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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President , MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office, and FLORENDO S.
PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well
as the principle that laws to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or cause the
publication in the Official Gazette of various presidential decrees, letters of
instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325,
326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427,
429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050, 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, 241-245, 248, 251, 253-261, 263-269, 271-273, 275283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325,
327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386,
396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501,
399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878879, 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,
1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547,
1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609,
1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762,
1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807,
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2145, 2147-2161, 2163-2244.

1270,
1550161217311764181218391866,
1952,
2046-

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457471, 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,
380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed
outright on the ground that petitioners have no legal personality or standing to
bring the instant petition. The view is submitted that in the absence of any
showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute this

mandamus proceeding, they are not being "aggrieved parties" within the
meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and
praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do
the act required to be done to Protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition
concerns a public right and its object is to compel the performance of a public
duty, they need not show any specific interest for their petition to be given due
course.
The issue posed is not one of first impression. As early as the 1910 case
of Severino vs. Governor General, 3 this Court held that while the general rule is
that "a writ of mandamus would be granted to a private individual only in those
cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with
the public at large," and "it is for the public officers exclusively to apply for the
writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are
regarded as the real party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or special
interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd
ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to compel
the Governor General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority


supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to
be enforced. If the general rule in America were otherwise, we
think that it would not be applicable to the case at bar for the
reason 'that it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for the rule,
because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and
reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general
rule insisted upon by counsel for the respondent. The
circumstances which surround this case are different from
those in the United States, inasmuch as if the relator is not a
proper party to these proceedings no other person could be, as
we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present petition.
Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners were
not allowed to institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the Solicitor General,
the government officer generally empowered to represent the people, has
entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws themselves
provide for their own effectivity dates. It is thus submitted that since the
presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for
their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it
is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court has ruled that
publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of

publication is material for determining its date of effectivity, which is the


fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates
the effectivity of laws with the fact of publication. Considered in the light of
other statutes applicable to the issue at hand, the conclusion is easily reached
that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1]
all important legisiative acts and resolutions of a public nature
of the, Congress of the Philippines; [2] all executive and
administrative orders and proclamations, except such as have
no general applicability; [3] decisions or abstracts of decisions
of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so
published; [4] such documents or classes of documents as
may be required so to be published by law; and [5] such
documents or classes of documents as the President of the
Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to
be published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people
have bestowed upon the President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansaand for the diligent ones,
ready access to the legislative recordsno such publicity accompanies the lawmaking 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.

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.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

MELENCIO-HERRERA, J., concurring:


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

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.

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.

PLANA, J., concurring (with qualification):

Cuevas and Alampay, JJ., concur.

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.

GUTIERREZ, Jr., J., concurring:


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

DE LA FUENTE, J., concurring:


I concur insofar as the opinion declares the unpublished decrees and issuances
of a public nature or general applicability ineffective, until due publication
thereof.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 105364*

June 28, 2001

PHILIPPINE VETERANS BANK EMPLOYEES UNION-N.U.B.E. and


PERFECTO V. FERNANDEZ, petitioners,
vs.
HONORABLE BENJAMIN VEGA, Presiding Judge of Branch 39 of the
REGIONAL TRIAL COURT of Manila, the CENTRAL BANK OF THE
PHILIPPINES and THE LIQUIDATOR OF THE PHILIPPINE VETERANS
BANK, respondents

DECISION

Hence, the instant petition.

KAPUNAN, J.:

Petitioners argue that with the passage of R.A. 7169, the liquidation court
became functus officio, and no longer had the authority to continue with
liquidation proceedings.

May a liquidation court continue with liquidation proceedings of the Philippine


Veterans Bank (PVB) when Congress had mandated its rehabilitation and
reopening?
This is the sole issue raised in the instant Petition for Prohibition with Petition
for Preliminary Injunction and application for Ex Parte Temporary Restraining
Order.
The antecedent facts of the case are as follows:
Sometime in 1985, the Central Bank of the Philippines (Central Bank, for
brevity) filed with Branch 39 of the Regional Trial Court of Manila a Petition for
Assistance in the Liquidation of the Philippine Veterans Bank, the same
docketed as Case No. SP-32311. Thereafter, the Philipppine Veterans Bank
Employees Union-N.U.B.E., herein petitioner, represented by petitioner Perfecto
V. Fernandez, filed claims for accrued and unpaid employee wages and benefits
with said court in SP-32311.1
After lengthy proceedings, partial payment of the sums due to the employees
were made. However, due to the piecemeal hearings on the benefits, many
remain unpaid.2
On March 8, 1991, petitioners moved to disqualify the respondent judge from
hearing the above case on grounds of bias and hostility towards petitioners. 3
On January 2, 1992, the Congress enacted Republic Act No. 7169 providing for
the rehabilitation of the Philippine Veterans Bank. 4
Thereafter, petitioners filed with the labor tribunals their residual claims for
benefits and for reinstatement upon reopening of the bank. 5
Sometime in May 1992, the Central Bank issued a certificate of authority
allowing the PVB to reopen.6

In a Resolution, dated June 8, 1992, the Supreme Court resolved to issue a


Temporary Restraining Order enjoining the trial court from further proceeding
with the case.
On June 22, 1992, VOP Security & Detective Agency (VOPSDA) and its 162
security guards filed a Motion for Intervention with prayer that they be
excluded from the operation of the Temporary Restraining Order issued by the
Court. They alleged that they had filed a motion before Branch 39 of the RTC of
Manila, in SP-No. 32311, praying that said court order PVB to pay their
backwages and salary differentials by authority of R.A. No 6727, Wage Orders
No. NCR-01 and NCR-01-Ad and Wage Orders No. NCR-02 and NCR-02-A; and,
that said court, in an Order dated June 5, 1992, approved therein movants case
and directed the bank liquidator or PVB itself to pay the backwages and
differentials in accordance with the computation incorporated in the order. Said
intervenors likewise manifested that there was an error in the computation of
the monetary benefits due them.
On August 18, 1992, petitioners, pursuant to the Resolution of this Court, dated
July 6, 1992, filed their Comment opposing the Motion for Leave to File
Intervention and for exclusion from the operation of the T.R.O. on the grounds
that the movants have no legal interest in the subject matter of the pending
action; that allowing intervention would only cause delay in the proceedings;
and that the motion to exclude the movants from the T.R.O. is without legal
basis and would render moot the relief sought in the petition.
On September 3, 1992, the PVB filed a Petition-In-Intervention praying for the
issuance of the writs of certiorari and prohibition under Rule 65 of the Rules of
Court in connection with the issuance by respondent judge of several orders
involving acts of liquidation of PVB even after the effectivity of R.A. No. 7169.
PVB further alleges that respondent judge clearly acted in excess of or without
jurisdiction when he issued the questioned orders.
We find for the petitioners.

Despite the legislative mandate for rehabilitation and reopening of PVB,


respondent judge continued with the liquidation proceedings of the bank.
Moreover, petitioners learned that respondents were set to order the payment
and release of employee benefits upon motion of another lawyer, while
petitioners claims have been frozen to their prejudice.

Republic Act No. 7169 entitled An Act To Rehabilitate The Philippine Veterans
Bank Created Under Republic Act No. 3518, Providing The Mechanisms
Therefor, And For Other Purposes, which was signed into law by President
Corazon C. Aquino on January 2, 1992 and which was published in the Official

10

Gazette on February 24, 1992, provides in part for the reopening of the
Philippine Veterans Bank together with all its branches within the period of
three (3) years from the date of the reopening of the head office. 7 The law
likewise provides for the creation of a rehabilitation committee in order to
facilitate the implementation of the provisions of the same. 8
Pursuant to said R.A. No. 7169, the Rehabilitation Committee submitted the
proposed Rehabilitation Plan of the PVB to the Monetary Board for its approval.
Meanwhile, PVB filed a Motion to Terminate Liquidation of Philippine Veterans
Bank dated March 13, 1992 with the respondent judge praying that the
liquidation proceedings be immediately terminated in view of the passage of
R.A. No. 7169.
On April 10, 1992, the Monetary Board issued Monetary Board Resolution No.
348 which approved the Rehabilitation Plan submitted by the Rehabilitation
Committee.
Thereafter, the Monetary Board issued a Certificate of Authority allowing PVB to
reopen.

corporate life and activities in an effort to restore and reinstate the corporation
to its former position of successful operation and solvency. 10
It is crystal clear that the concept of liquidation is diametrically opposed or
contrary to the concept of rehabilitation, such that both cannot be undertaken
at the same time. To allow the liquidation proceedings to continue would
seriously hinder the rehabilitation of the subject bank.
Anent the claim of respondents Central Bank and Liquidator of PVB that R.A. No.
7169 became effective only on March 10, 1992 or fifteen (15) days after its
publication in the Official Gazette; and, the contention of intervenors VOP
Security, et. al. that the effectivity of said law is conditioned on the approval of
a rehabilitation plan by the Monetary Board, among others, the Court is of the
view that both contentions are bereft of merit.
While as a rule, laws take effect after fifteen (15) days following the completion
of their publication in the Official Gazette or in a newspaper of general
circulation in the Philippines, the legislature has the authority to provide for
exceptions, as indicated in the clause unless otherwise provided.

On June 3, 1992, the liquidator filed A Motion for the Termination of the
Liquidation Proceedings of the Philippine Veterans Bank with the respondent
judge.

In the case at bar, Section 10 of R.A. No. 7169 provides:

As stated above, the Court, in a Resolution dated June 8, 1992, issued a


temporary restraining order in the instant case restraining respondent judge
from further proceeding with the liquidation of PVB.

Hence, it is clear that the legislature intended to make the law


effective immediately upon its approval. It is undisputed that R.A. No. 7169 was
signed into law by President Corazon C. Aquino on January 2, 1992. Therefore,
said law became effective on said date.

On August 3, 1992, the Philippine Veterans Bank opened its doors to the public
and started regular banking operations.
Clearly, the enactment of Republic Act No. 7169, as well as the subsequent
developments has rendered the liquidation court functus officio. Consequently,
respondent judge has been stripped of the authority to issue orders involving
acts of liquidation.
Liquidation, in corporation law, connotes a winding up or settling with creditors
and debtors.9 It is the winding up of a corporation so that assets are distributed
to those entitled to receive them. It is the process of reducing assets to cash,
discharging liabilities and dividing surplus or loss.

Sec. 10. Effectivity. This Act shall take effect upon its approval.

Assuming for the sake of argument that publication is necessary for the
effectivity of R.A. No. 7169, then it became legally effective on February 24,
1992, the date when the same was published in the Official Gazette, and not on
March 10, 1992, as erroneously claimed by respondents Central Bank and
Liquidator.
WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN
DUE COURSE and GRANTED. Respondent Judge is hereby PERMANENTLY
ENJOINED from further proceeding with Civil Case No. SP- 32311.
SO ORDERED.

On the opposite end of the spectrum is rehabilitation which connotes a


reopening or reorganization. Rehabilitation contemplates a continuance of

11

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 108461 October 21, 1996
PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner,
vs.
HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC,
MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND
FIRESTONE CERAMIC, INC., respondents.
TORRES, JR., J.:p
The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed
this Petition for Review on Certiorari, seeking the reversal of the Decision dated
January 4, 1993 of public respondent Hon. Zosimo Z. Angeles, Presiding Judge
of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-158
entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial
Trading Corporation.
The said decision upheld the Petition for Prohibition and Mandamus of
REMINGTON INDUSTRIAL SALES CORPORATION (Remington, for brevity) and
FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process,
declared as null and void and unconstitutional, PITCs Administrative Order No.
SOCPEC 89-08-01 and its appurtenant regulations. The dispositive portion of
the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
Petitioner and Intervenor and against the Respondent, as follows:
1) Enjoining the further implementation by the respondent of the following
issuances relative to the applications for importation of products from the
Peoples Republic of China, to wit:
a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A,
Amended Petition);
b) Prescribed Export Undertaking Form (Annex B, Id.);

c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer


(Annex C, Id.);
d) Memorandum dated April 16, 1990 relative to amendments of Administrative
Order No. SOCPEC 89-08-01 (Annex D, Id.);
e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the
processing of import applications (Annexes E, E-1., Ind.);
f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and
expired export credits (Annex Z, Supplemental Petition),
the foregoing being all null and void and unconstitutional; and,
2) Commanding respondent to approve forthwith all the pending applications
of, and all those that may hereafter be filed by, the petitioner and the
Intervenor, free from and without the requirements prescribed in the abovementioned issuances.
IT IS SO ORDERED.
The controversy springs from the issuance by the PITC of Administrative Order
No. SOCPEC 89-08-01, 1 under which, applications to the PITC for importation
from the Peoples Republic of China (PROC, for brevity) must be accompanied
by a viable and confirmed Export Program of Philippine Products to PROC
carried out by the improper himself or through a tie-up with a legitimate
importer in an amount equivalent to the value of the importation from PROC
being applied for, or, simply, at one is to one ratio.
Pertinent provisions of the questioned administrative order read:
3. COUNTERPART EXPORTS TO PROC
In addition to existing requirements for the processing of import application for
goods and commodities originating from PROC, it is declared that:
3.1 All applications covered by these rules must be accompanied by a viable
and confirmed EXPORT PROGRAM of Philippine products to PROC in an amount
equivalent to the value of the importation from PROC being applied for. Such
export program must be carried out and completed within six (6) months from
date of approval of the Import Application by PITC. PITC shall reject/deny any
application for importation from PROC without the accompanying export
program mentioned above.

12

3.2 The EXPORT PROGRAM may be carried out by any of the following:
a. By the IMPORTER himself if he has the capabilities and facilities to carry out
the export of Philippine products to PROC in his own name; or
b. Through a tie-up between the IMPORTER and a legitimate exporter (of
Philippine products) who is willing to carry out the export commitments of the
IMPORTER under these rules. The tie-up shall not make the IMPORTER the
exporter of the goods but shall merely ensure that the importation sought to be
approved is matched one-to-one (1:1) in value with a corresponding export of
Philippine products to PROC. 2

4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a
(i) refund of the cash deposited without interest; (ii) cancellation of the Bank
holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that
he has completed the export commitment pertaining to his importation and
provided further that the following documents are submitted to PITC:
a)
Final
Sales
Invoice
b)
Bill
of
lading
or
Airway
bill
c)
Bank
Certificate
of
Inward
Remittance
d) PITC EXPORT APPLICATION FOR NO. M-1005
5. MISCELLANEOUS

3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper


together with his Import Application are as follows:

5.1 All other requirements for importations of goods and commodities from
PROC must be complied with in addition to the above.

a) Firm Contract, Sales Invoice or Letter of Credit.


b) Export Performance Guarantee (See Article 4 hereof).
c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No.
M-1006). This form should be used if IMPORTER has tie-up with an exporter for
the export of Philippine Products to PROC.
4. EXPORT GUARANTEE
To ensure that the export commitments of the IMPORTER are carried out in
accordance with these rules, all IMPORTERS concerned are required to submit
an EXPORT PERFORMANCE GUARANTEE (the Guarantee) at the time of filing
of the Import Application. The amount of the guarantee shall be as follows:
For essential commodities: 15% of the value of the imports applied for.

5.2 PITC shall have the right to disapprove any and all import applications not in
accordance with the rules and regulations herein prescribed.
5.3 Should the IMPORTER or any of his duly authorized representatives make
any false statements or fraudulent misrepresentations in the Import/Export
Application, or falsify, forge or simulate any document required under these
rules and regulations, PITC is authorized to reject all pending and future
import/export applications of said IMPORTER and/or disqualify said IMPORTER
from doing any business with SOCPEC through PITC.
Desiring to make importations from PROC, private respondents Remington and
Firestone, both domestic corporations, organized and existing under Philippine
laws, individually applied for authority to import from PROC with the petitioner.
They were granted such authority after satisfying the requirements for
importers, and after they executed respective undertakings to balance their
importations from PROC with corresponding export of Philippine products to
PROC.

For other commodities: 50% of the value of the imports applied for.
4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit;
(ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic
Letter of Credit (with all bank opening charges for account of Importer) opened
in favor of PITC as beneficiary.
4.2 The guarantee shall be made in favor of PITC and will be automatically
forfeited in favor of PITC, fully or partially, if the required export program is not
completed by the importer within six (6) months from date of approval of the
Import Application.

Private respondent Remington was allowed to import tools, machineries and


other similar goods. Firestone, on the other hand, imported Calcine Vauxite,
which it used for the manufacture of fire bricks, one of its products.
Subsequently, for failing to comply with their undertakings to submit export
credits equivalent to the value of their importations, further import applications
were withheld by petitioner PITC from private respondents, such that the latter
were both barred from importing goods from PROC. 3

13

Consequently, Remington filed a Petition for Prohibition and Mandamus, with


prayer for issuance of Temporary Restraining Order and/or Writ of Preliminary
Injunction on January 20, 1992, against PITC in the RTC Makati Branch 58. 4 The
court issued a Temporary Restraining Order on January 21, 1992, ordering PITC
to cease from exercising any power to process applications of goods from
PROC. 5 Hearing on the application for writ of preliminary injunction ensued.
Private respondent Firstone was allowed to intervene in the petition on July 2,
1992, 6 thus joining Remington in the latters charges against PITC. It
specifically asserts that the questioned Administrative Order is an undue
restriction of trade, and hence, unconstitutional.
Upon trial, it was agreed that the evidence adduced upon the hearing on the
Preliminary Injunction was sufficient to completely adjudicate the case, thus,
the parties deemed it proper that the entire case be submitted for decision
upon the evidence so far presented.
The court rendered its Decision 7 on January 4, 1992. The court ruled that PITCs
authority to process and approve applications for imports from SOCPEC and to
issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has already
been repealed by EO No. 133, issued on February 27, 1987 by President Aquino.
The court observed:
Given such obliteration and/or withdrawal of what used to be PITCs regulatory
authority under the Special provisions embodied in LOI 444 from the
enumeration of power that it could exercise effective February 27, 1987 in
virtue of Section 16 (d), EO No. 133, it may now be successfully argued that the
PITC can no longer exercise such specific regulatory power in question
conformably with the legal precept expresio unius est exclusio alterius.
Moreover, the court continued, none of the Trade protocols of 1989, 1990 or
1991, has empowered the PITC, expressly or impliedly to formulate or
promulgate the assailed Administrative Order. This fact, makes the continued
exercise by PITC of the regulatory powers in question unworthy of judicial
approval. Otherwise, it would be sanctioning an undue exercise of legislative
power vested solely in the Congress of the Philippines by Section, 1, Article VII
of the 1987 Philippine Constitution.
The lower court stated that the subject Administrative Order and other similar
issuances by PITC suffer from serious constitutional infirmity, having been
promulgated in pursuance of an international agreement (the Memorandum of
Agreement between the Philippines and PROC), which has not been concurred

in by at least 2/3 of all the members of the Philippine Senate as required by


Article VII, Section 21, of the 1987 Constitution, and therefore, null and void.
Sec. 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Furthermore, the subject Administrative Order was issued in restraint of trade,
in violation of Sections 1 and 19, Article XII of the 1987 Constitution, which
reads:
Sec. 1. The goals of the national economy are a more equitable distribution of
opportunities, income and wealth; a sustained increase in the amount of goods
and services produced by the nation for the benefit of the people; and, an
expanding productivity as the key to raising the equality of life for all, especially
the underprivileged.
Sec. 19. The State shall regulate or prohibit monopolies when the public
interest so requires. No combination in restraint of trade or unfair competition
shall be allowed.
Lastly, the court declared the Administrative Order to be null and void, since
the same was not published, contrary to Article 2 of the New Civil Code which
provides, that:
Art. 2. Laws shall take effect fifteen (15) days following the completion of their
publication in the Official Gazette, unless the law otherwise provides. . . .
Petitioner now comes to use on a Petition for Review on Certiorari, 8 questioning
the courts decision particularly on the propriety of the lower courts
declarations on the validity of Administrative Order No. 89-08-01. The Court
directed the respondents to file their respective Comments.
Subsequent events transpired, however, which affect to some extent, the
submissions of the parties to the present petition.
Following President Fidel V. Ramos trip to Beijing, Peoples Republic of China
(PROC), from April 25 to 30, 1993, a new trade agreement was entered into
between the Philippines and PROC, encouraging liberalization of trade between
the two countries. In line therewith, on April 20, 1993, the President, through
Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of
Trade and Industry and the PITC to cease implementing Administrative Order
No. SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and
92-03-08. 9

