of the
fact that there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos appropriated for the
central office, there can be in each province, as intended, a probation officer
with a salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is conceded
that in our case there can be a system of probation in the provinces without
probation officers.
Probation as a development of a modern penology is a commendable
system. Probation laws have been enacted, here and in other countries, to
permit what modern criminologist call the "individualization of the
punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in
order to aid in the rehabilitation of a penitent offender. It is believed that, in
any cases, convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity for
reformation and avoids imprisonment so long as the convicts gives promise
of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law.
ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,
665.) The Welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside
because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different
aspects presented by able counsel for both parties, as well in their
memorandums as in their oral argument. We have examined the cases
brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the
examination of the cases and in then analysis of the legal principles involved
we have inclined to adopt the line of action which in our opinion, is supported
better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated cases
brought to our attention, except where the point or principle is settled
directly or by clear implication by the more authoritative pronouncements of
the Supreme Court of the United States. This line of approach is justified
because:

(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
(b) The situation of s state of the American Union of the District of
Columbia with reference to the Federal Government of the United
States is not the situation of the province with respect to the Insular
Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of
the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice
Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed.,
937, 949) and, "to keep pace with . . . new developments of times and
circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western
Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal,
Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should
be interpreted having in view existing local conditions and
environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of
prohibition is, accordingly, granted. Without any pronouncement regarding
costs. So ordered.

[G.R. No. 148571. September 24, 2002]

GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the


Philippine Department of Justice, petitioner, vs. Hon. GUILLERMO G.
PURGANAN, Morales, and Presiding Judge, Regional Trial Court of Manila,
Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO,
respondents.
DECISION
PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and


hearing before warrants for their arrest can be issued? Equally important, are
they entitled to the right to bail and provisional liberty while the extradition
proceedings are pending? In general, the answer to these two novel
questions is No. The explanation of and the reasons for, as well as the
exceptions to, this rule are laid out in this Decision.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court,
seeking to void and set aside the Orders dated May 23, 2001[1] and July 3,
2001[2] issued by the Regional Trial Court (RTC) of Manila, Branch 42.[3] The
first assailed Order set for hearing petitioners application for the issuance of
a warrant for the arrest of Respondent Mark B. Jimenez.

The second challenged Order, on the other hand, directed the issuance of a
warrant, but at the same time granted bail to Jimenez. The dispositive
portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause
against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of
the respondent be issued. Consequently and taking into consideration
Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court
fixes the reasonable amount of bail for respondents temporary liberty at ONE
MILLION PESOS (Php 1,000,000.00), the same to be paid in cash.

Furthermore respondent is directed to immediately surrender to this Court


his passport and the Bureau of Immigration and Deportation is likewise
directed to include the name of the respondent in its Hold Departure List.[4]

Essentially, the Petition prays for the lifting of the bail Order, the cancellation
of the bond, and the taking of Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice


v. Ralph C. Lantion.[5]

Pursuant to the existing RP-US Extradition Treaty,[6] the United States


Government, through diplomatic channels, sent to the Philippine Government
Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos.
0597, 0720 and 0809 and accompanied by duly authenticated documents
requesting the extradition of Mark B. Jimenez, also known as Mario Batacan
Crespo. Upon receipt of the Notes and documents, the secretary of foreign
affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate
action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also
known as the Extradition Law.

Upon learning of the request for his extradition, Jimenez sought and was
granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch
25.[7] The TRO prohibited the Department of Justice (DOJ) from filing with the
RTC a petition for his extradition. The validity of the TRO was, however,
assailed by the SOJ in a Petition before this Court in the said GR No. 139465.
Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was
ordered to furnish private respondent copies of the extradition request and
its supporting papers and to grant the latter a reasonable period within
which to file a comment and supporting evidence.[8]

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued
its October 17, 2000 Resolution.[9] By an identical vote of 9-6 -- after three
justices changed their votes -- it reconsidered and reversed its earlier
Decision. It held that private respondent was bereft of the right to notice and
hearing during the evaluation stage of the extradition process. This
Resolution has become final and executory.

Finding no more legal obstacle, the Government of the United States of


America, represented by the Philippine DOJ, filed with the RTC on May 18,
2001, the appropriate Petition for Extradition which was docketed as
Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez
was the subject of an arrest warrant issued by the United States District
Court for the Southern District of Florida on April 15, 1999. The warrant had
been issued in connection with the following charges in Indictment No. 9900281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit
certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion,
in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of
Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of

Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions,
in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18
US Code Section 2. In order to prevent the flight of Jimenez, the Petition
prayed for the issuance of an order for his immediate arrest pursuant to
Section 6 of PD No. 1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it
an Urgent Manifestation/Ex-Parte Motion,[10] which prayed that petitioners
application for an arrest warrant be set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez
and set the case for hearing on June 5, 2001. In that hearing, petitioner
manifested its reservations on the procedure adopted by the trial court
allowing the accused in an extradition case to be heard prior to the issuance
of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their
respective memoranda. In his Memorandum, Jimenez sought an alternative
prayer: that in case a warrant should issue, he be allowed to post bail in the
amount of P100,000.

The alternative prayer of Jimenez was also set for hearing on June 15, 2001.
Thereafter, the court below issued its questioned July 3, 2001 Order,
directing the issuance of a warrant for his arrest and fixing bail for his
temporary liberty at one million pesos in cash.[11] After he had surrendered
his passport and posted the required cash bond, Jimenez was granted
provisional liberty via the challenged Order dated July 4, 2001.[12]

Hence, this Petition.[13]

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave


abuse of discretion amounting to lack or excess of jurisdiction in adopting a
procedure of first hearing a potential extraditee before issuing an arrest
warrant under Section 6 of PD No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave


abuse of discretion amounting to lack or excess of jurisdiction in granting the
prayer for bail and in allowing Jimenez to go on provisional liberty because:

1. An extradition court has no power to authorize bail, in the absence of any


law that provides for such power.