14

In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a
corporate Memorandum 10 instructing that all import applications for the PROC
filed with the PITC as of April 20, 1993 shall no longer be covered by the trade
balancing program outlined in the Administrative Order.
Forthwith, the PITC allowed the private respondents to import anew from the
PROC, without being required to comply anymore with the lifted requirement of
balancing its imports with exports of Philippine products to PROC. 11 In
its Constancia 12 filed with the Court on November 22, 1993, Remington
expressed its desire to have the present action declared moot and academic
considering the new supervening developments. For its part, respondent
Firestone made a Manifestation 13 in lieu of its Memorandum, informing the
court of the aforesaid developments of the new trade program of the
Philippines with China, and prayed for the courts early resolution of the action.
To support its submission that the present action is now moot and academic,
respondent Remington cites Executive Order No. 244, 14 issued by President
Ramos on May 12, 1995. The Executive Order states:
WHEREAS, continued coverage of the Peoples Republic of China by Letter of
Instructions No. 444 is no longer consistent with the countrys national interest,
as coursing Republic of the Philippines-Peoples Republic China Trade through
the Philippine International Trading Corporations as provided for under Letter of
Instructions No. 444 is becoming an unnecessary barrier to trade;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order;
The Committee on Scientific and Technical Cooperation with Socialist Countries
to delete the Peoples Republic of China from the list of countries covered by
Letter of Instructions No. 444.
Done in the City of Manila, this 12th day of May in the year of Our Lord,
Nineteen Hundred and Ninety-Five.
PITC filed its own Manifestation 15 on December 15, 1993, wherein it adopted
the arguments raised in its Petition as its Memorandum. PITC disagrees with
Remington on the latters submission that the case has become moot and
academic as a result of the abrogation of Administrative Order SOCPEC No. 8908-01, since respondent Remington had incurred obligations to the petitioner
consisting of charges for the 0.5% Counter Export Development Service
provided by PITC to Remington, which obligations remain outstanding. 16 The
propriety of such charges must still be resolved, petitioner argues, thereby

maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it
was abrogated by Executive fiat.
There is no question that from April 20, 1993, when trading balancing measures
with PROC were lifted by the President, Administrative Order SOCPEC No. 8908-01 no longer has force and effect, and respondents are thus entitled anew to
apply for authority to import from the PROC, without the trade balancing
requirements previously imposed on proposed importers. Indeed, it appears
that since the lifting of the trade balancing measures, Remington had been
allowed to import anew from PROC.
There remains, however, the matter of the outstanding obligations of the
respondent for the charges relating to the 0.5% Counter Export Development
Service in favor of PITC, for the period when the questioned Administrative
Order remained in effect. Is the obligation still subsisting, or are the
respondents freed from it?
To resolve this issue, we are tasked to consider the constitutionality of
Administrative Order No. SOCPEC 89-08-01, based on the arguments set up by
the parties in their Petition and Comment. In so doing, we must inquire into the
nature of the functions of the PITC, in the light of present realities.
The PITC is a government owned or controlled corporation created under P.D.
No. 252 17 dated August 6, 1973. P.D. No. 1071, 18 issued on May 9, 1977 which
revised the provisions of P.D. 252. The purposes and powers of the said
governmental entity were enumerated under Section 5 and 6 thereof. 19
On August 9, 1976, the late President Ferdinand Marcos issued Letter of
Instruction (LOI) No. 444, 20 directing, inter alia, that trade (export or import of
all commodities), whether direct or indirect, between the Philippines and any of
the Socialist and other Centrally Planned Economy Countries (SOCPEC),
including the Peoples Republic of China (PROC) shall be undertaken or coursed
through the PITC. Under the LOI, PITC was mandated to: 1) participate in all
official trade and economic discussions between the Philippines and SOCPEC; 2)
adopt such measures and issue such rules and regulations as may be necessary
for the effective discharge of its functions under its instructions; and, 3)
undertake the processing and approval of all applications for export to or
import from the SOCPEC.
Pertinent provisions of the Letter of Instruction are herein reproduced:
LETTER OF INSTRUCTION 444

15

xxx xxx xxx


II. CHANNELS OF TRADE
1. The trade, direct or indirect, between the Philippines and any of the Socialist
and other centrally-planned economy countries shall upon issuance hereof, be
undertaken by or coursed through the Philippine International Trading
Corporation. This shall apply to the export and import of all commodities of
products including those specified for export or import by expressly authorized
government agencies.
xxx xxx xxx
4. The Philippine International Trading Corporation shall participate in all official
trade and economic discussions between the Philippines and other centrallyplanned economy countries.
xxx xxx xxx
V. SPECIAL PROVISIONS
The Philippine International Trading Corporation shall adopt such measures and
issue such rules and regulations as may be necessary for the effective
discharge of its functions under these instructions. In this connection, the
processing and approval of applications for export to or import from the
Socialist and other centrally-planned economy countries shall, henceforth, be
performed by the said Corporation. (Emphasis ours)
After the EDSA Revolution, or more specifically on February 27, 1987, then
President Corazon C. Aquino promulgated Executive Order (EO) No.
133 21 reorganizing the Department of Trade and Industry (DTI) empowering the
said department to be the primary coordinative, promotive, facilitative and
regulatory arm of the government for the countrys trade, industry and
investment activities (Sec. 2, EO 133). The PITC was made one of DTIs line
agencies. 22
The Executive Order reads in part:
EXECUTIVE ORDER NO. 133

The following line corporate agencies and government entities defined in


Section 9 (c) of this Executive Order that will perform their specific regulatory
functions, particularly developmental responsibilities and specialized business
activities in a manner consonant with the Department mandate, objectives,
policies, plans and programs:
xxx xxx xxx
d) Philippine International Trading Corporation. This corporation, which shall
be supervised by the Undersecretary for International Trade, shall only engage
in both export and trading on new or non-traditional products and markets not
normally pursued by the private business sector; provide a wide range of
export oriented auxiliary services to the private sector; arrange for or establish
comprehensive system and physical facilities for handling the collection,
processing, and distribution of cargoes and other commodities; monitor or
coordinate risk insurance services for existing institutions; promote and
organize, whenever warranted, production enterprises and industrial
establishments and collaborate or associate in joint venture with any person,
association, company or entity, whether domestic or foreign, in the fields of
production, marketing, procurement, and other relate businesses; and provide
technical advisory, investigatory, consultancy and management services with
respect to any and all of the functions, activities, and operations of the
corporation.
Sometime in April, 1988, following the State visit of President Aquino to the
PROC, the Philippines and PROC entered into a Memorandum of
Understanding 23 (MOU) wherein the two countries agreed to make joint efforts
within the next five years to expand bilateral trade to US $600 US $800
Million by 1992, and to strive for a steady progress towards achieving a balance
between the value of their imports and exports during the period, agreeing for
the purpose that upon the signing of the Memorandum, both sides shall
undertake to establish the necessary steps and procedures to be adopted
within the framework of the annual midyear review meeting under the Trade
Protocol, in order to monitor and ensure the implementation of the MOU.
Conformably with the MOU, the Philippines and PROC entered into a Trade
Protocol for the years 1989, 1990 and 1991, 24 under which was specified the
commodities to be traded between them. The protocols affirmed their
agreement to jointly endeavor between them. The protocols affirmed their
agreement to jointly endeavor to achieve more or less a balance between the
values of their imports and exports in their bilateral trade.

xxx xxx xxx


Sec. 16. Line Corporate Agencies and Government Entities.

16

It is allegedly in line with its powers under LOI 444 and in keeping with the MOU
and Trade Protocols with PROC that PITC issued its now assailed Administrative
Order No. SOCPEC 89-08-01 25 on August 30, 1989 (amended in March, 1992).
Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and
amend the provisions of LOI 444, which was issued by then President Marcos,
both issuances being executive directives. As observed by us in Philippine
Association of Services Exporters, Inc. vs. Torres, 26
there is no need for legislative delegation of power to the President to revoke
the Letter of Instruction by way of an Executive Order. This is notwithstanding
the fact that the subject LOI 1190 was issued by President Marcos, when he was
extraordinarily empowered to exercise legislative powers, whereas EO 450 was
issued by Pres. Aquino when her transitional legislative powers have already
ceased, since it was found that LOI 1190 was a mere administrative directive,
hence, may be repealed, altered, or modified by EO 450.
We do not agree, however, with the trial courts ruling PITCs authority to issue
rules and regulations pursuant to the Special Provision of LOI 444 and P.D. No.
1071, have already been repealed by EO 133.
While PITCs power to engage in commercial import and export activities is
expressly recognized and allowed under Section 16 (d) of EO 133, the same is
not limited only to new or non-traditional products and markets not normally
pursued by the private business sector. There is not indication in the law of the
removal of the powers of the PITC to exercise its regulatory functions in the
area of importations from SOCPEC countries. Though it does not mention the
grant of regulatory power, EO 133, as worded, is silent as to the abolition or
limitation of such powers, previously granted under P.D. 1071, from the PITC.
Likewise, the general repealing clause in EO 133 stating that all laws,
ordinances, rules, and regulations, or other parts thereof, which are
inconsistent with the Executive Order are hereby repealed or modified
accordingly, cannot operate to abolish the grant of regulatory powers to the
PITC. There can be no repeal of the said powers, absent any cogency of
irreconcilable inconsistency or repugnancy between the issuances, relating to
the regulatory power of the PITC.
The President, in promulgating EO 133, had not intended to overhaul the
functions of the PITC. The DTI was established, and was given powers and
duties including those previously held by the PITC as an independent
government entity, under P.D. 1071 and LOI 444. The PITC was thereby
attached to the DTI as an implementing arm of the said department.

EO 133 established the DTI as the primary coordinative, promotive, facilitative


and regulatory arm of government for the countrys trade, industry and
investment activities, which shall act as a catalyst for intensified private sector
activity in order to accelerate and sustain economic growth. 27 In furtherance of
this mandate, the DTI was empowered, among others, to plan, implement, and
coordinate activities of the government related to trade industry and
investments; to formulate and administer policies and guidelines for the
investment priorities plan and the delivery of investment incentives; to
formulate country and product export strategies which will guide the export
promotion and development thrusts of the government. 28 Corollarily, the
Secretary of Trade and Industry is given the power to promulgate rules and
regulations necessary to carry out the departments objectives, policies, plans,
programs and projects.
The PITC, on the other hand, was attached as an integral part to the said
department as one of its line agencies, 29 and given the focal task of
implementing the departments programs. 30 The absence of the regulatory
power formerly enshrined in the Special Provision of LOI 444, from Section 16 of
EO 133, and the limitation of its previously wide range of functions, is noted.
This does not mean, however, that PITC has lost the authority to issue the
questioned Administrative Order. It is our view that PITC still holds such
authority, and may legally exercise it, as an implementing arm, and under the
supervision of, the Department of Trade and Industry.
Furthermore, the lower courts ruling to the effect that the PITCs authority to
process and approve applications for imports from SOCPEC and to issue rules
and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO
133, is misplaced, and did not consider the import behind the issuance of the
later presidential edict.
The President could not have intended to deprive herself of the power to
regulate the flow of trade between the Philippines and PROC under the two
countries Memorandum of Understanding, a power which necessarily flows
from her office as Chief Executive. In issuing Executive Order 133, the President
intended merely to reorganize the Department of Trade and Industry to cope
with the need of a streamlined bureaucracy. 31
Thus, there is not real inconsistency between LOI 444 and EO 133. There is,
admittedly, a rearranging of the administrative functions among the
administrative bodies affective by the edict, but not an abolition of executive
power. Consistency in statutes as in executive issuances, is of prime
importance, and, in the absence of a showing to the contrary, all laws are
presumed to be consistent with each other. Where it is possible to do so, it is
the duty of courts, in the construction of statutes, to harmonize and reconcile

17

them, and to adopt a construction of a statutory provision which harmonizes


and reconciles it with other statutory provisions. 32 The fact that a later
enactment may relate to the same subject matter as that of an earlier statute
is not of itself sufficient to cause an implied repeal of the latter, since the law
may be cumulative or a continuation of the old one. 33
Similarly, the grant of quasi-legislative powers in administrative bodies is not
unconstitutional. Thus, as a result of the growing complexity of the modern
society, it has become necessary to create more and more administrative
bodies to help in the regulation of its ramified activities. Specialized in the
particular field assigned to them, they can deal within the problems thereof
with more expertise and dispatch than can be expected from the legislature or
the courts of justice. This is the reason for the increasing vesture of quasilegislative and quasi-judicial powers in what is now not unreasonably called the
fourth department of the government. 34 Evidently, in the exercise of such
powers, the agency concerned must commonly interpret and apply contracts
and determine the rights of private parties under such contracts. One thrust of
the multiplication of administrative agencies is that the interpretation of
contracts and the determination of private rights thereunder is no longer
uniquely judicial function, exercisable only by our regular courts. (Antipolo
Realty Corporation vs. National Housing Authority, G.R. No. L-50444, August 31,
1987, 153 SCRA 399).
With global trade and business becoming more intricate may even with new
discoveries in technology and electronics notwithstanding, the time has come
to grapple with legislations and even judicial decisions aimed at resolving
issues affecting not only individual rights but also activities of which foreign
governments or entities may have interests. Thus, administrative policies and
regulations must be devised to suit these changing business needs in a faster
rate than to resort to traditional acts of the legislature.
This tendency finds support in a well-stated work on the subject, viz.:
Since legislatures had neither the time nor the knowledge to create detailed
rules, however, it was soon clear that new governmental arrangements would
be needed to handle the job of rule-making. The courts, moreover, many of
them already congested, would have been swamped if they had to adjudicate
all the controversies that the new legislation was bound to create; and the
judges, already obliged to handle a great diversity of cases, would have been
hard pressed to acquire the knowledge they needed to deal intelligently with all
the new types of controversy.
So the need to create a large number of specialized administrative agencies
and to give them broader powers than administrators had traditionally

exercised. These included the power to issue regulations having the force of
law, and the power to hear and decide cases powers that had previously
been reserved to the legislatures and the courts. (Houghteling/Pierce,
Lawmaking by Administrative Agencies, p. 166)
The respondents likewise argue that PITC is not empowered to issue the
Administrative Order because no grant of such power was made under the
Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols
aforesaid, are only the enumeration of the products and goods which signatory
countries have agreed to trade. They do not bestow any regulatory power, for
executive power is vested in the Executive Department, 35 and it is for the latter
to delegate the exercise of such power among its designated agencies.
In sum, the PITC was legally empowered to issue Administrative Orders, as a
valid exercise of a power ancillary to legislation.
This does not imply however, that the subject Administrative Order is a valid
exercise of such quasi-legislative power. The original Administrative Order
issued on August 30, 1989, under which the respondents filed their applications
for importation, was not published in the Official Gazette or in a newspaper of
general circulation. The questioned Administrative Order, legally, until it is
published, is invalid within the context of Article 2 of Civil Code, which reads:
Art. 2. Laws shall take effect fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in
the Philippines), unless it is otherwise provided. . . .
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01
were filed with, and published by the UP Law Center in the National
Administrative Register, does not cure the defect related to the effectivity of
the Administrative Order.
This court, in Tanada vs. Tuvera36 stated, thus:
We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity is fixed by the
legislature.
Covered by this rule are presidential decrees and executive orders promulgated
by the President in the exercise of legislative powers or, at present, directly
conferred by the Constitution. Administrative Rules and Regulations must also

18

be published if their purpose is to enforce or implement existing law pursuant


also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is,
regulating only the personnel of the administrative agency and not the public,
need not be published. Neither is publication required of the so-called letters of
instructions issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their
duties
xxx xxx xxx
We agree that the publication must be in full or it is no publication at all since
its purpose is to inform the public of the contents of the laws.
The Administrative Order under consideration is one of those issuances which
should be published for its effectivity, since its purpose is to enforce and
implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in
relation to LOI 444 and EO 133.

ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to


the effect that judgment is hereby rendered in favor of the private respondents,
subject to the following MODIFICATIONS:
1) Enjoining the petitioner:
a) From further charging the petitioners the Counter Export Development
Service fee of 0.5% of the total value of the unliquidated or unfulfilled
Undertakings of the private respondents;
b) From further implementing the provisions of Administrative Order No.
SOCPEC 89-08-01 and its appurtenant rules; and,
2) Requiring petitioner to approve forthwith all the pending applications of, and
all those that may hereafter be filed by, the petitioner and the Intervenor, free
from and without complying with the requirements prescribed in the abovestated issuances.
SO ORDERED.

Thus, even before the trade balancing measures issued by the petitioner were
lifted by President Fidel V. Ramos, the same were never legally effective, and
private respondents, therefore, cannot be made subject to them, because
Administrative Order 89-08-01 embodying the same was never published, as
mandated by law, for its effectivity. It was only on March 30, 1992 when the
amendments to the said Administrative Order were filed in the UP Law Center,
and published in the National Administrative Register as required by the
Administrative Code of 1987.
Finally, it is the declared Policy of the Government to develop and strengthen
trade relations with the Peoples Republic of China. As declared by the President
in EO 244 issued on May 12, 1995, continued coverage of the Peoples Republic
of China by Letter of Instructions No. 444 is no longer consistent with the
countrys national interest, as coursing RP-PROC trade through the PITC as
provided for under Letter of Instructions No. 444 is becoming an unnecessary
barrier to trade. 37
Conformably with such avowed policy, any remnant of the restrained
atmosphere of trading between the Philippines and PROC should be done away
with, so as to allow economic growth and renewed trade relations with our
neighbors to flourish and may be encouraged.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS
BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ
BERNAL and LUIS BERNAL, SR., respondents.
RESOLUTION

CORTES, J.:
This special civil action for certiorari seeks to declare null and void two (2)
resolutions of the Special First Division of the Court of Appeals in the case of

19

Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286.
The first resolution promulgated on 30 September 1987 denied petitioners'
motion for extension of time to file a motion for reconsideration and directed
entry of judgment since the decision in said case had become final; and the
second Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being
verified as required by Rule 65 section 1 of the Rules of Court. However, even if
the instant petition did not suffer from this defect, this Court, on procedural and
substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building
owned by petitioners collapsed and destroyed the tailoring shop occupied by
the family of private respondents, resulting in injuries to private respondents
and the death of Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its proximity to the
weakened wall but the former failed to do so. On the basis of the foregoing
facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by
the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross
negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a
decision promulgated on August 17, 1987, a copy of which was received by
petitioners on August 25, 1987. On September 9, 1987, the last day of the
fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987. Petitioners filed their
motion for reconsideration on September 24, 1987 but this was denied in the
Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of
discretion when it denied petitioners' motion for extension of time to file a
motion for reconsideration, directed entry of judgment and denied their motion
for reconsideration. It correctly applied the rule laid down in Habaluyas
Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that
the fifteen-day period for appealing or for filing a motion for reconsideration
cannot be extended. In its Resolution denying the motion for reconsideration,
promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and
clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be
strictly enforced that no motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may

be filed only in cases pending with the Supreme Court as the court of last
resort, which may in its sound discretion either grant or deny the extension
requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate
Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule
and went further to restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144
SCRA 161],stressed the prospective application of said rule, and explained the
operation of the grace period, to wit:
In other words, there is a one-month grace period from the
promulgation on May 30, 1986 of the Court's Resolution in the
clarificatory Habaluyas case, or up to June 30, 1986, within
which the rule barring extensions of time to file motions for
new trial or reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which
expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate
Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed
on September 9, 1987, more than a year after the expiration of the grace
period on June 30, 1986. Hence, it is no longer within the coverage of the grace
period. Considering the length of time from the expiration of the grace period to
the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration within the reglementary
period.
Petitioners contend that the rule enunciated in the Habaluyas case should not
be made to apply to the case at bar owing to the non-publication of
the Habaluyas decision in the Official Gazette as of the time the subject
decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the
Official Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of counsel as lawyer in active law practice to
keep abreast of decisions of the Supreme Court particularly where issues have
been clarified, consistently reiterated, and published in the advance reports of

20

Supreme Court decisions (G. R. s) and in such publications as the Supreme


Court Reports Annotated (SCRA) and law journals.

1/2% contributions will be based, up to a maximum of P500 for any one


month.

This Court likewise finds that the Court of Appeals committed no grave abuse of
discretion in affirming the trial court's decision holding petitioner liable under
Article 2190 of the Civil Code, which provides that "the proprietor of a building
or structure is responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs.

Upon receipt of a copy thereof, petitioner Victorias Milling Company, Inc.,


through counsel, wrote the Social Security Commission in effect protesting
against the circular as contradictory to a previous Circular No. 7, dated October
7, 1957 expressly excluding overtime pay and bonus in the computation of the
employers' and employees' respective monthly premium contributions, and
submitting, "In order to assist your System in arriving at a
proper interpretation of the term 'compensation' for the purposes of" such
computation, their observations on Republic Act 1161 and its amendment and
on the general interpretation of the words "compensation", "remuneration" and
"wages". Counsel further questioned the validity of the circular for lack of
authority on the part of the Social Security Commission to promulgate it
without the approval of the President and for lack of publication in the Official
Gazette.

Nor was there error in rejecting petitioners argument that private respondents
had the "last clear chance" to avoid the accident if only they heeded the.
warning to vacate the tailoring shop and , therefore, petitioners prior
negligence should be disregarded, since the doctrine of "last clear chance,"
which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant
petition for lack of merit.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16704

March 17, 1962

VICTORIAS MILLING COMPANY, INC., petitioner-appellant,


vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.
Ross, Selph and Carrascoso for petitioner-appellant.
Office of the Solicitor General and Ernesto T. Duran for respondent-appellee.
BARRERA, J.:
On October 15, 1958, the Social Security Commission issued its Circular No. 22
of the following tenor: .
Effective November 1, 1958, all Employers in computing the premiums
due the System, will take into consideration and include in the
Employee's remuneration all bonuses and overtime pay, as well as the
cash value of other media of remuneration. All these will comprise the
Employee's remuneration or earnings, upon which the 3-1/2% and 2-

Overruling these objections, the Social Security Commission ruled that Circular
No. 22 is not a rule or regulation that needed the approval of the President and
publication in the Official Gazette to be effective, but a mere administrative
interpretation of the statute, a mere statement of general policy or opinion as
to how the law should be construed.
Not satisfied with this ruling, petitioner comes to this Court on appeal.
The single issue involved in this appeal is whether or not Circular No. 22 is a
rule or regulation, as contemplated in Section 4(a) of Republic Act 1161
empowering the Social Security Commission "to adopt, amend and repeal
subject to the approval of the President such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act."
There can be no doubt that there is a distinction between an administrative rule
or regulation and an administrative interpretation of a law whose enforcement
is entrusted to an administrative body. When an administrative agency
promulgates rules and regulations, it "makes" a new law with the force and
effect of a valid law, while when it renders an opinion or gives a statement of
policy, it merely interprets a pre-existing law (Parker, Administrative Law, p.
197; Davis, Administrative Law, p. 194). Rules and regulations when
promulgated in pursuance of the procedure or authority conferred upon the
administrative agency by law, partake of the nature of a statute, and
compliance therewith may be enforced by a penal sanction provided in the law.
This is so because statutes are usually couched in general terms, after
expressing the policy, purposes, objectives, remedies and sanctions intended
by the legislature. The details and the manner of carrying out the law are often

21

times left to the administrative agency entrusted with its enforcement. In this
sense, it has been said that rules and regulations are the product of a
delegated power to create new or additional legal provisions that have the
effect of law. (Davis,op. cit., p. 194.) .
A rule is binding on the courts so long as the procedure fixed for its
promulgation is followed and its scope is within the statutory authority granted
by the legislature, even if the courts are not in agreement with the policy stated
therein or its innate wisdom (Davis, op. cit., 195-197). On the other hand,
administrative interpretation of the law is at best merely advisory, for it is the
courts that finally determine what the law means.

The case of People v. Jolliffe (G.R. No. L-9553, promulgated on May 30, 1959)
cited by appellant, does not support its contention that the circular in question
is a rule or regulation. What was there said was merely that a regulation may
be incorporated in the form of a circular. Such statement simply meant that the
substance and not the form of a regulation is decisive in determining its nature.
It does not lay down a general proposition of law that any circular, regardless of
its substance and even if it is only interpretative, constitutes a rule or
regulation which must be published in the Official Gazette before it could take
effect.

Circular No. 22 in question was issued by the Social Security Commission, in


view of the amendment of the provisions of the Social Security Law defining the
term "compensation" contained in Section 8 (f) of Republic Act No. 1161 which,
before its amendment, reads as follows: .

The case of People v. Que Po Lay (50 O.G. 2850) also cited by appellant is not
applicable to the present case, because the penalty that may be incurred by
employers and employees if they refuse to pay the corresponding premiums on
bonus, overtime pay, etc. which the employer pays to his employees, is not by
reason of non-compliance with Circular No. 22, but for violation of the specific
legal provisions contained in Section 27(c) and (f) of Republic Act No. 1161.

(f) Compensation All remuneration for employment include the cash


value of any remuneration paid in any medium other than cash except
(1) that part of the remuneration in excess of P500 received during the
month; (2) bonuses, allowances or overtime pay; and (3) dismissal and
all other payments which the employer may make, although not legally
required to do so.

We find, therefore, that Circular No. 22 purports merely to advise employersmembers of the System of what, in the light of the amendment of the law, they
should include in determining the monthly compensation of their employees
upon which the social security contributions should be based, and that such
circular did not require presidential approval and publication in the Official
Gazette for its effectivity.

Republic Act No. 1792 changed the definition of "compensation" to:


(f) Compensation All remuneration for employment include the cash
value of any remuneration paid in any medium other than cash except
that part of the remuneration in excess of P500.00 received during the
month.
It will thus be seen that whereas prior to the amendment, bonuses, allowances,
and overtime pay given in addition to the regular or base pay were expressly
excluded, or exempted from the definition of the term "compensation", such
exemption or exclusion was deleted by the amendatory law. It thus became
necessary for the Social Security Commission to interpret the effect of such
deletion or elimination. Circular No. 22 was, therefore, issued to apprise those
concerned of the interpretation or understanding of the Commission, of the law
as amended, which it was its duty to enforce. It did not add any duty or detail
that was not already in the law as amended. It merely stated and circularized
the opinion of the Commission as to how the law should be
construed.1wph1.t

It hardly need be said that the Commission's interpretation of the amendment


embodied in its Circular No. 22, is correct. The express elimination among the
exemptions excluded in the old law, of all bonuses, allowances and overtime
pay in the determination of the "compensation" paid to employees makes it
imperative that such bonuses and overtime pay must now be included in the
employee's remuneration in pursuance of the amendatory law. It is true that in
previous cases, this Court has held that bonus is not demandable because it is
not part of the wage, salary, or compensation of the employee. But the
question in the instant case is not whether bonus is demandable or not as part
of compensation, but whether, after the employer does, in fact, give or pay
bonus to his employees, such bonuses shall be considered compensation under
the Social Security Act after they have been received by the employees. While
it is true that terms or words are to be interpreted in accordance with their wellaccepted meaning in law, nevertheless, when such term or word is specifically
defined in a particular law, such interpretation must be adopted in enforcing
that particular law, for it can not be gainsaid that a particular phrase or term
may have one meaning for one purpose and another meaning for some other
purpose. Such is the case that is now before us. Republic Act 1161 specifically
defined what "compensation" should mean "For the purposes of this Act".
Republic Act 1792 amended such definition by deleting same exemptions
authorized in the original Act. By virtue of this express substantial change in

22

the phraseology of the law, whatever prior executive or judicial construction


may have been given to the phrase in question should give way to the clear
mandate of the new law.

No appeal bond shall be required for an appeal.

IN VIEW OF THE FOREGOING, the Resolution appealed from is hereby affirmed,


with costs against appellant. So ordered.

Sec. 19 (b) In appeals in special proceedings in accordance


with Rule 109 of the Rules of Court and other cases wherein
multiple appeals are allowed, the period of appeal shall be
thirty (30) days, a record of appeal being required.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-65894 September 24, 1987
THE MUNICIPAL GOVERNMENT OF CORON, PALAWAN, duly represented
by MAYOR RICARDO F. LIM,petitioner,
vs.
JOSE CARINO, VICTORIANO DACULLA, BEN GUMASING, LUCENA CRUZ,
HILARIA YALON, PEPITO YAMBAO, RIC GACUTAN, ANDRES DACULLA,
FELICISIMA URSAIS, PASTOR JOSOL, TEDDY ACTANG, CANDIDA
MANALO, LETICIA RAMAL, ASSOCIATE JUSTICES PORFIRIO V. SISON,
ABDULWAHID A. BIDIN, MARCELINO R. VELOSO and DESIDERIO P.
JURADO, respondents.

GUTIERREZ, JR., J.:


The second paragraph of Section 39, Batas Pambansa Bilang 129 provides that:
No record on appeal shall be required to take an appeal. In lieu
thereof, the entire original record shall be transmitted with all
the pages prominently numbered consecutively, together with
an index of the contents thereof.
Likewise, Sections 18 and 19(b) of the Interim Rules of Court promulgated on
January 11, 1983 provide that:
Sec. 18. The filing of a record on appeal shall be dispensed
with, except in the cases referred to in sub-paragraph (b) of
paragraph (1) hereof.

xxx xxx xxx

Whether or not the above provisions are applicable to the case at bar is the
lone issue in this petition which assails the resolution of the respondent
appellate court dated July 29, 1983.
The dispositive part of the questioned resolution reads:
WHEREFORE, notwithstanding the foregoing, in the broader
interest of justice and considering that under the present
Interim Rules a record on appeal is no longer necessary for
taking an appeal, the Court resolved to order the recall of the
records of this case from the Regional Trial Court of Palawan
Branch I, Puerto Princess for further proceedings before this
Court. (Rollo, pp. 12-13)
Following are the pertinent facts of the case as culled from the records.
Sometime in 1976, an action was filed by the petitioner before the Court of First
Instance of Palawan and Puerto Princess City, Branch IV where it was docketed
as Civil Case No. 35. The action sought authority from the court to demolish the
structures built by the private respondents alongside the rock causeway of the
petitioner's wharf. The complaint alleged, among others:
that the defendants' houses were constructed more than 3
years before the filing of instant action (par. 2, Complaint),:
that on August 19, 1974 the herein defendants undertook to
remove their structures on space where they were then at that
time and are presently standing, when it will be needed by the
government (par. 3, Ibid); that the space or area is needed by
the plaintiff for the docking or berthing of pumpboats
(motorized bancas) and fishing boats and for the loading and
unloading of cargoes along the pier on both sides thereof (par.
4, Ibid); and also to ease the congested traffic along it (par. 10,
Ibid); that his Excellency, President Ferdinand E. Marcos had
the Mayor of plaintiff-municipality to demolish and remove all

23

constructions along the pier after giving the defendants one


month notice (par. 5, Ibid) and aside from this directive of the
President, the mayor of the plaintiff-municipality is also
authorized to remove the defendants' illegal constructions
under LOI 19 (par. 7, Ibid); that despite said mayor's desire to
comply immediately with the said presidential directive, the
defendants had already been given 3 extensions thereby
delaying their ejectment therefrom (par. 6, Ibid); that most of
the defendants are affluent squatters (par. 9, Ibid); and that for
the indigent defendants, a surveyed area has already been
made ready for their relocation (par. 12, Ibid). (Decision CFI,
Palawan and Puerto Princess City, Branch IV, p. 2; Reno, p. 15).
On the other hand, the private respondents, in their answer, counter-alleged,
among others:
that their structures when made were covered by building
permits with the approval of the Bureau of Public Highways
(par, 2, Answer); that the area where their structures were
located is a foreshore area (Par. 4, Ibid); that a meeting was
convened and presided by Governor Socrates at Coron, the
same having been attended by the local representatives of the
Philippine Constabulary, the Philippine Coast Guard, the
Department (now Ministry) of Social Services and
Development, the Sangguniang Bayan and the defendants and
it was agreed in this meeting that the demolition of the
defendants' houses will be suspended pending action of the
Office of the President (par. 15, 16, 17, Ibid); and that the
Chairman of the National Housing Authority had sent a letteradvice to the mayor of the plaintiff-municipality to suspend the
demolition of the houses of the defendants (par. 18, Ibid).
(Rollo, pp. 15-16)
After a series of postponements, the trial court, on January 16, 1979, reset the
hearing of the case for the last time for three consecutive dates, March 20, 21,
and 22, 1979 with further warning to the private respondents that no more
postponements shall be allowed.
On March 20, 1979, despite proper notice, the private respondents and their
counsel failed to appear at the scheduled hearing. Consequently, the petitioner
moved that private respondents' non-appearance be considered as a waiver on
their part of their right to cross-examine the petitioner's witnesses and their
right to present evidence. The lower court issued an order granting the
petitioner's motion and considered the case submitted for decision.

In view of the above order, the private respondents went to the appellate court
on certiorari. On June 9, 1979, the appellate court dismissed for lack of merit
CA G.R. SP-09389-R captioned "Jose Carino, et al., petitioners v. Mayor Ricardo
Lim and Hon. Benjamin Vega, Judge CFI, Palawan, Branch IV."
On May 15, 1979, after the main case had been submitted for decision as
aforestated, the private respondents filed a notice to take deposition which the
lower court disregarded for being "irrelevant and for other obvious reasons."
On October 10, 1980, the lower court rendered its decision, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, judgment is hereby rendered in
favor of the plaintiff-municipality of Coron, Palawan and
against all the herein defendants as follows:
1. Dismissing the defendants'counterclaim for lack of merit;
2. Confirming the power of plaintiff-municipality and authority
of its incumbent mayor to demolish the defendants' structures
along the rock causeway or pier of Coron; and
3. Ordering the said defendants to remove their structures in
the area in question within thirty (30) days from receipt of this
decision and for their failure to do so, authorizing the herein
plaintiff represented by its incumbent mayor to demolish the
said structures at the expense of the said defendants.
Costs against all the defendants. (Rollo, pp. 28-29)
On appeal, the private respondents on February 2, 1982 were required "to
submit the forty (40) printed copies of their record on appeal together with the
proof of service of fifteen (15) copies thereof upon the appellee" within fifteen
(15) days from receipt of the notice of the appellate court's Acting Clerk of
Court regarding their appeal. (Rollo, p. 32)
Upon motion by the private respondents, the appellate court granted an
extension of sixty (60) days from April 7, 1982 within which the required printed
copies of the record on appeal may be submitted. However, despite the
extended period given, the private respondents were not able to comply with
the appellate court's requirement.

24

In a resolution dated July 19, 1982, the appellate court required the private
respondents to show cause why their appeal should not be dismissed for failure
to file the printed copies of the record on appeal.

decided. It is further contended that to allow its application would put no end to
those appealed cases which are otherwise considered as closed ones.
We find merit in the petitioner's contentions.