2. Section 13, Article III (right to bail clause) of the 1987 Philippine
Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended,
which [were] relied upon, cannot be used as bases for allowing bail in
extradition proceedings.

3. The presumption is against bail in extradition proceedings or proceedings


leading to extradition.

4. On the assumption that bail is available in extradition proceedings or


proceedings leading to extradition, bail is not a matter of right but only of
discretion upon clear showing by the applicant of the existence of special
circumstances.

5. Assuming that bail is a matter of discretion in extradition proceedings, the


public respondent received no evidence of special circumstances which may
justify release on bail.

6. The risk that Jimenez will flee is high, and no special circumstance exists
that will engender a well-founded belief that he will not flee.

7. The conditions attached to the grant of bail are ineffectual and do not
ensure compliance by the Philippines with its obligations under the RP-US
Extradition Treaty.

8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case
entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch
17, Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in
granting bail, had been recalled before the issuance of the subject bail
orders.[14]

In sum, the substantive questions that this Court will address are: (1)
whether Jimenez is entitled to notice and hearing before a warrant for his
arrest can be issued, and (2) whether he is entitled to bail and to provisional
liberty while the extradition proceedings are pending. Preliminarily, we shall
take up the alleged prematurity of the Petition for Certiorari arising from
petitioners failure to file a Motion for Reconsideration in the RTC and to seek
relief in the Court of Appeals (CA), instead of in this Court.[15] We shall also
preliminarily discuss five extradition postulates that will guide us in disposing
of the substantive issues.

The Courts Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for
Reconsideration in the Extradition Court: (1) the issues were fully considered
by such court after requiring the parties to submit their respective

memoranda and position papers on the matter and thus, the filing of a
reconsideration motion would serve no useful purpose; (2) the assailed
orders are a patent nullity, absent factual and legal basis therefor; and (3)
the need for relief is extremely urgent, as the passage of sufficient time
would give Jimenez ample opportunity to escape and avoid extradition; and
(4) the issues raised are purely of law.[16]

For resorting directly to this Court instead of the CA, petitioner submits the
following reasons: (1) even if the petition is lodged with the Court of Appeals
and such appellate court takes cognizance of the issues and decides them,
the parties would still bring the matter to this Honorable Court to have the
issues resolved once and for all [and] to have a binding precedent that all
lower courts ought to follow; (2) the Honorable Court of Appeals had in one
case[17] ruled on the issue by disallowing bail but the court below refused to
recognize the decision as a judicial guide and all other courts might likewise
adopt the same attitude of refusal; and (3) there are pending issues on bail
both in the extradition courts and the Court of Appeals, which, unless guided
by the decision that this Honorable Court will render in this case, would
resolve to grant bail in favor of the potential extraditees and would give
them opportunity to flee and thus, cause adverse effect on the ability of the
Philippines to comply with its obligations under existing extradition treaties.
[18]

As a general rule, a petition for certiorari before a higher court will not
prosper unless the inferior court has been given, through a motion for
reconsideration, a chance to correct the errors imputed to it. This rule,
though, has certain exceptions: (1) when the issue raised is purely of law, (2)
when public interest is involved, or (3) in case of urgency.[19] As a fourth
exception, the Court has also ruled that the filing of a motion for
reconsideration before availment of the remedy of certiorari is not a sine qua
non, when the questions raised are the same as those that have already
been squarely argued and exhaustively passed upon by the lower court.[20]
Aside from being of this nature, the issues in the present case also involve
pure questions of law that are of public interest. Hence, a motion for
reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction
to issue writs of certiorari when there are special and important reasons
therefor.[21] In Fortich v. Corona[22]we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of
the petition filed directly [before] it if compelling reasons, or the nature and
importance of the issues raised, warrant. This has been the judicial policy to
be observed and which has been reiterated in subsequent cases, namely: Uy
vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and,
Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma:

x x x. A direct invocation of the Supreme Courts original jurisdiction to issue


these writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This is
established policy. x x x.

Pursuant to said judicial policy, we resolve to take primary jurisdiction over


the present petition in the interest of speedy justice and to avoid future
litigations so as to promptly put an end to the present controversy which, as
correctly observed by petitioners, has sparked national interest because of
the magnitude of the problem created by the issuance of the assailed
resolution. Moreover, x x x requiring the petitioners to file their petition first
with the Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests
of justice is well-entrenched in our jurisprudence. We reiterate what we said
in Piczon vs. Court of Appeals:[23]

Be it remembered that rules of procedure are but mere tools designed to


facilitate the attainment of justice. Their strict and rigid application, which
would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided. Time and again, this Court has
suspended its own rules and excepted a particular case from their operation
whenever the higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have been
taken by the parties involved and proceed directly to the merits of the case.

In a number of other exceptional cases,[24] we held as follows:

This Court has original jurisdiction, concurrent with that of Regional Trial
Courts and the Court of Appeals, over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus, and we entertain direct resort
to us in cases where special and important reasons or exceptional and
compelling circumstances justify the same.

In the interest of justice and to settle once and for all the important issue of
bail in extradition proceedings, we deem it best to take cognizance of the
present case. Such proceedings constitute a matter of first impression over
which there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or


construction of the treaty and the law on extradition. A cardinal rule in the
interpretation of a treaty or a law is to ascertain and give effect to its intent.
[25] Since PD 1069 is intended as a guide for the implementation of
extradition treaties to which the Philippines is a signatory,[26] understanding
certain postulates of extradition will aid us in properly deciding the issues
raised here.