On August 31, 1982, the appellate court resolved to dismiss the private
respondents' appeal docketed as CA G.R. No. 69052-R for failure to file the
required record on appeal.
On December 6, 1982, the Acting Clerk of Court of the appellate court, in an
Entry of Judgment, certified that the above resolution dismissing the private
respondents' appeal had become final and executory on September 27, 1982.
Accordingly, on February 1, 1983, a writ of execution was issued to enforce the
October 10, 1980 decision of the Court of First Instance of Palawan and Puerto
Princesa City, Branch IV.
Before the Provincial Sheriff could proceed with the execution of the judgment,
the private respondents, in a motion dated April 12, 1983 asked the appellate
court that the records of the case be recalled from the court of origin. In their
supplemental motion, the private respondents argued that since under the
present law, printed records on appeal are no longer required, their right to be
heard on appeal must be upheld instead of the rule on technicalities.
In its opposition to the private respondents' motion, the Petitioner pointed out
that although the newly promulgated procedural rules invoked by the private
respondents may be given retroactive effect, their applicability only covers
pending actions and does not extend to those which had already become final
and executory.
As a consequence of the private respondents' motion to recall the records of
the case, a temporary restraining order dated April 29, 1983 was issued by the
appellate court directing the Provincial Sheriff of Palawan to desist from
executing the October 10, 1980 decision.
On July 29, 1983, the appellate court issued the disputed resolution. The
subsequent denial of the petitioner's motion for reconsideration prompted the
filing of this petition.
The petitioner maintains that the Interim Rules of Court promulgated on January
11, 1983 to implement the provisions of Batas Pambansa Bilang 29 cannot
apply to the case at bar for the simple reason that to revive or recall appealed
cases which had been dismissed or which had become final and executory
would cause a great injustice to those in whose favor these cases had been

We have resolved the issue as to the extent of the retroactive application of


section 18 of the Interim Rules of Court in Alday v. Camilon (120 SCRA 521). We
reiterated the rule that:
Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined
at the time of their passage. Procedural laws are retrospective
in that sense and to that extent. (People vs. Sumilang, 77 Phil.
764 [1946]) Emphasis supplied.
The appellate court should have followed this time-honoured rule instead of
issuing its July 29, 1983 resolution seeking to revive a case already long final as
evidenced by the entry of judgment made by its Acting Clerk of Court on
December 6, 1982.
The records of the instant case show that despite the 60-day extension period
given to the private respondents within which they could file their printed
record of appeal as then required, they still failed to do so. It was only after a
writ of execution had been issued on February 1, 1983 that the private
respondents responded to the appellate court's resolution dated July 19, 1982
requiring them to show cause why their appeal should not be dismissed for
failure to file the printed record on appeal. They claimed that the court's
resolution must have been a result of oversight because they actually filed a
record on appeal.
As a general rule, our policy towards an invocation of the right to appeal has
been one of liberality. (Castro vs. Court of Appeals, 123 SCRA 782 citing De Las
Alas vs. Court of Appeals, 83 SCRA 200). This is so because an appeal is an
essential part of our judicial system and every party-litigant should be afforded
the amplest opportunity for the proper and just disposition of his cause freed
from the constraints of technicalities. (See Siguenza vs. Court of Appeals, 137
SCRA 570). However, it is an equally established doctrine that the right to
appeal is merely a statutory privilege and may be exercised only in the manner
and in accordance with the provisions of law. (See United CMC Textile Workers
Union vs. Clave, 137 SCRA 346).
For a proper exercise of their right to appeal, the private respondents should
have complied with Section 5, Rule 46 of the Rules of Court, as amended by our
resolution en banc dated September 17, 1974, which partly provides that:

25

Sec. 5. Duty of Appellant upon Receipt of Notice. It shall be


the duty of the appellant, within fifteen (15) days from the
date of the notice referred to in the preceding section, to pay
to the Clerk of the Court of Appeals the fee for the docketing of
the appeal, and within sixty (60) days from such notice to
submit to the court twelve (12) printed copies of the record on
appeal, or twelve (12) typewritten or mimeographed (on one
side of good quality paper, eleven inches in length by eight
and a half inches in width commonly known as letter size
written double spaced) copies of said record on appeal
together with proof of service of two (2) printed, typewritten or
mimeographed copies thereof upon the appellee.
Thus, upon failure of the appellant to comply with the above rule, the Court of
Appeals may dismiss his appeal. Said provision implicitly grants the Court of
Appeals the power to do so. (See Pfleider vs. Victoriano, 98 SCRA 491). The
private respondents in this case did not submit printed copies of their record on
appeal. When the appellate court issued its July 19, 1982 resolution, it was to
afford the private respondents a chance to explain why they failed to comply
with the applicable rule. After having failed to submit the required printed
copies of their record on appeal, they cannot now rectify a clear noncompliance with the law by invoking the court's liberality insofar as the
application of remedial laws is concerned. The private respondents even faulted
the appellate court as having issued the July 19, 1982 resolution through
oversight. They alleged that they had filed the required record on appeal when
in fact what they referred to was the record on appeal from the lower court to
the appellate court and not the printed record on appeal.
Since the private respondents failed to submit the required printed record on
appeal, the lower court's judgment in favor of the petitioner became final. and
executory as an eventual result of the dismissal of the appeal. Once a judgment
becomes final the prevailing party, the petitioner in the instant case, is entitled
as a matter of right to the execution of the judgment in his favor. For the court,
it becomes its ministerial duty to order the execution of said judgment. (Santos,
Jr. vs. Court of Appeals, et al., G.R. No. 56614, promulgated July 28, 1987 citing
Agricultural and Industrial Marketing, Inc. vs. Court of Appeals, 118 SCRA 49;
Balintawak Construction Supply Corporation vs. Valenzuela, 124 SCRA 331;
Rizal Commercial Banking Corporation vs. Dayrit, 123 SCRA 203; Gonzales vs.
Sayo, 122 SCRA 607).
WHEREFORE, the petition is hereby GRANTED. The resolution of respondent
appellate court dated July 29, 1983 is SET ASIDE. Let the records of this case be
remanded to the court of origin for enforcement of the writ of execution of the
judgment. This decision is immediately executory.

SO ORDERED.
G.R. No. 97973 January 27, 1992
SPOUSES GAUVAIN and BERNARDITA BENZONAN, petitioners,
vs.
COURT OF APPEALS, BENITO SALVANI PE and DEVELOPMENT BANK OF
THE PHILIPPINES, respondents.
G.R. No. 97998 January 27, 1992
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and BENITO SALVANI PE, respondents.
Ruben E. Agpalo for Sps. Gauvain and Bernardita Benzonan.
Vicente R. Acsay for Benito Salvani Pe.
Thomas T. Jacobo for DBP.

GUTIERREZ, JR., J.:


This is a petition to review the August 31, 1990 decision of the Court of Appeals
which sustained the right of respondent Benito Salvani Pe to repurchase a
parcel of land foreclosed by petitioner Development Bank of the Philippines
(DBP) and sold to petitioners Gauvain and Bernardita Benzonan.
Respondent Pe is a businessman in General Santos City who owns extensive
commercial and agricultural properties. He is the proprietor of the firm
"Dadiangas B.P. Trading." One of the properties he acquired through free
patents and miscellaneous sales from the Bureau of Lands is a 26,064 square
meters parcel covered by Free Patent No. 46128 issued on October 29, 1969.
OCT No. P-2404 was issued on November 24, 1969.
On February 24, 1970 or barely three months after he acquired the land, the
respondent mortgaged the lot in question, together with another lot covered by
TCT No. 3614 and some chattels to secure a commercial loan of P978,920.00
from the DBP. The lot was developed into a commercial-industrial complex with

26

ricemill and warehouse facilities, a solar drier, an office and residential building,
roadway, garden, depository, and dumping grounds for various materials.
When the private respondent failed to pay his loan after more than seven years
had passed, DBP foreclosed the mortgage on June 28, 1977. On that date, the
total obligation amounted to P1,114,913.34. DBP was the highest bidder.
Certificates of sale were issued in its favor; P452,995.00 was for the two lots
and P108,450.00 for the chattels. The certificate covering the disputed lot was
registered with the Registry of Deeds on January 24, 1978.
After the foreclosure sale, respondent Pe leased the lot and its improvements
from DBP for P1,500.00 a month. Part of the property was also leased by DBP to
the then National Grains Authority.

2) ordering the defendants to vacate forever the premises of


said property in favor of the plaintiff upon payment of the total
repurchase price;
3) ordering the defendants, jointly and solidarily, to pay the
plaintiff attorney's fees in the amount of P25,000.00;
4) and to set an example to government banking and lending
institutions not to take borrowers for granted by making it hard
for them to repurchase by misleading them, the bank is hereby
ordered to pay the plaintiff by way of exemplary damages in
the amount of P50,000.00;
Ordering further the defendant DBP:

The respondent failed to redeem the property within the one year period. On
September 24, 1979 DBP sold the lot to the petitioner for P1,650,000.00
payable in quarterly amortizations over a five year period. The petitioners
occupied the purchased lot and introduced further improvements worth
P970,000.00.
On July 12, 1983, claiming that he was acting within the legal period given to
him to repurchase, respondent Pe offered in writing to repurchase the lot for
P327,995.00. DBP countered, however, that over the years a total of
P3,056,739.52 had already been incurred in the preservation, maintenance,
and introduction of improvements.
On October 4, 1983, Pe filed a complaint for repurchase under Section 119 of
Commonwealth Act No. 141 with the Regional Trial Court (RTC) of General
Santos City.
On November 27, 1986, the trial court rendered judgment. The dispositive
portion reads:
WHEREFORE, in view of the foregoing, the
Development Bank of the Philippines is ordered:

defendant

1) to reconvey unto the plaintiff the parcel of land in question


(Lot No. P-2404) for the repurchase price of P327,995.00 plus
legal interest from June 18, 1977 to June 19, 1978 only, and
the expenses of extrajudicial foreclosure of mortgage;
expenses for registration and ten percent (10%) attorneys
fees;

5) to reimburse the co-defendants spouses Benzonan the


amount they have paid or advanced the defendant DBP for the
purchase of Lot O.C.T. No. P-2404;
6) ordering the defendants to pay the cost of suit. (Rollo of
G.R. No. 97973, pp. 74-75)
On appeal, the Court of Appeals affirmed the decision with modifications as
follows:
xxx xxx xxx
All the foregoing premises considered, judgment is hereby
rendered AFFIRMING the decision rendered by the court a
quo with the modification that the defendant DBP shall
reimburse to its co-defendant Benzonan spouses all amounts
that the latter have paid for the land, minus interest, and that
the Benzonan spouses shall be allowed to remove the
improvement that they have made on the property under
litigation, without impairing or damaging the same. (Rollo of
G.R. No. 97973, p. 105)
A motion for reconsideration was denied on March 19, 1991.
The petitioners-spouses in G.R. No. 97973 raise the following "legal issues,
reasons, or errors" allegedly committed by the Court of Appeals, to wit:

27

1. The Court of Appeals erred in holding that conversion and


use of the land in question to industrial or commercial
purposes, as a result of which it could no longer be used for
cultivation, and the fact that respondent Pe has vast holdings
whose motive in seeking to repurchase the property is to
continue the business or for speculation or greater profits did
not deprive him of the right to repurchase under Sec. 119 of
CA 141, and, as a result, in ignoring or disregarding Pe's
admissions
and
undisputed
facts
establishing
such
circumstances, contrary to what this Court held in Santana
v.Marias, 94 SCRA 853 [1979], Vargas v. Court of Appeals, 91
SCRA 195 [1979] and Simeon v.Pea, 36 SCRA 610 [1970].
2. Assuming, arguendo, that respondent Pe still had the right
to repurchase the land under Sec. 119 of CA 141, the Court of
Appeals erred in not counting the 5-year period from the date
of foreclosure sale on June 18, 1977 or at the very most from
its registration on January 24, 1978, in accordance with the
prevailing doctrinal law at the time as enunciated in Monge
v. Angeles, 101 Phil. 561 [1957],Oliva v. Lamadrid, 21 SCRA
737 [1967] and Tupas v. Damasco, 132 SCRA 593 [1984],
pursuant to which Pe's right to repurchase already expired.
3. The Court of Appeals erred in applying retroactively the
ruling in Belisario v. Intermediate Appellate Court, 165 SCRA
101 [1988], which held that the 5-year period is counted from
the date after the one-year period to redeem foreclosed
homestead expired, to the foreclosure of the land in question
in 1977, as its retroactive application revived Pe's lost right of
repurchase and defeated petitioners' right of ownership that
already accrued under the then prevailing doctrinal law.
4. Assuming, arguendo, that respondent Pe had the right to
repurchase the land in question and assuming, further, that
the 5-year period is to be counted from the consolidation of
ownership after the expiration of the one-year period to
redeem, the Court of Appeals erred in not holding that the
mere filing of an action for repurchase without tendering or
depositing the repurchase price did not satisfy the
requirements of repurchase, Pe's failure to make the tender or
deposit even up to the present being confirmatory of
speculative motive behind his attempt to repurchase.

5. Assuming, finally, that respondent Pe is entitled to


repurchase the property, the Court of Appeals erred in not
holding that petitioners are possessors in good faith, similar to
a vendee a retro, entitled (a) to reimbursement of necessary
and useful expenses under Article 1616 of the Civil Code as
held in Calagan v. CFI of Davao, 95 SCRA 498 [1980] and
in Lee v. Court of Appeals, 68 SCRA 196 [1975]; and (b) to
refund of all amounts paid by them by reason of the sale of the
property in their favor, including interest payments, in both
instances with right of retention. (Rollo of G.R. No. 97973, pp.
14-16)
In G.R No. 97998, DBP limited its petition to the value of the repurchase price
and the nature of the contract between the parties. It framed the issues as
follows:
1. The Court of Appeals erred in not holding that Section 31 of
Commonwealth Act No. 459 as amended is not applicable in
the instant case to determine the repurchase price contrary to
decisions of the Honorable Supreme Court in the following
cases: DBP v. Jimenez, et al. (36 SCRA 426) andDBP
v. Mirang (66 SCRA 141).
2. The Court of Appeals erred in not holding that the law
between the contracting parties are the terms and conditions
embodied in the contract signed by them. (Rollo of G.R. No.
97998, p. 12)
We find merit in the petitions.
The determination of the main issues raised by the petitioners calls for the
proper application of Section 119 of CA 141 as amended which provides: "Every
conveyance of land acquired under the free patent or homestead provisions,
when proper, shall be subject to repurchase by the applicant, his widow, or
legal heirs, within a period of five years from the date of conveyance."
There is no dispute over the fact that the Government awarded the land to
respondent Pe so that he could earn a living by farming the land. Did
respondent Pe lose his right to repurchase the subject agricultural lot under the
aforequoted law considering its conversion for industrial or commercial
purposes? The evidence relating to the conversion is sufficiently established
and yet was not properly appreciated by the respondent court.

28

Only three months after getting the free patent and the original certificate of
title over the subject lot, it was mortgaged by respondent Pe to get a
commercial loan of nearly P1 million from DBP. Pe spent the proceeds of the
loan to construct permanent improvements on the lot for his rice-mill and other
businesses, i.e., two warehouse buildings; administration-residential building;
perimeter fence; solar and concrete drier; shed; machine shop; dirty kitchen;
and machineries and equipments such as ricemill (TSN, August 13, 1984, pp.
173-174). The entire lot has been converted to serve commercial and industrial
purposes. The testimony of petitioners Gauvain Benzonan on this score has not
been successfully challenged, viz:
Q. Out of this 2.6 hectares land area, how
much of this is devoted to the solar drier
construction?
A. The solar drier is about one thousand
(1,000) square meters . . . ah no, about six
thousand (6,000) square meters.
Q. What about the area occupied by the
warehouse and the ricemill complex?
A. The warehouse and ricemill complex is
occupying about one and a half (1 1/2)
hectares.
Q. What about the area occupied by the
residence as well as the roadways?
A. It covers about another half of a hectare
again, Sir.
Q. Is any part of this two point six hectares
devoted
to
agricultural
production
or
production of agricultural crops?
A. None whatsoever because the other
portion is occupied as a dumping area for our
waste materials. (TSN, PP. 361-362, Sept. 3,
1985).
The conversion of the lot for commercial purposes is understandable
considering that the heart of General Santos City developed in that area.

The respondent does not deny that, he is using the land for purely commercial
and industrial purposes. His explanation is that the land may be converted into
agricultural land in the future. He applies the Krivenko v.Register of Deeds of
Manila (79 Phil. 461 [1947]) ruling that lands not mineral or forest are
agricultural in nature and may be devoted to business purposes without losing
their agricultural classification.
Indeed, the records show that it was never the intention of respondent Pe to
utilize the land, given to him for free by the Government, for agricultural
purposes. He was not the kind of poor farmer for whom homesteads and free
patents were intended by the law.
As stated by the petitioners:
1. Respondent Pe acquired by free patent the land in question
with an area of 2.6064 hectares, which was issued Original
Certificate of Title No. P-2404 on November 24, 1969. Instead
of cultivating it for agricultural purposes, Pe mortgaged the
land, along with another land, on February 24, 1970, or only
three
(3)
months
from
issuance
of
OCT
No.
P-2404, with the DBP for P978,920.00. (par. 4, complaint,
Annex "A"). Pe testified that his purpose was to construct in
the land in question "bodega", an administration-residential
building, a perimeter fence, a concrete drier, and for some
machineries and equipment." (TSN, p. 95, June 22, 1984). He
stated that the improvements and facilities in the land
included "the warehouse, the ricemill and a big warehouse
housing the palay of stocks of the National Grains Authority
and an administration-residential building, a solar drier and a
perimeter fence and some sheds or garage . . . a small piggery
pen of several compartments, a dirty kitchen . . . a machine
shop." (TSN, pp. 173-174, August 13, 1984). Pe used the
property for such purposes and operated the ricemill business
for a period of about nine (9) years until September, 1979
(pars. 7 and 8, complaint, Annex "A"), without paying the DBP
of his mortgage indebtedness, as a result of which DBP
foreclosed the properties. (Annex "F")
2. Respondent Pe testified that the land in question with its
improvements has an appraised value of P1,347,860.00 in
1974, and P2,028,030.00 in 1976. (TSN, pp. 176, 177, August
13, 1984). Petitioner Gauvain Benzonan claimed it has a fair
market value, as of 1985, of P5,000,000.00. (p. 8, trial court
decision, Annex "F"). As against such value of the land and

29

improvements, respondent Pe insisted that the repurchase


price should only be the principal sum of P327,995.00. (par.
10, complaint, Annex "A")

public land which the State has gratuitously given to him"" and
expressly found by it to "find justification from the evidence of
record. . . ."

3. Respondent Pe, when he testified in 1984, said he was 60


years old; he is now therefore over 66 years old. He is a
"businessman and resident of Dadiangas, General Santos City"
(TSN, p. 3, June 20, 1984), doing business under the style,
"Dadiangas B.P. Trading" (TSN, 144, June 22, 1984). In his
sworn declaration dated July 18, 1983, filed with the assessor's
office pursuant to P.D. No. 1612, he listed the following real
properties and their market value, all situated in General
Santos City, to wit (Exh. 11-Benzonan):

Under the circumstances, the Court is constrained to agree


with the Court of Appeals that petitioners' proposed
repurchase of the property does not fall within the purpose,
spirit and meaning of section 119 of the Public Land Act,
authorizing redemption of the homestead from any vendee
thereof.

(a)
(b)
(c)
(d)
(e)
(f)
(g)

We reiterated this ruling in Vargas v. Court of Tax Appeals, 91 SCRA


195, 200, [1979] viz:

447 sq. m. residential P 28,720.00


11.9980 hectares of agri. lot P 23,880.00
2.000 hectares of agri. lot P 40,000.00
2.000 hectares of agri. lot P 40,000.00
6,064 sq. m. of industrial lot P303,200.00
Industrial
building
P434,130.00
Industrial machinery P 96,000.00

As regards the case of Simeon v. Pea, petitioners ought to


know that petitioner therein was not allowed to repurchase
because the lower court found that his purpose was only
speculative and for profit. In the present case, the Court of
Appeals found that herein petitioners' purposes and motives
are also speculative and for profit.

On June 22, 1984, when Pe testified, he said that "I own three
(3) residential lots," (TSN, p. 153, June 22, 1984) and that he
and his wife own in Antique Province "around twenty (20)
hectares planted to coconut and sugarcane" (ibid., p. 145); he
used to have 30 hectares of agricultural lands and 22
subdivision lots, which he sold to Norma Salvani and Carlos
Salvani. (TSN, pp. 166-169, June 22, 1984); Exhs. 1, 1-A, 1-B,
1-C, 3, 6, 6-A-Benzonan). (Rollo of G.R. No. 97973, pp. 17-19)

It might be well to note that the underlying principle of Section


119 of Commonwealth Act No. 141 is to give the homesteader
or patentee every chance to preserve for himself and his
family the land that the State had gratuitously given to him as
a reward for his labor in cleaning and cultivating it. (Simeon v.
Pea, 36 SCRA 617). As found by the Court of Appeals, the
motive of the petitioners in repurchasing the lots in question
being one for speculation and profit, the same therefore does
not fall within the purpose, spirit and meaning of said section.

In the light of the records of these cases, we rule that respondent Pe cannot
repurchase the disputed property without doing violence to everything that CA
No. 141 (as amended) stands for.
We ruled in Simeon v. Pea, 36 SCRA 610, 617 [1970] through Chief Justice
Claudio Teehankee, that:
xxx xxx xxx
These findings of fact of the Court of Appeals that "(E)vidently,
the reconveyance sought by the plaintiff (petitioner) is not in
accordance with the purpose of the law, that is, "to preserve
and keep in the family of the homesteader that portion of

and in Santana et al. v. Marias, 94 SCRA 853, 861-862 [1979] to wit:


In Simeon v. Pea we analyzed the various cases previously
decided, and arrived at the conclusion that the plain intent,
the raison d' etre, of Section 119, C.A. No. 141 ". . . is to give
the homesteader or patentee every chance to preserve for
himself and his family the land that the state had gratuitously
given to him as a reward for his labor in cleaning and
cultivating it." In the same breath, we agreed with the trial
court, in that case, that "it is in this sense that the provision of
law in question becomes unqualified and unconditional. And in
keeping with such reasons behind the passage of the law, its
basic objective is to promote public policy, that is, to provide

30

home and decent living for destitutes, aimed at promoting a


class of independent small landholders which is the bulwark of
peace and order.
As it was in Simeon v. Pea, respondent Marias' intention in
exercising the right of repurchase "is not for the purpose of
preserving the same within the family fold," but "to dispose of
it again for greater profit in violation of the law's policy and
spirit." The foregoing conclusions are supported by the trial
court's findings of fact already cited, culled from evidence
adduced. Thus respondent Marias was 71 years old and a
widower at the time of the sale in 1956; that he was 78 when
he testified on October 24, 1963 (or over 94 years old today if
still alive); that . . . he was not living on the property when he
sold the same but was residing in the poblacion attending to a
hardware store, and that the property was no longer
agricultural at the time of the sale, but was a residential and
commercial lot in the midst of many subdivisions. The profit
motivation behind the effort to repurchase was conclusively
shown when the then plaintiff's counsel, in the case below,
Atty. Loreto Castillo, in his presence, suggested to herein
petitioners' counsel, Atty. Rafael Dinglasan ". . . to just add to
the original price so the case would be settled." Moreover,
Atty. Castillo manifested in court that an amicable settlement
was possible, for which reason he asked for time "within which
to settle the terms thereof'" and that "the plaintiff . . . Mr.
Marias, has manifested to the Court that if the defendants
would be willing to pay the sum of One Peso and Fifty
Centavos (P1.50) per square meter, he would be willing to
accept the offer and dismiss the case."
Our decisions were disregarded by the respondent court which chose to adopt a
Court of Appeals ruling in Lim, et al. v. Cruz, et al., CA-G.R. No. 67422,
November 25, 1983 that the motives of the homesteader in repurchasing the
land are inconsequential" and that it does not matter even "when the obvious
purpose is for selfish gain or personal aggrandizement."
The other major issue is when to count the five-year period for the repurchase
by respondent Pe whether from the date of the foreclosure sale or from the
expiration of the one year period to redeem the foreclosed property.
The respondent court ruled that the period of repurchase should be counted
from the expiration of the one year period to redeem the foreclosed property.
Since the one year period to redeem expired on January 24, 1979 and he filed

Case No. 280 on October 4, 1983 to enforce his right to repurchase the
disputed property, the Court of Appeals held that Pe exercised his right to
repurchase within the five-year period provided by Section 119 of CA 141 as
amended.
The respondent court cited Belisario, et al., v. Intermediate Appellate Court, et
al., 165 SCRA 101, 107 [1988] where we held:
. . . In addition, Section 119 of Commonwealth Act 141
provides that every conveyance of land acquired under the
free patent or homestead patent provisions of the Public Land
Act, when proper, shall be subject to repurchase by the
applicant, his widow or legal heirs within the period of five
years from the date of conveyance. The five-year period of
redemption fixed in Section 119 of the Public Land Law of
homestead sold at extrajudicial foreclosure begins to run from
the day after the expiration of the one-year period of
repurchase allowed in an extrajudicial foreclosure. (Manuel v.
PNB, et al., 101 Phil. 968) Hence, petitioners still had five (5)
years from July 22, 1972 (the expiration of the redemption
period under Act 3135) within which to exercise their right to
repurchase under the Public Land Act.
As noted by the respondent court, the 1988 case of Belisario reversed the
previous rulings of this Court enunciated in Monge, et al., v. Angeles, et al., 101
Phil. 563 [1957] and Tupas v. Damasco, et al., 132 SCRA 593 [1984] to the
effect that the five year period of repurchase should be counted from the date
of conveyance or foreclosure sale. The petitioners, however, urge
that Belisario should only be applied prospectively or after 1988 since it
established a new doctrine.
We sustain the petitioners' position. It is undisputed that the subject lot was
mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest
bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners
on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141
as amended was that enunciated inMonge and Tupas cited above. The
petitioners Benzonan and respondent Pe and the DBP are bound by these
decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system
of the Philippines." But while our decisions form part of the law of the land, they
are also subject to Article 4 of the Civil Code which provides that "laws shall
have no retroactive effect unless the contrary is provided." This is expressed in

31

the familiar legal maxim lex prospicit, non respicit, the law looks forward not
backward. The rationale against retroactivity is easy to perceive. The
retroactive application of a law usually divests rights that have already become
vested or impairs the obligations of contract and hence, is unconstitutional
(Francisco v. Certeza, 3 SCRA 565 [1961]).
The same consideration underlies our rulings giving only prospective effect to
decisions enunciating new doctrines. Thus, we emphasized in People
v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this Court is overruled
and a different view is adopted, the new doctrine should be applied
prospectively and should not apply to parties who had relied on the old doctrine
and acted on the faith thereof."
There may be special cases where weighty considerations of equity and social
justice will warrant a retroactive application of doctrine to temper the
harshness of statutory law as it applies to poor farmers or their widows and
orphans. In the present petitions, however, we find no such equitable
considerations. Not only did the private respondent apply for free agricultural
land when he did not need it and he had no intentions of applying it to the
noble purposes behind the law, he would now repurchase for only P327,995.00,
the property purchased by the petitioners in good faith for P1,650,000.00 in
1979 and which, because of improvements and the appreciating value of land
must be worth more than that amount now.
The buyers in good faith from DBP had a right to rely on our rulings
in Monge and Tupas when they purchased the property from DBP in 1979 or
thirteen (13) years ago. Under the rulings in these two cases, the period to
repurchase the disputed lot given to respondent Pe expired on June 18, 1982.
He failed to exercise his right. His lost right cannot be revived by relying on the
1988 case of Belisario. The right of petitioners over the subject lot had already
become vested as of that time and cannot be impaired by the retroactive
application of the Belisarioruling.
Considering our above findings, we find no need to resolve the other issues
raised by the petitioners in their petitions.
WHEREFORE, the questioned decision of the respondent court is hereby
REVERSED and SET ASIDE. The complaint for repurchase under Section 119 of
Commonwealth Act No. 141 as amended is DISMISSED. No pronouncement as
to costs.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-37914

August 29, 1932

MANUEL RODRIGUEZ, petitioner,


vs.
THE DIRECTOR OF PRISONS, respondent.
The petitioner in his own behalf.
Attorney-General Jaranilla for respondent.
VILLA-REAL, J.:
This is an original petition for habeas corpus filed by prisoner Manuel
Rodriguez, praying that after proper proceedings an order be issued requiring
the respondent Director of Prisons to immediately set him at liberty, on the
ground that he is illegally detained, inasmuch as he has already served the
penalty corresponding to his offense under the provisions of the Revised Penal
Code.
The pertinent facts necessary for a solution of the question raised in the
present petition are as follows:
Upon arraignment for the crime of estafa in the Court of First Instance of
Manila, the petitioner spontaneously pleaded guilty, whereupon the trial court
rendered a judgment of conviction, and there being no circumstance to modify
his criminal liability, imposed upon him the minimum of the medium degree of
the penalty of presidio correccional in its minimum and medium degrees, in
accordance with the provisions of paragraph 3, article 534 of the old Penal
Code, that is, one year, eight months, and twenty- one days of presidio
correccional, to pay an indemnity of P647.70, and to suffer subsidiary
imprisonment in case of insolvency.
The first question to decide here is whether or not the provisions of the Revised
Penal Code with reference to the crime of estafa, of which the petitioner was
convicted, are more favorable to him than those of the old Penal Code.
The penalty of one year, eight months, and twenty-one days imposed upon said
petitioner by the trial court is the minimum of the medium degree of the
penalty of presidio correccional in its minimum and medium degrees, ranging
from six months and one day to four years and two months, as provided in
article 534, paragraph 3, of the old Penal Code as amended by Act No. 3244.
The penalty provided in the Revised Penal Code, article 315, paragraph 3, for
the same offense is arresto mayor in the maximum degree to prision
correccional in the minimum degree, that is from four months and one day to
two years and four months, of which the medium degree is from one year and
one day to one year and eight months, which is more lenient and hence more

32

favorable to the petitioner than the same degree of penalty imposed by article
534, paragraph 3, of the former Penal Code cited above.

account, in order to give retroactive effect to article 22, cited above of the
Revised Penal Code for the benefit of the petitioner herein.

Article 22 of the Revised penal Code provides:

As we have seen, the aforesaid petitioner was sentenced to one year, eight
months, and twenty-one days ofpresidio correccional, to pay an indemnity of
P647.70, and to suffer subsidiary imprisonment in case of insolvency, which is
the minimum of the medium degree (from one year, eight months, and twentyone days to two years, eleven months, and ten days) of the penalty of presidio
correccional in the minimum and medium degrees (from six months and one
day to four years and two months), prescribed by article 534, paragraph 3, of
the old Penal Code, as amended by Act No. 3244. The penalty provided in
article 315, paragraph 3, of the Revised Penal Code for the same crime
is arresto mayor in the maximum degree to prision correccional in the minimum
degree, that is, four months and one day to two years and four months, which
is more lenient than that provided in the old Penal Code. Taking into account
the mitigating circumstance of voluntary confession of guilt, without any
aggravating circumstance to offset it, the penalty provided in the Revised Penal
Code must be imposed in the minimum degree, that is, four months and one
day to one year (article 80, paragraph 2, of the old Penal Code, and article 64 of
the Revised Penal Code), and inasmuch as it is the practice of Courts of First
Instance in the exercise of their discretion (article 81, paragraph 7, as amended
by section 1 of Act No. 2298) to fix the penalty in the minimum period, and the
trial court having fixed the penalty imposed upon the petitioner in the minimum
period of the medium degree, we must also fix it accordingly, that is, four
months and one day of arresto mayor, which is the minimum period of the
minimum degree of the penalty provided by the Revised Penal Code.

ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect in so far as they favor the person guilty of a felony,
who is not a habitual criminal, as this term is defined in rule 5 of article
62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the
same.
As the provisions of the aforementioned Revised Penal Code with reference to
the crime of estafa here in question are more favorable to the said petitioner,
and as the latter is not habitual criminal, the more lenient penalty provided in
the Revised Penal Code must be imposed upon him.
The second question to decide is whether or not in habeas corpus proceedings
the mitigating circumstance of voluntary confession of guilt established for the
first time in article 13, paragraph 7, of the Revised Penal Code, can be taken
into consideration.
The mitigating circumstances, as their name indicates, serve to lessen the
penalty fixed by law, and whenever they are present courts are bound to take
them into consideration, according to article 77, in connection with article 80,
paragraph 3, of the old Penal Code, and article 62, in connection with article 64,
paragraph 2, of the Revised Penal Code.
In the present case, the trial court could not legally take into account the
mitigating circumstance of voluntary confession of guilt, established in article
13, paragraph 7, of the new Penal Code, because it did not exist in the old
Penal Code under which the petitioner herein was prosecuted and sentenced.
Article 22 of the Revised Penal code, above quoted, extends its benefits even to
convicts serving sentence, and the only legal remedy open to them to make
use of such benefits is the writ of habeas corpus, inasmuch as, if the penalty
imposed upon them under the former penal law was decreased by the revised
code, and the latter has retroactive effect, the excess has become illegal. Now
then, it appearing from the sentence that there was a voluntary confession of
guilt, and that it has served as the basis of conviction, and taking into
consideration that had such circumstance been classified by the old Penal Code
as a mitigating circumstance, the trial court would have been bound to give it
effect, could we now disregard it without failing in our duty in order to give
effect to the positive provisions of the law which make all penal laws retroactive
in so far as they favor the accused, who is not an habitual criminal, there being
no necessity to review the proceeding? In the case before us, the voluntary
confession of guilt appears in the sentence and has served as the basis of the
defendant's conviction by the trial court; for which reason we must take it into

The herein petitioner having already served seven months and twenty-nine
days of imprisonment, as against the penalty of four months and twenty-one
days, with all possible allowances, in accordance with the Revised Penal Code,
he has already more than served his sentence and is entitled to be released
immediately.
For the foregoing considerations, we are of opinion and hold that when in a
sentence of conviction it appears that the defendant voluntarily confessed his
guilt in court before the prosecution has presented its evidence, such voluntary
confession shall be taken into account in a petition for habeas corpus to give
effect to article 22 of the Revised Penal Code.
Wherefore, the herein petitioner being illegally detained, the petition is granted
and the respondent Director of Prison is hereby ordered to set him at liberty
immediately, without special pronouncement of costs. So ordered.
Avancea, C.J., Villamor, Abad Santos, Imperial and Butte, JJ., concur.

33

Separate Opinions
MALCOLM, J., dissenting:
We stand squarely on the proposition that, after a court having jurisdiction of a
criminal case has rendered a final judgment in that case and the convict has
begun to serve his sentence in conformity with that judgment, the courts can
not, in habeas corpus proceedings, enter upon a review of the decision or
record to determine if a mitigating circumstance should be taken into account
in order to obtain a reduction of the penalty and the liberation of the convict.
Habeas corpus lies only to determine the question of the jurisdiction and lawful
power of the custodian to hold the petitioner in custody, and is not available as
a revisory remedy for the correction of errors either of law or fact. (29 C. J.,
25; Trono Felipe vs. Director of Prisons [1913], 24 Phil., 121.) The Revised Penal
Code provides that felonies and misdemeanors committed prior to the date of
effectiveness of this Code shall be punished in accordance with the code or acts
in force at the time of their commission, while retroactive effect may only be
given to the Revised Penal Code for the benefit of the person guilty of a felony
who is not a habitual criminal to determine the proper penalty as found under
the old Penal Code and to contrast with it the penalty corresponding to the
crime under the Revised Penal Code. But if the courts are to scrutinize the
decision and the record to ascertain if mitigating circumstances now found for
the first time in the Revised Penal Code are to be given effect, the courts will
embark upon unchartered seas and unutterable confusion will result. We
believe that the court should not now revise a final judgment by inserting in
that judgment a finding relating to a mitigating circumstance, thus permitting
the liberation of the accused. As a consequence, our vote is for the denial of
the writ.

That on or about August 11, 1984, in the municipality of Lambunao, province of


Iloilo, Philippines, and within the jurisdiction of this Court, the above named two
(2) accused, conspiring, confederating and cooperating with three (3) others
whose identities are still unknown and who are still at large, armed with bladed
weapons by means of force, violence and intimidation, taking advantage of the
nighttime to better realize their purpose, and in the dwelling of the offended
party, did then and there wilfully, unlawfully and feloniously take, steal and
carry away, with intent to gain, cash amount of Three Hundred (P300.00) Pesos,
Philippine Currency, owned by the victim Corazon Aliman and the following
personal property: one (1) adjustable wrench, one (1) vise grip, one (1) screw
driver, one (1) pair of levis pants, one (1) travelling bag and one (1) wallet
containing ten (P10.00) pesos, with a total value of Four Hundred (P400.00)
Pesos, Philippine Currency, owned by the victims Reynaldo Aliman and
Josephine Belesario, the over all total of cash and personal property being
SEVEN HUNDRED (P700.00) PESOS, Philippine Currency, without the consent of
the above-mentioned offended parties and to their damage and prejudice in the
aforestated amount; that by reason or on the occasion of said Robbery, the
above named two (2) accused did then and there hack victim Reynaldo Aliman
twice hitting him and inflicting wounds which required medical attendance of
more than thirty (30) days, as well as inflict physical injuries to the other
victims Corazon Aliman and Josephine Belesario causing them to sustain
injuries requiring medical attendance for several number of days.
CONTRARY TO LAW.
(pp. 92-93, II Record.)

EN BANC
[G.R. No. 125539. July 27, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO PATALIN,
JR., ALEX MIJAQUE, AND NESTOR RAS, accused-appellants.

DECISION
MELO, J.:
Accused-appellants Alex Mijaque and Alfonso Patalin, Jr. were charged
before Branch 25 of the Regional Trial Court of the 6th Judicial Region stationed
in Iloilo City, with the crime of robbery. * The Amended Information dated
October 11, 1985 charged:

In a Second Amended Information also dated October 11, 1985 and


docketed as Criminal Case No. 18305, accused-appellants Alex Mijaque, Alfonso
Patalin, Jr., and Nestor Ras were charged before the same court with the crime
of robbery with multiple rape, thusly:
That on or about August 11, 1984, in the municipality of Lambunao, province of
Iloilo, Philippines, and within the jurisdiction of this Court, the above-named
three (3) accused, with deliberate intent, and without any justifiable motive,
conspiring, confederating and working together with Richard Doe, Philip Doe
and Robert Doe who are still at large, all armed with firearms and other deadly
weapons, thereby performing [sic] themselves into a band, entered the
dwelling of Jesusa Carcillar, and once inside, with intent to gain and with
violence against, and/or intimidation of persons, did then and there wilfully,
unlawfully and feloniously take, steal and carry away Five Hundred (P500.00)
Pesos in cash, one (1) ring worth Two Thousand (P2,000.00) Pesos, one (1) pair
of earrings worth One Thousand (P1,000.00) Pesos, and one (1) Seiko wrist
watch worth Three Thousand (P3,000.00) Pesos, making a total of Six Thousand

34

Five Hundred (P6,500.00) Pesos, against the will and/or consent of the owner;
that on the occasion thereof, the above-named three (3) accused, conspiring
and working together with their companions who are still at large, by means of
force and intimidation, did then and there wilfully, unlawfully and feloniously
have sexual intercourse with Perpetua Carcillar, Juliana Carcillar, Rogelia
Carcillar and Josephine Belesario, against their will and consent.

Criminal Case No. 18376


The crime of robbery (with physical injuries) was indeed committed by
accused-appellants Alfonso Patalin, Jr. and Alex Mijaque, as well as by their
unidentified companions, based on the positive identification made by
complaining witness Corazon Aliman, and corroborated by her son Reynaldo
and the latters half sister Josephine Belisario (p. 77, Rollo).