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing
crime[27] by facilitating the arrest and the custodial transfer[28] of a
fugitive[29] from one state to the other.

With the advent of easier and faster means of international travel, the flight
of affluent criminals from one country to another for the purpose of
committing crime and evading prosecution has become more frequent.
Accordingly, governments are adjusting their methods of dealing with
criminals and crimes that transcend international boundaries.

Today, a majority of nations in the world community have come to look upon
extradition as the major effective instrument of international co-operation in

the suppression of crime.[30] It is the only regular system that has been
devised to return fugitives to the jurisdiction of a court competent to try
them in accordance with municipal and international law.[31]

An important practical effect x x x of the recognition of the principle that


criminals should be restored to a jurisdiction competent to try and punish
them is that the number of criminals seeking refuge abroad will be reduced.
For to the extent that efficient means of detection and the threat of
punishment play a significant role in the deterrence of crime within the
territorial limits of a State, so the existence of effective extradition
arrangements and the consequent certainty of return to the locus delicti
commissi play a corresponding role in the deterrence of flight abroad in order
to escape the consequence of crime. x x x. From an absence of extradition
arrangements flight abroad by the ingenious criminal receives direct
encouragement and thus indirectly does the commission of crime itself.[32]

In Secretary v. Lantion[33] we explained:

The Philippines also has a national interest to help in suppressing crimes and
one way to do it is to facilitate the extradition of persons covered by treaties
duly entered [into] by our government. More and more, crimes are becoming
the concern of one world. Laws involving crimes and crime prevention are
undergoing universalization. One manifest purpose of this trend towards
globalization is to deny easy refuge to a criminal whose activities threaten
the peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability
to crimes, especially transnational crimes.

Indeed, in this era of globalization, easier and faster international travel, and
an expanding ring of international crimes and criminals, we cannot afford to
be an isolationist state. We need to cooperate with other states in order to
improve our chances of suppressing crime in our own country.

2. The Requesting State Will Accord Due Process to the Accused

Second, an extradition treaty presupposes that both parties thereto have


examined, and that both accept and trust, each others legal system and
judicial process.[34] More pointedly, our duly authorized representatives
signature on an extradition treaty signifies our confidence in the capacity
and the willingness of the other state to protect the basic rights of the person
sought to be extradited.[35] That signature signifies our full faith that the
accused will be given, upon extradition to the requesting state, all relevant
and basic rights in the criminal proceedings that will take place therein;
otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion,[36] extradition


proceedings are not criminal in nature. In criminal proceedings, the
constitutional rights of the accused are at fore; in extradition which is sui
generis -- in a class by itself -- they are not.

An extradition [proceeding] is sui generis. It is not a criminal proceeding


which will call into operation all the rights of an accused as guaranteed by
the Bill of Rights. To begin with, the process of extradition does not involve
the determination of the guilt or innocence of an accused. His guilt or
innocence will be adjudged in the court of the state where he will be
extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an
extraditee x x x.

xxxxxxxxx

There are other differences between an extradition proceeding and a criminal


proceeding. An extradition proceeding is summary in nature while criminal
proceedings involve a full-blown trial. In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards. In terms of the
quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited
upon showing of the existence of a prima facie case. Finally, unlike in a

criminal case where judgment becomes executory upon being rendered final,
in an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him. The
United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the
demands of the nations foreign relations before making the ultimate decision
to extradite.

Given the foregoing, it is evident that the extradition court is not called upon
to ascertain the guilt or the innocence of the person sought to be extradited.
[37] Such determination during the extradition proceedings will only result in
needless duplication and delay. Extradition is merely a measure of
international judicial assistance through which a person charged with or
convicted of a crime is restored to a jurisdiction with the best claim to try
that person. It is not part of the function of the assisting authorities to enter
into questions that are the prerogative of that jurisdiction.[38] The ultimate
purpose of extradition proceedings in court is only to determine whether the
extradition request complies with the Extradition Treaty, and whether the
person sought is extraditable.[39]

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the


Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty
carries the presumption that its implementation will serve the national
interest.

Fulfilling our obligations under the Extradition Treaty promotes


comity[40]with the requesting state. On the other hand, failure to fulfill our
obligations thereunder paints a bad image of our country before the world
community. Such failure would discourage other states from entering into
treaties with us, particularly an extradition treaty that hinges on reciprocity.
[41]

Verily, we are bound by pacta sunt servanda to comply in good faith with our
obligations under the Treaty.[42] This principle requires that we deliver the
accused to the requesting country if the conditions precedent to extradition,

as set forth in the Treaty, are satisfied. In other words, [t]he demanding
government, when it has done all that the treaty and the law require it to do,
is entitled to the delivery of the accused on the issue of the proper warrant,
and the other government is under obligation to make the surrender.[43]
Accordingly, the Philippines must be ready and in a position to deliver the
accused, should it be found proper.

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks. This prima


facie presumption finds reinforcement in the experience[44] of the executive
branch: nothing short of confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order to thwart their extradition
to the requesting state.

The present extradition case further validates the premise that persons
sought to be extradited have a propensity to flee. Indeed, extradition
hearings would not even begin, if only the accused were willing to submit to
trial in the requesting country.[45] Prior acts of herein respondent -- (1)
leaving the requesting state right before the conclusion of his indictment
proceedings there; and (2) remaining in the requested state despite learning
that the requesting state is seeking his return and that the crimes he is
charged with are bailable -- eloquently speak of his aversion to the processes
in the requesting state, as well as his predisposition to avoid them at all cost.
These circumstances point to an ever-present, underlying high risk of flight.
He has demonstrated that he has the capacity and the will to flee. Having
fled once, what is there to stop him, given sufficient opportunity, from fleeing
a second time?

First Substantive Issue:


Is Respondent Entitled to Notice and Hearing
Before the Issuance of a Warrant of Arrest?

Petitioner contends that the procedure adopted by the RTC --informing the
accused, a fugitive from justice, that an Extradition Petition has been filed
against him, and that petitioner is seeking his arrest -- gives him notice to

escape and to avoid extradition. Moreover, petitioner pleads that such


procedure may set a dangerous precedent, in that those sought to be
extradited -- including terrorists, mass murderers and war criminals -- may
invoke it in future extradition cases.

On the other hand, Respondent Jimenez argues that he should not be


hurriedly and arbitrarily deprived of his constitutional right to liberty without
due process. He further asserts that there is as yet no specific law or rule
setting forth the procedure prior to the issuance of a warrant of arrest, after
the petition for extradition has been filed in court; ergo, the formulation of
that procedure is within the discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It


states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of


Notices.- (1) Immediately upon receipt of the petition, the presiding judge of
the court shall, as soon as practicable, summon the accused to appear and
to answer the petition on the day and hour fixed in the order. [H]e may issue
a warrant for the immediate arrest of the accused which may be served any
where within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the
ends of justice. Upon receipt of the answer, or should the accused after
having received the summons fail to answer within the time fixed, the
presiding judge shall hear the case or set another date for the hearing
thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued,
shall be promptly served each upon the accused and the attorney having
charge of the case. (Emphasis ours)

Does this provision sanction RTC Judge Purganans act of immediately setting
for hearing the issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses


the word immediate to qualify the arrest of the accused. This qualification
would be rendered nugatory by setting for hearing the issuance of the arrest
warrant. Hearing entails sending notices to the opposing parties,[46]
receiving facts and arguments[47] from them,[48] and giving them time to
prepare and present such facts and arguments. Arrest subsequent to a
hearing can no longer be considered immediate. The law could not have
intended the word as a mere superfluity but, on the whole, as a means of
imparting a sense of urgency and swiftness in the determination of whether
a warrant of arrest should be issued.

By using the phrase if it appears, the law further conveys that accuracy is
not as important as speed at such early stage. The trial court is not expected
to make an exhaustive determination to ferret out the true and actual
situation, immediately upon the filing of the petition. From the knowledge
and the material then available to it, the court is expected merely to get a
good first impression -- a prima facie finding -- sufficient to make a speedy
initial determination as regards the arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication


among others, were the following: (1) Annex H, the Affidavit executed on
May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign
Financing Task Force of the Criminal Division of the US Department of Justice;
(2) Annexes H to G, evidentiary Appendices of various exhibits that
constituted evidence of the crimes charged in the Indictment, with Exhibits 1
to 120 (duly authenticated exhibits that constituted evidence of the crimes
charged in the Indictment); (3) Annex BB, the Exhibit I Appendix of Witness
[excerpts] Statements Referenced in the Affidavit of Angela Byers and
enclosed Statements in two volumes; (4) Annex GG, the Exhibit J Table of
Contents for Supplemental Evidentiary Appendix with enclosed Exhibits 121
to 132; and (5) Annex MM, the Exhibit L Appendix of Witness [excerpts]
Statements Referenced in the Affidavit of Betty Steward and enclosed
Statements in two volumes.[49]

It is evident that respondent judge could have already gotten an impression


from these records adequate for him to make an initial determination of
whether the accused was someone who should immediately be arrested in
order to best serve the ends of justice. He could have determined whether
such facts and circumstances existed as would lead a reasonably discreet

and prudent person to believe that the extradition request was prima facie
meritorious. In point of fact, he actually concluded from these supporting
documents that probable cause did exist. In the second questioned Order, he
stated:

In the instant petition, the documents sent by the US Government in support


of [its] request for extradition of herein respondent are enough to convince
the Court of the existence of probable cause to proceed with the hearing
against the extraditee.[50]

We stress that the prima facie existence of probable cause for hearing the
petition and, a priori, for issuing an arrest warrant was already evident from
the Petition itself and its supporting documents. Hence, after having already
determined therefrom that a prima facie finding did exist, respondent judge
gravely abused his discretion when he set the matter for hearing upon
motion of Jimenez.[51]

Moreover, the law specifies that the court sets a hearing upon receipt of the
answer or upon failure of the accused to answer after receiving the
summons. In connection with the matter of immediate arrest, however, the
word hearing is notably absent from the provision. Evidently, had the holding
of a hearing at that stage been intended, the law could have easily so
provided. It also bears emphasizing at this point that extradition proceedings
are summary[52]in nature. Hence, the silence of the Law and the Treaty
leans to the more reasonable interpretation that there is no intention to
punctuate with a hearing every little step in the entire proceedings.

It is taken for granted that the contracting parties intend something


reasonable and something not inconsistent with generally recognized
principles of International Law, nor with previous treaty obligations towards
third States. If, therefore, the meaning of a treaty is ambiguous, the
reasonable meaning is to be preferred to the unreasonable, the more
reasonable to the less reasonable x x x .[53]

Verily, as argued by petitioner, sending to persons sought to be extradited a


notice of the request for their arrest and setting it for hearing at some future
date would give them ample opportunity to prepare and execute an escape.

Neither the Treaty nor the Law could have intended that consequence, for
the very purpose of both would have been defeated by the escape of the
accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez,


does not require a notice or a hearing before the issuance of a warrant of
arrest. It provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

To determine probable cause for the issuance of arrest warrants, the


Constitution itself requires only the examination -- under oath or affirmation
-- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants
of arrest.