CONTRARY TO LAW.
Criminal Case No. 18305
(pp. 90-91, II Record.)
Upon arraignment on November 12, 1985, accused-appellants entered a
plea of not guilty to both crimes charged (p. 103, II Record).
After trial on the merits, a joint judgment was rendered, disposing:
Wherefore, premises considered there being sufficient and satisfactory proof
showing that the accused in these two cases are guilty beyond reasonable
doubt of the charges filed against them, they are hereby sentenced as follows:
a) In Crim. Case No. 18376 for Robbery with Physical Injuries, accused Alfonso
Patalin, Jr. and Alex Mijaque are penalized to suffer the indeterminate penalty of
imprisonment of Ten (10) years, and One (1) day of Prision Mayor, as minimum,
to Seventeen (17) years and Four (4) months of Reclusion Temporal, as
maximum, to indemnify Corazon Aliman the amount of P700.00 representing
the value of her property robbed from her and also to indemnify Reynaldo
Aliman the amount of P8,000.00 representing the expenses he incurred for his
medication and hospitalization due to the wounds he suffered.
b) In Criminal Case No. 18305 for Robbery with Multiple Rapes, accused Alfonso
Patalin, Jr., Alex Mijaque and Nestor Ras are sentenced to a death penalty and
to indemnify the members of the Carcillar family the amount of P6,500.00
representing the cash and articles taken from them.
In both cases the accused are also ordained to pay the costs.
SO ORDERED.
(p. 80, Rollo.)
The trial court arrived at the aforestated conclusion based on the following
findings:

Accused-appellants Alfonso Patalin, Jr., Alex Mijaque, and Nestor Ras, as


well as an unidentified companion, acted in concert to commit the crime of
robbery with multiple rape. They were positively identified by the following
witnesses: Juliana Carcillar who was raped twice by Alex Mijaque; Josephine
Belisario who was raped once by Alex Mijaque; Rogelia Carcillar who was raped
by Alex Mijaque; and Perpetua Carcillar, who was raped by Nestor Ras, after
Alfonso Patalin, Jr. failed in his attempt to rape her. Accused-appellant Patalin
was likewise identified by Reynaldo Aliman who personally knew him as a
former barangay-mate for along time, as well as by Corazon Aliman, mother of
Reynaldo. The identification of accused-appellants was facilitated and aided by
a bright full moon and due to the fact that they tarried in the crime scene for a
long period of time, thus allowing their victims to imprint in their memory the
countenance or visage of accused-appellants. Said positive and clear
identification by the complaining witnesses, who were not shown to have any ill
motive to falsify the truth and to implicate accused-appellants, prevails over
the latters defense of denial. Band, nocturnity, and dwelling, were likewise
appreciated against accused-appellants (pp. 78-79, Rollo).
The errors assigned by accused-appellants in their individual briefs are
summarized as follows: (1) The trial court erred in finding that accusedappellants are responsible for the crimes charged; (2) The trial court erred in
convicting accused-appellant Patalin notwithstanding the fact that the latter
was arrested without a warrant; (3) Assuming without conceding that accusedappellants (Patalin and Ras) committed the crimes charged, the trial court erred
in imposing the penalty of death as the same was suspended upon the
ratification of the 1987 Constitution (pp. 86, 146, 204, Rollo).
The prosecutions version of the August 11, 1984 incident, based on the
testimony of prosecution witnesses Dr. Edgardo Carmelo, Dra. Leticia Sitchon
Santiago, Reynaldo Aliman, Corazon Aliman, Josephine Belisario, Juliana
Carcillar, Rogelia Carcillar, and Perpetua Carcillar, is summarized in the Solicitor
Generals consolidated Brief, as follows:

35

At about 7:30 in the evening of August 11, 1984, while Reynaldo Aliman, his
half sister Josephine Belisario, and their mother Corazon Aliman were having a
conversation inside their house at Barangay Lumanay, municipality of
Lambunao, province of Iloilo, appellant Alfonso Patalin, Jr., who was outside the
fenced perimeter of said house, called out Reynaldo Aliman by his nickname
and asked the latter to let him and the other persons with him in (pp. 5-6, TSN,
Dec. 16, 1986).
Reynaldo Aliman opened the window and, because of the moonlight, saw
appellant Alfonso Patalin, Jr. with (2) other persons. Appellant Alfonso Patalin, Jr.
asked again Reynaldo Aliman to let them in (pp. 7-8, ibid.). Reynaldo Aliman
opened the gate and Alfonso Patalin together with his companions, one of
whom is appellant Alex Mijaque, entered the premises (pp. 8, 10-11,
ibid.). Immediately upon entering, appellant Alfonso Patalin, Jr. pointed the
beam of his flashlight at Reynaldo Aliman. At this juncture, appellant Alex
Mijaque hacked Reynaldo Aliman twice with a bolo hitting the latter at the neck,
right arm, and the chest (pp. 14-16, ibid.). Thereupon, Reynaldo Aliman
immediately ran away (p. 17, ibid.).
Corazon Aliman and Josephine Belisario, who went to the balcony of their
house, witnessed the hacking incident and the former shouted for help (p. 6,
TSN, July 21, 1987; pp. 8-9, TSN, June 30, 1988). Two of the assailants, one of
whom is appellant Alex Mijaque, pushed Corazon Aliman and Josephine
Belisario inside their house, covered their mouth and told them not to make any
noise. Later, appellant Alex Mijaque dragged Josephine Belisario to the house of
the latters aunt (sister of Corazon Aliman) which is beside their house. The
other man stayed put and while holding a double-bladed knife, threatened to
kill Corazon Aliman if the latter will not give him money. After Corazon Aliman
gave him three hundred pesos (P300.00) cash, he ransacked the house and
took one (1) wrist watch, one (1) vise grip, one (1) screw driver, one (1) pair of
Levis trousers, one (1) travelling bag, and one (1) wallet containing ten pesos
(P10.00); the total value thereof is seven hundred pesos (P700.00) inclusive of
the three hundred pesos (P300.00) cash. Thereafter, the man also dragged
Corazon Aliman to her sisters house (pp. 6-8, TSN, July 21, 1987; pp. 11-12,
TSN, June 30, 1988).
Josephine Belisario, who was dragged by Alex Mijaque to her aunts house which
is just twenty (20) meters away, saw six (6) persons, one of whom is appellant
Alfonso Patalin, Jr., outside the house of her aunt. Josephine Belisario was forced
to call out her aunts name and ask that the door be opened for her. While the
door was being opened, it was kicked by one of the six (6) persons. Alfonso
Patalin immediately went in, boxed the aunt of Josephine Belisario on the body
and announced that they are staging a hold-up. The other companions of
appellant Alfonso Patalin, Jr., including appellant Alex Mijaque, who were armed
with knives, a bolo, and a gun also went in and restrained Josephine Belisarios

cousins, namely Rogelia, Juliana, Perpetua, Roy, and Victoriano, who are all
surnamed Carcillar (pp. 11-15, TSN, June 30, 1988; p. 11, TSN, June 29,
1989). Josephine Belisario together with her aunt and cousins were all forced to
lie face down on the floor of the sala (p. 15, TSN, June 30, 1988; p. 7, TSN, Feb.
15, 1990). Appellant Alfonso Patalin got hold of Mrs. Carcillar (Josephine
Belisarios aunt and the mother of her cousins), kicked and boxed the latter and
exclaimed: Money, money. It is money we want. Appellant Alfonso Patalin forced
Mrs. Carcillar into a room where the latter gave him money (p. 16, TSN, June
30, 1988; pp. 7-8, February 15, 1990). Then, appellants and their companions
seized the following personalities of the Carcillars: (1) one Seiko 5 wristwatch
worth three thousand pesos (P3,000.00), (2) two (2) pairs of ladys rings worth
two thousand (P2,000.00), (3) one (1) pair of earrings, and (4) two (2) travelling
bags (p. 9, TSN, February 15, 1990).
Rogelia Carcillar was brought outside their house by appellant Alex Mijaque who
was armed with a butchers knife and threatened to kill her if she will not lie
down. Because of fear, she did as she was told (pp. 10, 16-17, TSN, February
15, 1990). Appellant Alex Mijaque forcibly removed her underwear and placed
himself on top of Rogelia. She tried to resist but appellant Alex Mijaque pressed
the tip of his knife at the formers neck and succeeded in having sexual
intercourse with her (pp. 11-12, ibid.). Thereafter, appellant Alex Mijaque
brought her inside the house and ordered her to lie face down on the floor
again (pp. 13-14, ibid.). Then, one of the companions of appellant Alex Mijaque
who was armed with a gun took her outside and brought her to a place not far
from where she was raped (p. 14, ibid.). This man, at the point of a gun,
threatened to kill her if she will not obey his orders. Rogelia Carcillar, who
feared for her life, was left with no choice but to obey the mans orders. There,
she was raped for the second time by this gun-wielding man (pp. 15-16,
ibid.). While Rogelia Carcillar was being raped, appellant Alfonso Patalin was
also outside the house standing on guard (p. 18, ibid.).
Juliana Carcillar was likewise brought outside the house by appellant Alex
Mijaque who, with his knife, tried to rape her but he initially failed because of
her resistance. This angered appellant Alex Mijaque and he tried to kill Juliana
Carcillar by stabbing the latter but was prevailed upon not to do so by one of
his companions (pp. 12-15, TSN, June 29, 1989).
Appellant Alex Mijaque, after delivering fist blows on the body of Juliana
Carcillar, turned her over to one of his companions who was in the garden
outside the house and armed with a gun. This man threatened her with the gun
and mauled her. She was overpowered and he undressed her. He inserted his
finger on her sex organ and eventually succeeded in having sexual intercourse
with her (pp. 15-17, ibid.). Then, this companion of appellant Alex Mijaque
brought Juliana Carcillar back inside the house and ordered to look for
money. When she told him that they have no more money, he kept on harming

36

her. In the course thereof, he found and took a Seiko wristwatch owned by
Perpetua Carcillar. Then, he brought her outside the house again where he had
a brief conversation with appellants Nestor Ras and Alfonso Patalin. She was
then brought back inside the house and ordered to lie face down on the floor
again. While at this position, appellant Alex Mijaque approached her and
brought her outside the house.She refused to obey appellant Alex Mijaques
order to lie down on the ground so he pushed her downwards. Her strength
gave out and he succeeded in raping her twice. She was then brought back
inside the house (pp. 18-21, TSN, June 29, 1989).
Josephine Belisario, while laying face down on the floor of the sala, was
dragged by appellant Alex Mijaque inside one of the rooms. He threatened her
with his knife and was able to undress her. He fondled her breasts, pulled her
pubic hair and eventually succeeded in having sexual intercourse with her. She
was then left inside the room. Two companions of appellant Alex Mijaque came
in bringing with them her cousins Rogelia and Perpetua Carcillar. One of them
saw Josephine Belisario and brought her to another room. The man demanded
money from her but she was not able to give him money. The man was also
carrying a knife and threatened her with the same. She resisted when he was
forcing her to lie down on the bed but her strength finally gave out. He likewise
succeeded in having sexual intercourse with her. After raping her, the man took
a piggy bank which was at the foot of the bed and brought her back to the
room where she was first raped. Her aunt and cousins were also inside the said
room (pp. 17-25, TSN, June 30, 1988).
Perpetua Carcillar suffered the same fate. While laying face down on the floor of
the living room, she was pulled by the heir by appellant Alfonso Patalin and
ordered to stand up. When she stood up, she realized that her sister were no
longer there. Appellant Alfonso Patalin, armed with a double-bladed knife,
brought her outside the house, ordered her to undress and lie down. Because of
fear, Perpetua Carcillar, who was then only thirteen (13) years old, obeyed
appellant Alfonso Patalin. He tried to force his penis into her vagina but did not
succeed. Then, appellant Alfonso Patalin handed her over to appellant Nestor
Ras, a member of their group who was only about two (2) arms length
away. Appellant Nestor Ras, armed with a double-bladed knife which he was
pointing at Perpetua Carcillar, ordered her to lie down. He fondled her breasts,
kissed her, and succeeded in having sexual intercourse with her. After raping
her, appellant Nestor Ras brought her back inside the house. When she was
returned inside the house, the intruders were still demanding for money from
her mother and were taking turns in beating the latter (pp. 4, 15-23, TSN, July
12, 1990).
Appellants left, together with the other assailants, taking with them the
valuables stated earlier after threatening them not to report the matter to the

police or else they will return and kill all of them (p. 19, TSN, February 15,
1990).
Reynaldo Aliman was brought to Ricardo Ladrido Memorial Hospital where he
received first aid. He was then brought to West Visayas Medical Center located
in Manduriao, Iloilo (pp. 18-20, TSN, December 16, 1986) and was treated by
Dr. Edgardo Carmelo (p. 4, TSN, May 14, 1986). Reynaldo Aliman sustained the
following injuries: (1) hack wound, mid forearm, area ulnar side middle third
forearm, and (2) hack wound, left side of neck (pp. 5-6, ibid; Exhibit
A). Reynaldo Aliman was confined in the hospital for almost three (3) months
and he spent more than eight thousand pesos (P8,000.00) for medicines, food
and other expenditures (p. 19, TSN, December 16, 1986).
Dr. Leticia Sitchon Santiago examined and treated Josephine Belisario two days
after she was raped. A hematoma, about 3x4 inches in diameter, was found on
the left shoulder of Josephine Belisario which could have been caused by
forcing the latter to lie down on the ground. Josephine Belisario vagina admits
two (2) fingers. Further, hematoma was noted in the hymen at nine oclock and
three oclock positions and fresh lacerations was also noted at nine, eleven, and
three oclock positions. These are indications that a foreign object, which could
be a human penis, was inserted in the vagina and caused the lacerations of the
hymen (pp. 6-9, TSN, September 3, 1986).
Rogelia Carcillar, Juliana Carcillar and Perpetua Carcillar were also examined
and treated by Dr. Leticia Santiago but such was conducted three days after the
incident (p. 17, ibid).
A hematoma was noted in the occipital region of the head of Rogelia Carcillar
(p. 18, ibid). Her vagina admits two fingers snugly and the perineum has a
lacerated wound which is one centimeter in length (pp. 18-19, ibid; pp. 2-3,
TSN, November 10, 1986). Fresh lacerations were likewise noted in her hymen
at eight, eleven and three oclock positions (p. 3, TSN, November 10, 1986). Dr.
Santiago further testified that a foreign object was inserted in the vagina of
Rogelia Carcillar (p. 19, TSN, September 3, 1986; p. 3, TSN, November 10,
1986).
Juliana Carcillar, 22 years old, sustained a hematoma in the forehead, left and
right side of the face, upper right arm, uppermost and lower portions of the left
thigh, occipital region of the head and left side of the mouth. She also sustained
the following injuries: (1) cm. lacerated wound on the left side of the lower lip,
(2) bite mark with hematoma on the left shoulder, (3) 1 cm. incised wounds on
the right index finger and right thumb, (4) 4 inches incised wound on the right
forearm, and (5) multiple abrasions at the back including the portion below the
waistline, her vagina admits two fingers and fresh lacerations in the hymen

37

were noted at eight, eleven, and four oclock positions (pp. 10-15, TSN,
November 10, 1986).

given by Rogelia Carcillar who merely narrated the robbery but did not report
any rape.

Perpetua Carcillar, 13 years old, sustained a 1 centimeter lacerated wound on


the perineum which was also swollen. Her vagina admits two fingers snugly
(pp. 8-9, ibid). A fresh laceration at six oclock position and a hematoma also at
six oclock position were noted on her hymen (Exhibit C, p. 15, Record).

According to this accused-appellant, the police authorities of Iloilo,


Manduriao (also referred to in the record as Mandurriao) received a complaint
from a resident thereat that his television set was stolen previous to the
incidents herein involved. Accused-appellant Mijaque was suspected as the
thief and was picked up by the agents of the Manduriao Police Station without
any warrant of arrest and was thence detained for three days without any
complaint (p. 93, Rollo). Meanwhile, the robbery at Lambunao, Iloilo was being
flashed at all police stations in Iloilo. The arresting officers of the Manduriao
Police Station, so accused-appellant Mijaque contends, in order to save
themselves from charges of arbitrary detention, immediately referred him for
custodial investigation in regard to the Lambunao robbery.Consequently, three
days after his confinement, a criminal complaint for robbery with physical
injuries and another for robbery with rape was filed against him by the Chief of
Police of Lambunao, Iloilo.

(pp. 300-311, Rollo.)


Denial and alibi were set up by accused-appellants based on their
testimony and that of their witnesses, Alejandro Tabucan, Felizardo Lebona,
Rhodora Losaria, and Cristina Gumban. The denials, together with other
arguments, are summarized as follows:
Alfonso Patalin
Accused-appellant Alfonso Patalin alleges that his name was only included
by Jesus Larang, whom he described as the landlord of Jesusa Carcillar and the
Carcillar sisters, to force him to reveal the names of the persons who staged
the robbery and rape. Verily, he declared on the stand that when the victims
saw him at the police station, two of them (Josephine Belisario and Reynaldo
Aliman) even smiled at him (tsn, August 13, 1993, pp. 10-11, 19-20).
In his brief, he argues that he was not positively identified, rationalizing
that when prosecution witness Josephine Belisario was asked on the stand if
she recognized the person who called [her] brother Reynaldo, said witness
responded that she did not know the person who called her brother, and that
she only recognized the callers voice (tsn, August 11, 1988, pp. 30-31). Further,
accused-appellant Patalin also alleges that he was arrested without a warrant.
Alex Mijaque
Accused-appellant Alex Mijaque argues that in the sworn statement of
Reynaldo Aliman (p. 3, II Record), there is no mention of his name nor that of
accused-appellant Patalin as the perpetrators of the crimes charged. Moreover,
during the preliminary examination in the lower court, accused-appellant
Mijaque was also not named as one of the malefactors. He likewise points out
that in the police blotter, the first report mentioned that the alleged offenders
were unknown persons. No rape was reported. In the second report, it was
blottered that the alleged offenders were four unidentified persons. Again, no
rape was reported. Accused-appellant Mijaque likewise takes note of the report

Nestor Ras
The third accused-appellant, Nestor Ras, argues that his name was never
mentioned by Dr. Edgardo Carmelo, and that Josephine Belisario was merely led
by the public prosecutor into mentioning his name. He also states that the
witnesses declarations as regards his identification are confusing and
inconsistent (pp. 208-210, Rollo).
Further, it is contended that Rogelio Carcillar himself, when asked by the
public prosecutor about what happened to his sister Perpetua Carcillar, testified
that Nothing happened to them (p. 210, id). And when Perpetua Carcillar and
the other female prosecution witnesses reported the alleged incident to the
police authorities, they never mentioned that they were raped.
As mentioned, all three accused-appellants, aside from denying the
charges, also presented their respective alibis. Accused-appellant Patalin
testified that he was at home with his parents, wife, and children, at Pandan,
Lambunao (tsn, August 13, 1993, pp. 16-17) at the time of the incident. As
corroborative witness, he presented Felizardo Lebona, the person in charge of
the plantation where he was working, who testified that accused-appellant
Patalin did not leave the plantation house from August 9 to 12, 1984 (tsn,
October 15, 1993, pp. 4-5).
For his part, accused-appellant Mijaque insists that he had no opportunity
to get out of the farm where he was working which was located in Manduriao,
Iloilo (tsn, May 6, 1993, p. 6). In July, 1985, he was arrested for theft of a

38

television set and detained in the Lambunao jail for investigation. Although
three of the herein complainants were brought in front of his detention cell, he
was not identified. Instead, the policemen pointed to him and said, That is Alex
Mijaque who raped you. If you will not include him, he will file a case against
you. Moreover, he testified that he was mauled in jail (tsn, July 29, 1993, pp.
10-13). Defense witness, Alejandro Tabucan, neighbor of accused-appellant
Mijaque, corroborated the latters alibi that on August 11, 1984, they had a
drinking spree from 6 oclock in the evening to 12 oclock midnight, and accusedappellant Mijaque was not able to leave the premises in Manduriao. Tabucan
also said that he saw Mijaque still asleep the following morning (tsn, August 6,
1993, pp. 4-5, 10).
Lastly, accused-appellant Nestor Ras declared that he was in the province
of Antique (particularly, in Igbangkal, Dao) on August 11, 1984 (tsn, December
17, 1993, p. 4). As corroborative witness, he presented Cristina Gumban, a
vendor who testified that on August 11, 1984, she bought cassava and sweet
potatoes from accused-appellant Ras in Igbangkal, Dao, Antique from 3 oclock
to 5 oclock in the afternoon, and that he saw Ras put the purchased items in a
sack (tsn, March 4, 1994, p. 4).
We are not persuaded by the above posturings and are compelled to
affirm.
Of primordial consideration in appellate matters is the legal principle that
the assessment of the credibility of witnesses and their testimony is a matter
best undertaken by the trial court because of its unique opportunity to observe
the witnesses firsthand and to note their demeanor, conduct, and attitude
under grilling examination (People vs. Ombrog, 268 SCRA 93 [1997]). We
generally uphold and respect this appraisal since, as an appellate court, we do
not deal with live witnesses but only with the cold pages of a written record
(People vs. Herbieto, 269 SCRA 472 [1997]).
A close examination of the record convinces us of the prosecution
witnesses credibility, particularly the ravished victims, who, for approximately
two agonizing hours, were subjected to a hellish nightmare occurring in the
very privacy of their own homes.
As pointed out by the Office of the Solicitor General in its consolidated
brief, the defense was not able to prove any motive on the part of the private
complainants to falsely testify that they were robbed and raped by accusedappellants. In fact, two of the rape victims, Josephine Belisario and Rogelia
Carcillar, were even married to first cousins of accused-appellant Patalin (pp.
327-328, Rollo), and would not ordinarily turn against a relative although this
be by mere affinity unless they really suffered the fate they narrated.