In Ho v. People[54] and in all the cases cited therein, never was a judge
required to go to the extent of conducting a hearing just for the purpose of
personally determining probable cause for the issuance of a warrant of
arrest. All we required was that the judge must have sufficient supporting
documents upon which to make his independent judgment, or at the very
least, upon which to verify the findings of the prosecutor as to the existence
of probable cause.[55]

In Webb v. De Leon,[56] the Court categorically stated that a judge was not
supposed to conduct a hearing before issuing a warrant of arrest:

Again, we stress that before issuing warrants of arrest, judges merely


determine personally the probability, not the certainty of guilt of an accused.
In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial
determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence.

At most, in cases of clear insufficiency of evidence on record, judges merely


further examine complainants and their witnesses.[57] In the present case,
validating the act of respondent judge and instituting the practice of hearing
the accused and his witnesses at this early stage would be discordant with
the rationale for the entire system. If the accused were allowed to be heard
and necessarily to present evidence during the prima facie determination for
the issuance of a warrant of arrest, what would stop him from presenting his
entire plethora of defenses at this stage -- if he so desires -- in his effort to
negate a prima facie finding? Such a procedure could convert the
determination of a prima facie case into a full-blown trial of the entire
proceedings and possibly make trial of the main case superfluous. This
scenario is also anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action
is not sufficient to justify the adoption of a set of procedures more protective
of the accused. If a different procedure were called for at all, a more
restrictive one -- not the opposite -- would be justified in view of respondents
demonstrated predisposition to flee.

Since this is a matter of first impression, we deem it wise to restate the


proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the
judge must study them and make, as soon as possible, a prima facie finding
whether (a) they are sufficient in form and substance, (b) they show
compliance with the Extradition Treaty and Law, and (c) the person sought is
extraditable. At his discretion, the judge may require the submission of
further documentation or may personally examine the affiants and witnesses
of the petitioner. If, in spite of this study and examination, no prima facie
finding[58] is possible, the petition may be dismissed at the discretion of the
judge.

On the other hand, if the presence of a prima facie case is determined, then
the magistrate must immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to answer the petition and to
appear at scheduled summary hearings. Prior to the issuance of the warrant,
the judge must not inform or notify the potential extraditee of the pendency
of the petition, lest the latter be given the opportunity to escape and
frustrate the proceedings. In our opinion, the foregoing procedure will best
serve the ends of justice in extradition cases.

Second Substantive Issue:


Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

Art. III, Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive bail shall
not be required.

Respondent Mark B. Jimenez maintains that this constitutional provision


secures the right to bail of all persons, including those sought to be
extradited. Supposedly, the only exceptions are the ones charged with
offenses punishable with reclusion perpetua, when evidence of guilt is
strong. He also alleges the relevance to the present case of Section 4[59] of
Rule 114 of the Rules of Court which, insofar as practicable and consistent
with the summary nature of extradition proceedings, shall also apply
according to Section 9 of PD 1069.

On the other hand, petitioner claims that there is no provision in the


Philippine Constitution granting the right to bail to a person who is the
subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word conviction, the
constitutional provision on bail quoted above, as well as Section 4 of Rule
114 of the Rules of Court, applies only when a person has been arrested and
detained for violation of Philippine criminal laws. It does not apply to
extradition proceedings, because extradition courts do not render judgments
of conviction or acquittal.

Moreover, the constitutional right to bail flows from the presumption of


innocence in favor of every accused who should not be subjected to the loss
of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt.[60] It follows that the constitutional
provision on bail will not apply to a case like extradition, where the
presumption of innocence is not at issue.

The provision in the Constitution stating that the right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended
does not detract from the rule that the constitutional right to bail is available
only in criminal proceedings. It must be noted that the suspension of the
privilege of the writ of habeas corpus finds application only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.[61] Hence, the second sentence in the constitutional provision
on bail merely emphasizes the right to bail in criminal proceedings for the
aforementioned offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in
the United States is not an argument to grant him one in the present case. To
stress, extradition proceedings are separate and distinct from the trial for the
offenses for which he is charged. He should apply for bail before the courts
trying the criminal cases against him, not before the extradition court.

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti[62] in arguing that,


constitutionally, [n]o one shall be deprived of x x x liberty x x x without due
process of law.

Contrary to his contention, his detention prior to the conclusion of the


extradition proceedings does not amount to a violation of his right to due
process. We iterate the familiar doctrine that the essence of due process is
the opportunity to be heard[63] but, at the same time, point out that the
doctrine does not always call for a prior opportunity to be heard.[64] Where
the circumstances -- such as those present in an extradition case -- call for it,
a subsequent opportunity to be heard is enough.[65] In the present case,
respondent will be given full opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition. Hence, there is no
violation of his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the


immediate deprivation of his liberty prior to his being heard. That his arrest
and detention will not be arbitrary is sufficiently ensured by (1) the DOJs
filing in court the Petition with its supporting documents after a
determination that the extradition request meets the requirements of the law
and the relevant treaty; (2) the extradition judges independent prima facie
determination that his arrest will best serve the ends of justice before the
issuance of a warrant for his arrest; and (3) his opportunity, once he is under
the courts custody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the


extradition of respondent, proceedings had already been conducted in that
country. But because he left the jurisdiction of the requesting state before
those proceedings could be completed, it was hindered from continuing with
the due processes prescribed under its laws. His invocation of due process
now has thus become hollow. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.

In this light, would it be proper and just for the government to increase the
risk of violating its treaty obligations in order to accord Respondent Jimenez
his personal liberty in the span of time that it takes to resolve the Petition for
Extradition? His supposed immediate deprivation of liberty without the due
process that he had previously shunned pales against the governments

interest in fulfilling its Extradition Treaty obligations and in cooperating with


the world community in the suppression of crime. Indeed, [c]onstitutional
liberties do not exist in a vacuum; the due process rights accorded to
individuals must be carefully balanced against exigent and palpable
government interests.[66]

Too, we cannot allow our country to be a haven for fugitives, cowards and
weaklings who, instead of facing the consequences of their actions, choose
to run and hide. Hence, it would not be good policy to increase the risk of
violating our treaty obligations if, through overprotection or excessively
liberal treatment, persons sought to be extradited are able to evade arrest or
escape from our custody. In the absence of any provision -- in the
Constitution, the law or the treaty -- expressly guaranteeing the right to bail
in extradition proceedings, adopting the practice of not granting them bail,
as a general rule, would be a step towards deterring fugitives from coming to
the Philippines to hide from or evade their prosecutors.

The denial of bail as a matter of course in extradition cases falls into place
with and gives life to Article 14[67] of the Treaty, since this practice would
encourage the accused to voluntarily surrender to the requesting state to cut
short their detention here. Likewise, their detention pending the resolution of
extradition proceedings would fall into place with the emphasis of the
Extradition Law on the summary nature of extradition cases and the need for
their speedy disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases.
However, the judiciary has the constitutional duty to curb grave abuse of
discretion[68] and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights.[69] Furthermore, we believe that
the right to due process is broad enough to include the grant of basic
fairness to extraditees. Indeed, the right to due process extends to the life,
liberty or property of every person. It is dynamic and resilient, adaptable to
every situation calling for its application.[70]

Accordingly and to best serve the ends of justice, we believe and so hold
that, after a potential extraditee has been arrested or placed under the
custody of the law, bail may be applied for and granted as an exception, only
upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community; and (2) that
there exist special, humanitarian and compelling circumstances[71]
including, as a matter of reciprocity, those cited by the highest court in the
requesting state when it grants provisional liberty in extradition cases
therein.

Since this exception has no express or specific statutory basis, and since it is
derived essentially from general principles of justice and fairness, the
applicant bears the burden of proving the above two-tiered requirement with
clarity, precision and emphatic forcefulness. The Court realizes that
extradition is basically an executive, not a judicial, responsibility arising from
the presidential power to conduct foreign relations. In its barest concept, it
partakes of the nature of police assistance amongst states, which is not
normally a judicial prerogative. Hence, any intrusion by the courts into the
exercise of this power should be characterized by caution, so that the vital
international and bilateral interests of our country will not be unreasonably
impeded or compromised. In short, while this Court is ever protective of the
sporting idea of fair play, it also recognizes the limits of its own prerogatives
and the need to fulfill international obligations.

Along this line, Jimenez contends that there are special circumstances that
are compelling enough for the Court to grant his request for provisional
release on bail. We have carefully examined these circumstances and shall
now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a


member of the House of Representatives. On that basis, he claims that his
detention will disenfranchise his Manila district of 600,000 residents. We are
not persuaded. In People v. Jalosjos,[72] the Court has already debunked the
disenfranchisement argument when it ruled thus:

When the voters of his district elected the accused-appellant to Congress,


they did so with full awareness of the limitations on his freedom of action.
They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a
more drastic illustration, if voters elect a person with full knowledge that he
is suffering from a terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of


constitutional equal protection.

The Constitution guarantees: x x x nor shall any person be denied the equal
protection of laws. This simply means that all persons similarly situated shall
be treated alike both in rights enjoyed and responsibilities imposed. The
organs of government may not show any undue favoritism or hostility to any
person. Neither partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows


different treatment? Is being a Congressman a substantial differentiation
which removes the accused-appellant as a prisoner from the same class as
all persons validly confined under law?

The performance of legitimate and even essential duties by public officers


has never been an excuse to free a person validly [from] prison. The duties
imposed by the mandate of the people are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of
government. The accused-appellant is only one of 250 members of the
House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in
the physical absence of one or a few of its members. Depending on the
exigency of Government that has to be addressed, the President or the
Supreme Court can also be deemed the highest for that particular duty. The
importance of a function depends on the need for its exercise. The duty of a
mother to nurse her infant is most compelling under the law of nature. A
doctor with unique skills has the duty to save the lives of those with a
particular affliction. An elective governor has to serve provincial constituents.
A police officer must maintain peace and order. Never has the call of a

particular duty lifted a prisoner into a different classification from those


others who are validly restrained by law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise,


insidious discriminations are made in favor of or against groups or types of
individuals.

The Court cannot validate badges of inequality. The necessities imposed by


public welfare may justify exercise of government authority to regulate even
if thereby certain groups may plausibly assert that their interests are
disregarded.

We, therefore, find that election to the position of Congressman is not a


reasonable classification in criminal law enforcement. The functions and
duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of
movement. Lawful arrest and confinement are germane to the purposes of
the law and apply to all those belonging to the same class.[73]

It must be noted that even before private respondent ran for and won a
congressional seat in Manila, it was already of public knowledge that the
United States was requesting his extradition. Hence, his constituents were or
should have been prepared for the consequences of the extradition case
against their representative, including his detention pending the final
resolution of the case. Premises considered and in line with Jalosjos, we are
constrained to rule against his claim that his election to public office is by
itself a compelling reason to grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition


proceedings are lengthy, it would be unfair to confine him during the
pendency of the case. Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are resorted to merely to
determine whether the extradition petition and its annexes conform to the
Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule,

intended to address issues relevant to the constitutional rights available to


the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly
delay the proceedings. This is quite another matter that is not at issue here.
Thus, any further discussion of this point would be merely anticipatory and
academic.