Accused-appellants rely on the delay or vacillation on the part of the


complaining witnesses. As discussed above in their individual defenses, they
emphasize that Reynaldo Aliman failed to mention the names of the
perpetrators in his sworn statement; that on August 11, 1984, Reynaldo
instructed a relative, Jesus Larang, to report the hacking and robbery incidents
at the Lambunao Police Department, as well as the robbery committed in the
Carcillar household, and that the police blotter stated that the alleged offenders
were unknown persons but contained no report of any rape; and that Rogelia
Carcillars report did not mention that she was raped.
Time and again, we have ruled that delay in lodging a criminal accusation
does not impair the credibility of a witness if such delay is satisfactorily
explained (People vs. Bugarin, 273 SCRA 384 [1997]).An examination of
Reynaldo Alimans sworn statement (p. 3, I Record) shows that he clearly
identified one of the callers as accused-appellant Alfonso Patalin. Anent his
failure to mention accused-appellant Mijaques name, he explained on crossexamination that he did not know yet the name of the person who attacked him
with the bolo at the time he executed his sworn statement (tsn, Dec. 16, 1986,
pp. 35, 38-39). It was only later that he found out that the name of his assailant
was Alex Mijaque. As regards Jesus Larang, the fact that he mentioned
unknown persons in his report does not affect Reynaldos categorical and
positive identification of accused-appellants Patalin and Mijaque as the
perpetrators of the hacking and robbery incidents at his home.
Anent the rape victims, it was clearly explained that their assailants told
them not to report the matter to the police, otherwise, the assailants will return
and kill them (tsn, Feb. 15, 1990, p. 19). The victims were overcome by fear
and shame (ibid., p. 31). Besides, the delay in reporting the multiple rapes was
not procrastination as this was only 3 days from the date of the incident (tsn,
June 30, 1988, p. 22), a far shorter period than those mentioned in People vs.
Gecomo (254 SCRA 82 [1996]) where we held that a delay of 17 or 35 days, or
even 6 months, by a victim of rape in reporting the attack on her honor, does
not detract from the veracity of her charge.
The defense also notes certain inconsistencies in the testimony of the
complaining witnesses, as follows: (1) Juliana Carcillar testified earlier that the
only light in the house came from a kerosene lamp placed on a small table
which was extinguished as a result of it being knocked down, thus placing the
house in darkness, while on the other hand, Perpetua Carcillar, earlier said that
although there was no more light in the house coming from the lamp, yet she
could still see because the light of the moon still illuminated their house,
allegedly through the plastic roofing; and (2) the prosecution witnesses could
not agree concerning the date they went to San Dionisio, Iloilo to identify
accused-appellant Nestor Ras, as well as the date when Ras was arrested.

39

Inconsistencies in the testimony of witnesses, when referring only to minor


details and collateral matters do not affect either the substance of their
declaration, their veracity, or the weight of their testimony, and do not impair
the credibility of such witnesses where there is consistency in relating the
principal occurrence and the positive identification of the assailant (Sumalpong
vs. Court of Appeals, 268 SCRA 764 [1997]). In fact, honest inconsistencies on
minor and trivial matters serve to strengthen rather than destroy the credibility
of a witness to a crime, especially so when the crime is shocking to the
conscience and numbing to the senses (People vs. Agunias, 279 SCRA 52
[1997]).
With respect to the defenses of denial and alibi, significantly, these
defenses, if unsubstantiated by clear and convincing evidence, are negative
and self-serving, deserve no weight in law, and cannot be given evidentiary
value over the testimony of credible witnesses who testify on affirmative
matters (People vs. Gayon, 269 SCRA 587 [1997]). Positive identification, where
categorical and consistent and without any showing of ill motive on the part of
the eyewitnesses testifying on the matter, prevails over alibi and denial (People
vs. Javier, 269 SCRA 181 [1997]). Verily, even if the defense of denial is
supported by the testimony of friends of the accused, it deserves the barest
consideration (People vs. Gamiao, 240 SCRA 254 [1995]). It will be given weight
only if it would preclude any doubt that the accused could not have been
physically present at the place of the crime or its vicinity at the time of
commission (People vs. Daquipil, 240 SCRA 314 [1995]; People vs. De Roxas,
241 SCRA 369 [1995];People vs. Morin, 241 SCRA 709 [1995]; People vs.
Rivera, 242 SCRA 26 [1995]; People vs. Dela Iglesia, 241 SCRA 718
[1995]; People vs. Umali, 242 SCRA 17 [1995]; People vs. Dayson, 242 SCRA
124 [1995]; People vs. Espinosa, Jr. 243 SCRA 7 [1995]; People vs. Parica, 243
SCRA 557 [1995]; People vs. Escoto, 244 SCRA 87 [1995]).
Accused-appellant Mijaque testified that on August 11, 1984, he was in
Manduriao, Iloilo. The overland travel time from the town of Manduriao to
Lambunao is approximately one hour and twenty minutes. Accused-appellant
Patalin testified that he was in Barangay Pandan, which is merely adjacent to
Lambunao. Lastly, accused-appellant Nestor Ras testified that he was in
Antique, a province neighboring Iloilo, which is approximately two hours away
therefrom via overland transportation. The defense tried to corroborate these
alibis by presenting witnesses who testified on details which happened ten
years prior to the date their testimony was given, and hence of naturally
doubtful credibility.
Mutatis Mutandi People vs. Queliza (279 SCRA 145 [1997]), considering
that the places where accused-appellants alleged they were at could be
traversed by motorized vehicles, it was not impossible that accused-appellants
could not have been at the crime scene by 7 oclock or 7:30 o'clock in the

evening on August 11, 1984. More importantly and damming yet is the positive
identification of their presence thereat by the victims.
The trial court correctly appreciated the aggravating circumstances of
nighttime and dwelling in Criminal Case No. 18376 considering that nighttime
facilitated the commission of the crime and the evidence shows that accusedappellants took advantage of the darkness to successfully consummate their
plans (People vs. Apduhan, Jr., 24 SCRA 798 [1968]). Dwelling is clear from the
abuse of confidence which the victims reposed in the offenders by opening the
door to them, as well as the violation of the sanctity of privacy in the victims
homes. He who goes to anothers house to slander him, hurt him, or do him
wrong, is more guilty than he who offends him elsewhere (Reyes, The Revised
Penal Code Criminal Law, Vol. I, 1993 ed., citing the dissenting opinion of Justice
Villareal in People vs. Ambis, 68 Phil. 635 [1939] and Viada, 5th ed., Vol. II, pp.
323-324). We further affirm the trial courts finding on the presence of the
aggravating circumstance of band considering that Reynaldo Aliman testified
that accused-appellants Patalin and two other companions (one of whom was
later identified as accused-appellant Mijaque) entered his home (tsn, p. 7, Dec.
16, 1986). This was corroborated by Josephine Belisario who even saw four (4)
persons enter their gate, one of whom was accused-appellant Patalin (tsn, p.
10, June 30, 1988). These same aggravating circumstances likewise attended
the commission of the crime of robbery with multiple rape in Criminal Case No.
18305 and this was clearly testified to by the victims thereof who stated that
five persons, including accused-appellant Patalin, armed with a bolo, a knife,
and a long gun, entered their dwelling that unfortunate night (tsn, June 29,
1989, p. 10; February 15, 1990, p. 5).
With respect to accused-appellants Patalin and Mijaques defense that they
were arrested without warrants, suffice it to say that any objection, defect, or
irregularity attending an arrest must be made before the accused enters his
plea (Padilla vs. CA, 269 SCRA 402 [1997]). As correctly pointed out in
the Peoples consolidated brief, the record shows no objection was ever
interposed prior to arraignment and trial (p. 324, Rollo).
It is indubitable that there was conspiracy in the commission of the crimes
in both Criminal Cases No. 18376 and 18305. In the first criminal case, the
evidence clearly shows that accused-appellants Patalin and Mijaque, together
with unidentified companions, committed the crime charged. Said culprits
shared the common criminal objective of robbing the victims and inflicting
wounds upon Reynaldo Aliman on the occasion of the robbery. In the second
case, all three accused-appellants (together with unidentified companions),
who were positively identified by the victims themselves, undoubtedly had the
common criminal design of robbing the household of Jesusa Carcillar, and of
committing multiple rape on the occasion of the robbery. Accused-appellant
Mijaque dragged Josephine Belisario to her aunts house and the other culprits

40

followed suit. Accused-appellant Patalin boxed Jesusa Carcillar and announced


that they were staging a hold-up. After robbing the household, they proceeded
in ravishing the four young female victims, Rogelia, Juliana, Josephine, and
Perpetua, one after the other, thus truly exhibiting their concerted acts.
Conspiracy exists when two or more persons came to an agreement
concerning the commission of a felony and decide to commit it ( People vs.
Abarri, 242 SCRA 39 [1995]). It cannot be merely presumed. Similar to the
physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt.
In the case at bar, although there was no proof of previous actual
agreement among accused-appellants adduced at the trial
...direct proof is not essential to show conspiracy. It need not be shown that the
parties actually came together and agreed in express terms to enter into and
pursue a common design. The existence of the assent of minds which is
involved in a conspiracy maybe, and from the secrecy of the crime, usually
must be, inferred by the court from proof of facts and circumstances which,
taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so
that their acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence
of sentiment, then a conspiracy maybe inferred though no actual meeting
among them to concert means is proved (People vs. Carbonel, 48 Phil. 868; See
also People vs. Viray, 147 SCRA 146; People vs. Balignasay, G.R. No. 76743,
May 22, 1992; People vs. Galit, 230 SCRA 486)...
(People vs. Miranday, 242 SCRA 620 [1995]).
Verily, the participation of each of the accused-appellants was exhibited
by the straightforward testimony of the victims themselves.
This brings us to the crucial issue raised by accused-appellants on the
death penalty. At the time the crimes charged were committed in 1984, robbery
with rape was punishable by death (Art. 294, Revised Penal Code). However, by
virtue of the ratification of the 1987 Constitution, specifically Paragraph (1),
Section 19 of Article III thereof, the death penalty was abolished. Hence, the
argument that it could not be imposed upon accused-appellants. Said provision
reads as follows:
Sec. 19 (1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed, unless,

for compelling reasons involving heinous crimes, the Congress hereafter


provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.
The constitutional abolition of the death penalty immediately took effect
upon the ratification of the 1987 Constitution. However, said provision left the
matter open for Congress to revive capital punishment at its discretion, for
compelling reasons involving heinous crimes. Simply stated, it did not prevent
the legislature from reimposing the death penalty at some future time (Bernas,
The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996
ed., pp. 507-508).
Congress eventually restored the death penalty by virtue of Republic Act
No. 7659 or the Death Penalty Law which took effect on January 1, 1994.
Accused-appellants are of the position that since the Constitutions
abolition of the death penalty had retroactive effect, being beneficial to the
accused, the restoration or imposition of the death penalty on January 1, 1994
would no longer cover them notwithstanding the fact that the decision was
rendered by the trial court on June 14, 1995, when the Death Penalty Law had
already taken effect.
Article 21 of the Revised Penal Code provides that no felony shall be
punishable by any penalty not prescribed by law prior to its commission. At the
time of the commission of the crime in 1984, as held by the trial court, robbery
with rape, if committed with the use of a deadly weapon or by two or more
persons, was punishable by reclusion perpetua to death (Article 294[2], Revised
Penal Code [as amended by Presidential Decree No. 767]).
True, in 1987, the Constitution abolished the death penalty subject to
Congress future restoration thereof for compelling reasons involving heinous
crimes. At the time of such ratification, the instant case was still at its trial
stage. No penalty had as yet then been imposed. Considering that the provision
provides that [a]ny death penalty already imposed shall be reduced
to reclusion perpetua, it is clear that the framers intended said provision to
have a retroactive effect on cases pending without any penalty of death having
been imposed yet. Consequently, upon ratification of the 1987 Constitution,
any death penalty already imposed is automatically without need for any
executive action commuted (Bernas, The 1987 Constitution of the Republic of
the Philippines: A Commentary, 1996 ed., p. 508).
The instant case poses the following issue: When the death penalty was
abolished in 1987 and was retroactively applied to herein accused-appellants,
did they gain a vested right thereto so that any future act restoring the death

41

penalty would no longer cover them? An affirmative answer would free


accused-appellants from the fatal clutches of the death penalty.
Ours is a government of laws and not of men. The idea that an individual
may be compelled to hold his life (or lose it), or the means of living, at the mere
will of another, is intolerable in any country where freedom prevails
(Villavicencio vs. Lukban, 39 Phil 778 [1919]). Before us is a heinous crime
indeed where People were harmed, robbed, ravished, and abused in the
defaced sanctity of their own homes. It is but human nature to feel some
measure of loathing, disgust, and hatred for the offenders considering the
inhuman aspect of the crime committed. However, the ascendancy of the law is
axiomatic in our type of government. Every official act must be based on and
must conform to the authority of a valid law, lacking which the act must be
rejected (Cruz, Phil. Political Law, 1996 ed., p. 51). The nobility of our intention
is insufficient.
There is no doubt that the abolition of the death penalty in 1987
retroactively affected and benefited accused-appellants. Article 22 of the
Revised Penal Code provides that [p]enal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal
. . . although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.
A statute is penal when it imposes punishment for an offense committed
against the state (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 5). The
above-cited provision of the Constitution is penal in character since it deals with
the penalty to be imposed for capital crimes. This penal provision may be given
retroactive effect during three possible stages of a criminal prosecution: (a)
when the crime has been committed and the prosecution began; (b) when
sentence has been passed but the service has not begun; and (c) when the
sentence is being carried out (Gregorio, Fundamentals of Criminal Law Review,
1988 ed., p. 167, citing Escalante vs. Santos, 56 Phil 483 [1932]).
In the light of the discussion above, there is no question that the abolition
of the death penalty benefits herein accused-appellants. Perforce, the
subsequent reimposition of the death penalty will not affect them. The framers
of the Constitution themselves state that the law to be passed by Congress
reimposing the death penalty (Republic Act 7659) can only have prospective
application (Bernas, The 1987 Constitution the Republic of the Philippines: A
Commentary, 1996 ed., p. 508, citing I RECORD, p. 748; Bernas, The Intent of
the 1986 Constitution Writers, 1995 ed., p. 227, citing I Record, p. 747-748).
There is no question that a person has no vested right in any rule of law
which entitles him to insists that it shall remain unchanged for his benefit, nor

has he a vested right in the continued existence of a statute which precludes its
change or repeal, nor in any omission to legislate on a particular
matter. However, a subsequent statute cannot be so applied retroactively as to
impair a right that accrued under the old law (Agpalo, Statutory Construction,
1986 ed., p. 264, citing Benguet Consolidated Mining Co. vs. Pineda, 98 Phil
711 [1956]; Laurel vs. Misa, 76 Phil 372 [1946]). Courts have thus given
statutes strict construction to prevent their retroactive operation in order that
the statutes would not impair or interfere with vested or existing rights. Clearly,
accused-appellants right to be benefited by the abolition of the death penalty
accrued or attached by virtue of Article 22 of the Revised Penal Code. This
benefit cannot be taken away from them.
Since the retroactive application of a law usually divests rights that have
already become vested (Benzonan vs. Court of Appeals, 205 SCRA 515 [1992]),
the rule in statutory construction is that all statutes are to be construed as
having only a prospective operation unless the purpose and intention of the
legislature to give them a retrospective effect is expressly declared or is
necessarily implied from the language used (Balatbat vs. Court of Appeals, 205
SCRA 419 [1992]).
By analogy, we apply the rule in labor law which provides that benefits
accruing to workmen under the old law cannot be taken away from them by a
succeeding law. In the case at bar, there is greater reason to apply this
principle since the very taking of life is involved and is at issue.
As regards accused-appellants civil liability, the trial court, in Criminal
Case No. 18376, correctly awarded P700.00 to Corazon Aliman representing the
total value of the cash and personal property forcibly taken, and P8,000.00 to
Reynaldo Aliman representing expenses incurred for medication and
hospitalization. However, in Criminal Case No. 18305, the trial court failed to
order indemnification for the multiple rapes. Thus, in line with the
pronouncement in People vs. Victor (G.R. No. 127903, July 9, 1998) wherein we
said:
One other point of concern has to be addressed. Indictments for rape continue
unabated and the legislative response has been in the form of higher
penalties. The Court believes that, on like considerations, the jurisprudential
path on the civil aspect should follow the same direction. Hence, starting with
the case at bar, if the crime of rape is committed or effectively qualified by any
of the circumstances under which the death penalty is authorized by the
present amended law, the indemnity for the victim shall be in the increased
amount of not less than P75,000.00. this is not only a reaction to the apathetic
societal perception of the penal law and the financial fluctuations over time, but

42

also an expression of the displeasure of the Court over the incidence of heinous
crimes against chastity.
accused-appellants should be made to pay P375,000.00 as indemnification for
five counts of rape (considering that Juliana Carcillar was twice raped by
accused-appellant Mijaque) in addition to the sum of P6,500.00 representing
the value of the cash and articles that were taken from the victims. In line with
the recent ruling in People vs. Prades (G.R. No. 127569, July 30, 1998), moral
damages in the amount of P50,000.00 for each count of rape, or a total of
P250,000.00 is likewise awarded. Lastly, so that the instant case may serve as
an object lesson to the public, exemplary damages in the amount of P10,000
per count of rape is further awarded (People vs. Burce, 269 SCRA 293 [1997]).
Because of the findings of conspiracy, accused-appellants Patalin and
Mijaque are jointly and severally liable for the amounts awarded in Criminal
Case No. 18376; whereas all three accused-appellants are solidarily liable for
the amounts awarded in Criminal Case No. 18305.
WHEREFORE, finding the conviction of accused-appellants justified by the
evidence on record, the Court hereby AFFIRMS said judgment, with the
following modifications:
(a) In Criminal Case No. 18376, for purposes of the Indeterminate
Sentence Law, considering that the aggravating circumstances of band,
nighttime, and dwelling attended the commission of the crime, accusedappellants Patalin and Mijaque are hereby sentenced to an indeterminate
penalty ranging from six (6) years of prision correccional, as minimum, to
fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal, as
maximum;
(b) Accused-appellants Patalin and Mijaque are jointly and severally held
liable for the amounts awarded by the trial court in said criminal case,
particularly, the amount of P700.00 representing the total value of the cash and
articles taken from Corazon Aliman, and P8,000.00 representing the expenses
incurred by Reynaldo Aliman for medication and hospitalization;
(c) In Criminal Case No. 18305, the penalty imposed is reduced
to reclusion perpetua; and
(d) Aside from the amount of P6,500.00 already awarded by the trial court
to the Carcillar family representing the value of the cash and articles taken, the
victims in Criminal Case No. 18305 are hereby awarded an additional P75,000
as indemnity for each count of rape, P50,000.00 for each count of rape as

moral damages, and P10,000 for each count of rape as exemplary damages, for
which amounts all three accused-appellants are jointly and severally liable.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 79576 August 3, 1988
CELSO M. LARGA, petitioner,
vs.
HON. SANTIAGO RANADA JR., Presiding Judge, Regional Trial Court of
Makati, Branch 137, ASSISTANT FISCAL EDWIN CONDAYA, Prosecuting
Fiscal of Branch 137, and HOME DEVELOPMENT MUTUAL
FUND,respondents.
Ariel M. Los Bahos for petitioner.
Florentino C. de los Santos and Celso Fernandez III for respondents.