However, if the delay is due to maneuverings of respondent, with all the


more reason would the grant of bail not be justified. Giving premium to delay
by considering it as a special circumstance for the grant of bail would be
tantamount to giving him the power to grant bail to himself. It would also
encourage him to stretch out and unreasonably delay the extradition
proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he
stresses that he learned of the extradition request in June 1999; yet, he has
not fled the country. True, he has not actually fled during the preliminary
stages of the request for his extradition. Yet, this fact cannot be taken to
mean that he will not flee as the process moves forward to its conclusion, as
he hears the footsteps of the requesting government inching closer and
closer. That he has not yet fled from the Philippines cannot be taken to mean
that he will stand his ground and still be within reach of our government if
and when it matters; that is, upon the resolution of the Petition for
Extradition.

In any event, it is settled that bail may be applied for and granted by the trial
court at anytime after the applicant has been taken into custody and prior to
judgment, even after bail has been previously denied. In the present case,
the extradition court may continue hearing evidence on the application for
bail, which may be granted in accordance with the guidelines in this
Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is


totally unnecessary; in fact, it is a cop-out. The parties -- in particular,
Respondent Jimenez -- have been given more than sufficient opportunity
both by the trial court and this Court to discuss fully and exhaustively private
respondents claim to bail. As already stated, the RTC set for hearing not only
petitioners application for an arrest warrant, but also private respondents
prayer for temporary liberty. Thereafter required by the RTC were
memoranda on the arrest, then position papers on the application for bail,
both of which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply,
the lengthy Memoranda and the Position Papers of both parties. Additionally,
it has patiently heard them in Oral Arguments, a procedure not normally
observed in the great majority of cases in this Tribunal. Moreover, after the
Memos had been submitted, the parties -- particularly the potential
extraditee -- have bombarded this Court with additional pleadings -- entitled
Manifestations by both parties and Counter-Manifestation by private
respondent -- in which the main topic was Mr. Jimenezs plea for bail.

A remand would mean that this long, tedious process would be repeated in
its entirety. The trial court would again hear factual and evidentiary matters.
Be it noted, however, that, in all his voluminous pleadings and verbal
propositions, private respondent has not asked for a remand. Evidently, even
he realizes that there is absolutely no need to rehear factual matters. Indeed,
the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it
lies in his legal arguments. Remanding the case will not solve this utter lack
of persuasion and strength in his legal reasoning.

In short, this Court -- as shown by this Decision and the spirited Concurring,
Separate and Dissenting Opinions written by the learned justices themselves
-- has exhaustively deliberated and carefully passed upon all relevant
questions in this case. Thus, a remand will not serve any useful purpose; it
will only further delay these already very delayed proceedings,[74] which our
Extradition Law requires to be summary in character. What we need now is
prudent and deliberate speed, not unnecessary and convoluted delay. What
is needed is a firm decision on the merits, not a circuitous cop-out.

Then, there is also the suggestion that this Court is allegedly disregarding
basic freedoms when a case is one of extradition. We believe that this charge
is not only baseless, but also unfair. Suffice it to say that, in its length and
breath, this Decision has taken special cognizance of the rights to due
process and fundamental fairness of potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten


points:

1. The ultimate purpose of extradition proceedings is to determine whether


the request expressed in the petition, supported by its annexes and the
evidence that may be adduced during the hearing of the petition, complies
with the Extradition Treaty and Law; and whether the person sought is
extraditable. The proceedings are intended merely to assist the requesting
state in bringing the accused -- or the fugitive who has illegally escaped -back to its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have


reposed its trust in the reliability or soundness of the legal and judicial
system of its treaty partner, as well as in the ability and the willingness of
the latter to grant basic rights to the accused in the pending criminal case
therein.

3. By nature then, extradition proceedings are not equivalent to a criminal


case in which guilt or innocence is determined. Consequently, an extradition
case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a courts request to police
authorities for the arrest of the accused who is at large or has escaped
detention or jumped bail. Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie presumption is that the person
would escape again if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is

sufficient in form and substance, whether it complies with the Extradition


Treaty and Law, and whether the person sought is extraditable. The
magistrate has discretion to require the petitioner to submit further
documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a
warrant for the arrest of the potential extraditee and summons him or her to
answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail.
Since the applicants have a history of absconding, they have the burden of
showing that (a) there is no flight risk and no danger to the community; and
(b) there exist special, humanitarian or compelling circumstances. The
grounds used by the highest court in the requesting state for the grant of bail
therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to
judicial discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to


fundamental fairness. Due process does not always call for a prior
opportunity to be heard. A subsequent opportunity is sufficient due to the
flight risk involved. Indeed, available during the hearings on the petition and
the answer is the full chance to be heard and to enjoy fundamental fairness
that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of


liberty, a bulwark of democracy and the conscience of society. But it is also
well aware of the limitations of its authority and of the need for respect for
the prerogatives of the other co-equal and co-independent organs of
government.

8. We realize that extradition is essentially an executive, not a judicial,


responsibility arising out of the presidential power to conduct foreign
relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise
review authority to prevent or excise grave abuse and tyranny. They should

not allow contortions, delays and over-due process every little step of the
way, lest these summary extradition proceedings become not only inutile but
also sources of international embarrassment due to our inability to comply in
good faith with a treaty partners simple request to return a fugitive. Worse,
our country should not be converted into a dubious haven where fugitives
and escapees can unreasonably delay, mummify, mock, frustrate,
checkmate and defeat the quest for bilateral justice and international
cooperation.

10. At bottom, extradition proceedings should be conducted with all


deliberate speed to determine compliance with the Extradition Treaty and
Law; and, while safeguarding basic individual rights, to avoid the legalistic
contortions, delays and technicalities that may negate that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23,
2001 is hereby declared NULL and VOID, while the challenged Order dated
July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark
Jimenez. The bail bond posted by private respondent is CANCELLED. The
Regional Trial Court of Manila is directed to conduct the extradition
proceedings before it, with all deliberate speed pursuant to the spirit and the
letter of our Extradition Treaty with the United States as well as our
Extradition Law. No costs.

SO ORDERED.
[G.R. No. 144464. November 27, 2001]
GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL
SERVICE COMMISSION, respondent.
DECISION
KAPUNAN, J.:
Assailed in the instant petition is the decision of the Court of Appeals
upholding Resolution No. 981695 of the Civil Service Commission for
allegedly being contrary to law and jurisprudence.
The facts are as follows:

On September 9, 1994, the Chairperson of the Civil Service Commission


(CSC), received a letter from a private individual, Carmelita B. Esteban,
claiming that, during the examinations for non-professional in the career civil
service, given by the Civil Service Commission, on July 30, 1989 in Quezon
City, Zenaida C. Paitim, the Municipal Treasurer of Norzagaray, Bulacan,
falsely pretending to be the examinee, Gilda Cruz, a co-employee in the said
office, took the examinations for the latter. Carmelita Esteban requested the
CSC to investigate the matter, appending to said letter, pictures purporting
to be those of Gilda Cruz and Zenaida Paitim.
On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission,
issued a Memorandum to Eliseo Gatchalian, the Director of the Management
Information Office of the Commission, requesting the latter to furnish her
with the picture seat plan of the room where Gilda G. Cruz was during the
said examination, to ascertain the veracity of the letter-complaint. Eliseo S.
Gatchalian did furnish Erlinda Rosas with certified true copies of the picture
seat plans of the rooms where Gilda G. Cruz was assigned not only in the
1989 but also in the 1987 and 1988 career service (sub-professional)
examinations. On November 8, 1994, Erlinda Rosas thereby wrote a
Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated
November 8, 1994, declaring that based on the record, she found a prima
facie case against Zenaida Paitim and Gilda G. Cruz.
On the basis of said memorandum, a fact finding investigation was
conducted. On March 31, 1995, a "Formal Charge" for "Dishonesty, Grave
Misconduct, and Conduct Prejudicial to the Best Interest of the Service"
signed by Bella Amilhasan, Director IV of the Civil Service Commission
Regional Office No. 3 was filed against Gilda Cruz and Zenaida C. Paitim, with
the Civil Service Commission, docketed as Administrative Case No. D3-95052, which reads as follows:
FORMAL CHARGE
MESDAMES:
This Office has found after a fact finding investigation that a prima facie case
exists against you for DISHONESTY, GRAVE MISCONDUCT and CONDUCT
PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE, committed as follows:
"That Gilda Cruz applied to take the July 30, 1989 Career Service
Subprofessional examination. A verification of our records revealed that the
picture of Cruz pasted in the Picture Seat Plan of the said examination held at
Room 21 of the Ramon Magsaysay Elementary School, Quezon City, bears no

resemblance to the pictures of Cruz as appearing in the picture seat plans of


the previous Career Service Subprofessional Examinations which she took
last July 26, 1987 and July 31, 1988 respectively. It would appear that the
purported picture of Cruz pasted in the Picture Seat Plan of the said July 30,
1989 examination is the picture of a different person. Further verification
showed that this picture belongs to a certain Zenaida Paitim, Municipal
Treasurer of Norzagaray, Bulacan who apparently took the said examination
on behalf of Cruz and on the basis of the application bearing the name and
personal circumstances of Cruz."
WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in
writing and under oath within five (5) days from receipt hereof. To support
your Answer, you may submit supporting documents/sworn statements.
In your Answer, you should state whether you elect to have a formal
investigation or waive your right to said investigations should your Answer
be found not satisfactory.
You are advised that you are entitled to the assistance of a counsel.
By Authority of the Commission:
(Sgd.) Della A. Amilhasan
Director IV[1]
The petitioners filed their Answer to the charge entering a general denial
of the material averments of the "Formal Charge." They also declared that
they were electing a formal investigation on the matter. The petitioners
subsequently filed a Motion to Dismiss averring that if the investigation will
continue, they will be deprived of their right to due process because the Civil
Service Commission was the complainant, the Prosecutor and the Judge, all
at the same time.
On July 17, 1995, Director Bella A. Amilhasan issued an order denying the
motion.[2] The subsequent motion for reconsideration of said order was
likewise dismissed.
Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct
the formal administrative investigation of petitioners' case.
On November 16, 1995, Dulce J. Cochon issued an "Investigation Report
and Recommendation" finding the Petitioners guilty of "Dishonesty" and

ordering their dismissal from the government service, the decretal portion of
which reads as follows:
WHEREFORE, foregoing premises considered, this Office recommends the
dismissal from the service with all its accessory penalties of respondents
Zenaida Paitim and Gilda Cruz, both employees of the Municipality of
Norzagary , Bulacan for the offenses of Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service. Furthermore, this
Office recommends the filing of criminal charges against them that shall
serve as a deterrent to all possible plans of making a mockery to the sanctity
of Civil Service Law and Rules as well as the constitutional mandate that 'A
public office is a public trust. (Idem. Supra.)[3]
The aforesaid "Investigation Report and Recommendation" was then
forwarded, to the Civil Service Commission for its consideration and
resolution.
On July 1, 1998, the Civil Service Commission issued Resolution No.
981695 finding the petitioners guilty of the charges and ordered their
dismissal from the government service. The decretal portion reads as follows:
WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of
Dishonesty. Accordingly, they are imposed the penalty of dismissal from the
service with all its accessory penalties. The Civil Service (Subprofessional)
Eligibility of Gilda Cruz is also cancelled.
Let a copy of this Resolution, as w