FELICIANO, J.:
This is a Petition for Certiorari, Prohibition and mandamus with Preliminary
Injunction seeking to set aside the orders of respondent Judge dated 9 June
1987 and 24 June 1987 denying, respectively, petitioner Larga's Motion to
Quash and his Motion for Reconsideration of the order denying his Motion to
Quash, in Criminal Case No. 29102.
Petitioner Celso M. Larga, one of the owners and operators of the "Bistcor
Diesel Calibration Service," issued in favor of respondent Home Development
Mutual Fund ("HDMF") Security Bank & Trust Company Check No. 225466 in the
amount of P3,840.00 as payment of the employer-employee contributions to
the Pag-Ibig Fund pertaining to the period from January to April 1984. The check
was, however, dishonored for being stale when it was presented for payment by
the drawee bank. Demand was made upon petitioner Larga to replace the
dishonored check or otherwise to pay the amount thereof in full, but he failed
and refused to comply.

43

It turns out that petitioner Larga failed to remit to the Pag-ibig Fund
considerably more employer-employee contributions than just the P3,840.00.
On 23 February 1987, Special Prosecutor Luis B. Pangilinan, Jr. filed an
information against petitioner Larga for violation of Section 23 of Presidential
Decree No. 1752, known as "The Home Development Mutual Fund Law of
1980," committed as follows:
The undersigned Special Prosecutor accuses CELSO LARGA
AND DIOSCORO LARGA of the crime of violation of Section 23
of P.D. 1752 committed as follows:
That on or about the period from January 1984 up to the
present in the Municipality of Makati, Metro Manila, Philippines
and within the junction of this Honorable Court, the above
named a being then the owners and operators of BIMOR
DIESEL CALIBRATION SERVICE conspiring and confederating
together and both of them mutually helping and aiding one
another and with intent to defraud the HDMF, did then and
there willfully, unlawfully and feloniously fail and refuse to
remit to the HDMF the employer employee monthly
contributions amounting to TWENTY SIX THOUSAND EIGHT
HUNDRED EIGHTY (P26,880.00) PESOS, more or less,
computed as of April 1986 despite regular deductions made on
their monthly salaries.
CONTRARY TO LAW.

On 10 April 1987, petitioner filed a Motion to Quash asserting as ground thereof


that the criminal liability for the offense with which he was charged was
extinguished with the issuance of Executive Order No. 90 dated 17 December
1986 by the President of the Philippines, since Section 10 thereof had made
contributions to the Home Development Mutual Fund ("HDMF") voluntary.
Consequently, petitioner argues, the respondent court had lost its jurisdiction to
try and sentence the petitioner for the crime charged in the above-quoted
information.
On 18 May 1987, private respondent HDMF filed an Opposition to the Motion to
Quash, arguing that Section 10 of Executive Order No. 90 had merely amended
the portion of Presidential Decree No. 1752 dealing with the nature of
contributions to the Pag-Ibig Fund by making such contributions voluntary
commencing from January 1987, and that non-remittance of contributions
accruing before January 1987 was still punishable under Section 23 of
Presidential Decree No. 1752.

On 9 June 1987, the Regional Trial Court denied the Motion to Quash.
On 10 June 1987, petitioner filed a Reply to the Opposition to the Motion to
Quash, there arguing that Section 1 0 (b) and (c) of Executive Order No. 90 and
the Implementing Rules operated as an absolute repeal of Section 23 of
Presidential Decree No. 1752. Considering that said repeal was favorable to the
petitioner, he urged that it should be applied retroactively to cover his case.
The Regional Trial Court treated the Reply to the Opposition as a Motion for
Reconsideration of the Court's Order of 9 June 1987, which Motion the Court
denied on 27 July 1987.
In the instant Petition, petitioner urges once more that criminal liability for the
acts with which he was charged has been extinguished and that the Regional
Trial Court has lost its jurisdiction to try and sentence the petitioner.
Most briefly put, Presidential Decree No. 1752 created the HDMF which was
funded by savings which covered government and private sector employees
contributed for that purpose every month and by the counterpart amounts
which employers contributed, based on a graduated percentage of the basic
monthly pay of the employees. These percentage were: 1% in 1981; 2% in
1982; and 3% in 1983 and onwards.
Section 4 of P.D. No. 1752 prescribed mandatory coverage in the following
terms:
Section 4. Fund Coverage. Coverage of the Fund shall
be mandatory upon all employees covered by the Social
Security System and the Government Service Insurance
System, and their respective employers.
Such coverage may be extended to other working groups, with or without
employer contributions, as may be determined by the Board of Trustees.'
(Italics supplied)
Section 23 of the same statute established penal sanctions for violations of the
statute and of its Implementing Rules and Regulations in the following manner:
Section 23. Penal Provisions. Refusal or failure without
lawful cause or with fraudulent intent to comply with the
provisions of this Decree, as well as the implementing rules
and regulations adopted by the Board of Trustees, particularly
with respect to registration of employees, collection

44

andremittance of employee savings as well as employer


counterparts, or the correct amount due, within the time set in
the implementing rules and regulations or specific call or
extension made by the Fund Management, shall constitute an
offense punishable by a fine of not less, but not more than
twice, the amount involved or imprisonment of not more than
six (6) years, or both such fine and imprisonment, in the
discretion of the Court, apart from the civil liabilities andlor
obligations of the offender or delinquent. When the offender is
a corporation, the penalty shall be imposed upon the members
of the governing board and the President or General Manager,
without prejudice to the prosecution of related offenses under
the Revised Penal Code and other laws, revocation and denial
of operating rights and privileges in the Philippines, and
deportation when the offender is a foreigner. (Emphasis
supplied)
Executive Order No. 90, which addresses and seeks to implement the National
Shelter Program of the Government, defines the roles therein of the various
government agencies involved in that Program. Executive Order No. 90
provides, among other things, as follows:
Section 9. Funding Sources. To enable the Social Security
System, the Government Service Insurance System and the
Home Development Mutual Fund to provide benefits to their
members and to generate the necessary long-term funds for
housing, a rationalization of all employer and employee
contributions for all social insurance and provident fund
benefits is hereby directed to include the following:
a. Raising the Social Security System maximum compensation,
inclusive of the Cost of Living Allowance, as basis for
contributions from Pl,000.00 to P3,000.00;
b. Making contributions to the Home Development Mutual
Fund voluntary on the parts of both employees and employers;
c. Instituting a single mandatory contribution rate for
employees and employers for all social insurance programs.
Sec. 10. Home Development Mutual Fund as Voluntary Fund.
In the implementation of the above rationalization program,
the following shall govern the operations of the Home
Development Mutual Fund:

a. All existing contributions together with their accumulated


earnings shall be retained in the Home Development Mutual
Fund until their maturity in accordance with existing rules and
regulations.
b. Membership in the fund for new private and government
employees and their respective employers shall be voluntary
after December 31, 1986.
c. After December 31, 1986, existing members, both
employees and employers, shall have the option to continue
or discontinue new Fund contributions.
d. To encourage provident fund savings for home acquisition,
all government instrumentalities, agencies and corporations
shall match the voluntary contributions made by government
employees in accordance with existing ratios. Private
employers are urged to match the contributions of their
employees who opt to continue their membership in the
Fund. (Emphasis supplied)
It should be made clear, in the first place, that Sections 9 and 10 of Executive
Order No. 90 had the effect of modifying Section 4 of P.D. No. 1752. That
modification consisted in rendering fund coverage voluntary, or nonmandatory, after December 31, 1986. Clearly, Executive Order No. 90, did not
by its terms purport to eliminate the obligatory character of fund coverage or
more precisely, the consequences of obligatory coverage accruing prior to 1
January 1987. It follows that employer-employee contributions to the Fund
which had accrued on or before December 31, 1986 still had to be remitted to
the Fund. Obligations under the statute already accrued as of 1 January 1987
did not lose their positive law obligatory character. More specifically, the
obligation to remit to the Fund previously accrued employer-employee
contributions continued to exist and be exigible. Put a little differently, Sections
9 and 10 of Executive Order No. 90 amended Section 4 of P.D. No.
1752, not retroactively,but only prospectively. It is perhaps well to stress that
there was no constitutional compulsion upon the legislative authority to amend
Section 4 of P.D. No. 1752 retroactively. A court, moreover, cannot give
retroactive effect to Sections 9 and 10 of Executive Order No. 90, even though
favorable to the accused-petitioner, against the express terms of the amending
provisions themselves . 2
It is equally clear that Executive Order No. 90 did not purport to "decriminalize" all prior violations of P.D. No. 1752 and its Implementing Rules and
Regulations, and did not modify or repeal, whether expressly or impliedly,

45

Section 23 of P.D. No. 1752. It is commonplace Teaming that implied repeals are
not favored in law and are not casually to be assumed. The first effort of a court
must always be to reconcile or adjust the provisions of one statute with those of
another so as to give sensible effect to both provisions 3 Only where there is
clear inconsistency and irreconcilable conflict between the provisions of two (2)
statutes, may a court hold that the provisions later in point of time have
impliedly repealed the earlier ones. 4 That is not the case here in respect of
Sections 9 and 10 of E. O. No. 90 and Section 23 of P.D. No. 1752. It goes
without saying that from 1 January 1987 onwards, refusal of an employee or an
employer to become or remain a member of the Pag-Ibig Fund is no longer a
violation of Section 4 of P.D. No. 1752 and by the same token can no longer be
the subject of criminal prosecution under Section 23 of P.D. No. 1752. However,
failure to remit contributions accruing on or before 31 December 1986 in a
timely manner, remains punishable as a violation of P.D. No. 1752 and of the
Implementing Rules and Regulations adopted by the HDMF Board of
Trustees. 5 In the instant case, petitioner was prosecuted for failure to remit to
the HDMF employer-employee contributions which had accrued on or before
April 1986. Indeed, it may be useful to note here that failure on the part of an
employer to remit the voluntary contributions of its employees accruing after 1
January 1987, in accordance with the Implementing Rules and Regulations of
Pag-Ibig Fund, also constitutes a violation punishable under Section 23 of P.D.
No. 1752. 6
WHEREFORE, the Court Resolved to DISMISS the Petition for Certiorari,
Prohibition and mandamus with Preliminary Injunction, for lack of merit. Costs
against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17905

January 27, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
JUAN MORAN, FRUCTUOSO CANSINO, and HILARIO ODA, defendantsappellants.
Pedro Ma. Sison for appellants.
Attorney-General Villa-Real for appellee.

ARAULLO, C. J.:
On March 31, 1922, the decision of this court in the present case, affirming the
judgment of the Court of First Instance of Pangasinan, was published, but the
term of imprisonment by the said court upon the accused, for a violation of the
Election Law, defined and punished in section 2639 of the Administrative Code,
was increased to six months from which judgment the present appeal was
taken by the accused. The accused, after asking for a reconsideration of the
said decision and a rehearing and pending the resolution on the said petition,
filed a special motion on May 2d of this year, alleging that the crime
complained of had prescribed under the provision of section 71 of Act No. 3030,
enacted by the Legislature on March 9, 1922, and praying that they be
absolved from the complaint. Upon this motion the Attorney-General was
heard, having filed an answer and a supplemental answer, with the
corresponding arguments, opposing the same, as well as the accused who filed
their reply thereto and supplementary replies, both parties stating at length the
reasons and legal grounds for their respective contentions.
While it is a rule of general application that unless the defense of prescription is
pleaded in the trial court, it will be deemed to have been waived and cannot
later be raised, yet this rule is not of absolute application in criminal cases, for
if the prescription of the crime, as well as of the penalty whereby criminal
responsibility is extinguished, may, as is the case here with regard to the
former, be provided by statute after the termination of all the proceedings in
the trial court, as well as in the appellate court, and when the case has already
been submitted for discussion and is awaiting only the final judgment; and if
the prescription of the crime is but the extinguishment of the right of the State
to prosecute and punish the culprit, it is beyond question that, once the State
has lost or waived such right, the accused may, at any stage of the proceeding,
ask and move that the same be dismissed and that he be absolved from the
complaint. And not only that, the right to prosecute and punish the criminal
having been lost by the prescription of the crime expressly provided by the
statute, the State itself, the Government through the proper court, is in duty
bound to make a pronouncement to that effect. Therefore, as on March 9th of
this year, 1922, when Act No. 3030 went into effect, providing in its section 71
that offense resulting from the violations thereof shall prescribe one year after
their commission, the accused and the Attorney-General had already filed their
respective briefs in this court for the prosecution of the appeal taken from the
judgment of the court below, and the hearing of the case had already been
held, this court itself, without the necessity of any motion of the accused, or of
the Attorney-General, should have declared the crime in question to have
prescribed, in view of the provision of said section. Consequently, as this court
had not up to that time made such pronouncement, the accused are perfectly
justified in asking, as they have done in their motion of May 2d of this year,
that the offense having prescribed, they be absolved from the complaint. This
duty is imperative upon the courts of justice at any moment that the offense
appears to have prescribed under the provision of the law. With particular
reference to the present case, this conclusion is necessarily reached from the
letter as well as the spirit of the provisions of the Penal Code relative to
prescription, and from that of section 71 of the aforesaid Act No. 3030, for once
the offense or the penalty has prescribed, the State has no right to prosecute

46

the offender, or to punish him, and if he has already been punished, it has no
right to continue holding him subject to its action by the imposition of the
penalty. The plain precept contained in article 22 of the Penal Code, declaring
the retroactivity of penal laws in so far as they are favorable to persons
accused of a felony or misdemeanor, even if they may be serving sentence,
would be useless and nugatory if the courts of justice were not under obligation
to fulfill such duty, irrespective of whether or not the accused has applied for it,
just as would also all provisions relating to the prescription of the crime and the
penalty.
That such is the duty of the courts of justice and has been so recognized by this
court, is shown by the decision in the case of United States vs. Rama, R. G. No.
16247,1 for the crime of murder of four persons, committed in the month of
July, 1902, in the province of Cebu, in which one of the accused was sentenced
by the Court of First Instance of the said province to death and the other two to
life imprisonment. That case was brought to this court on appeal and, after the
filing of the respective briefs of the accused and the Attorney-General a hearing
was had. No allegations was made as to the prescription of the crime, yet this
court rendered a decision (not yet published in the Official Gazette) wherein,
after finding that two crimes of murder and two of homicide had been
committed and that seventeen years had already elapsed from the commission
of the latter to the institution of the judicial proceeding for the investigation and
punishment thereof, that is, more than the fifteen years fixed by lay for the
prescription of the crime of homicide, this court held that the said two crimes of
homicide had prescribed and the criminal responsibility of the three accused for
the said crimes extinguished, convicting the accused only of the two crimes of
murder. There is, therefore, on reason whatsoever why the allegation of
prescription made by the accused in their motion of the 2d of May of this year
cannot legally be considered; on the contrary, said motion must be decided
before the petition for the reconsideration of the decision published on the 31st
of March of last year, and for a rehearing of the case, or, to be more exact, the
said petition must be ignored, for the resolution of the aforesaid motion, if
favorable to the accused, would put an end to the proceeding right at its
present stage.
The first question to be decided, in connection with the contention of the
accused, is whether or not the prescription provided in section 71 of Act No.
3030 refers only to that Act and not to any other, for said section 71 says:
"Offenses resulting from violations of this Act shall prescribe one year after
their commission," and section 72 adds: "This Act shall take effect on its
approval."
It is enough to take into consideration the fact that Act No. 3030, is, as its title
indicates, amendatory to several sections and parts of sections of chapter 18 of
the Administrative Code, known as the Election Law, and of chapter 65 on
penalties for the violation of various administrative laws, among them, those of
the Election Law itself, included in said chapter 18 of the Administrative Code,
in order to understand that when the Legislature used the words "This Act," that
is, Act No. 3030, it referred, necessarily, to the Election Law included in various
sections and provisions of the aforesaid two chapters of the above-mentioned
Code, that is, the Election Law prior to Act No. 3030, under which the herein

accused were convicted. One needs but examine one by one all the sections of
said Act No. 3030, each of which declares the sense in which each of the
sections included in said chapters in amended, in order to convince himself that
said Act No. 3030 is similar to the law that preceded it, with the amendments
and some additions thereto. If the Legislature had passed and enacted a new
Election Law different from that contained in the above-mentioned chapters of
the Administrative Code, then it may be said that the phrase "This Act" can in
no way refer to the prior Election Law. Furthermore, if the offenses resulting
from the violations of the Election Law, the provisions of which are contained in
the aforesaid chapters of the Administrative Code, are the same offenses
provided for in Act No. 3030, though with some modifications in the details as
to some of them and with increase in the penalty, it cannot be denied that
when the Legislature used the words "This Act" in section 71 of Act No. 3030,
wherein it is provided that said offenses shall prescribe one year after their
commission, it necessarily referred to offenses resulting from the violations of
the former Election Law, as amended by said Act No. 3030. Besides, one of the
objects of this Act, as its title indicates, is to make more effective the provisions
and the purposes of the former Law contained in the Administrative Code; so
that Act No. 3030 rather than being an integral part of the former election law
is in conjunction with the latter the only Election Law in force; and any other
interpretation to the contrary of the phrase "This Act" cannot, in our opinion, be
accepted as good logic and in accordance with the principles of sound
reasoning.
It is true that in the next section, 72, it is provided that said Act No. 3030 shall
take effect on the date of its approval, which took place on March 9, 1922, but
the meaning of such an expression in connection with prescription is that
prescription can be invoked from that date, as was done by the accused, and
not that such provision may have a retroactive effect from that same date.
In this connection, there arises the second question as to whether or not the
provision of article 22 of the Penal Code above cited, declaring the retroactivity
of penal laws in so far as they are favorable to the defendant in a criminal
action for a felony or misdemeanor, is applicable to crimes penalized by special
laws, as does Act No. 3030, account being taken of the fact that, under article 7
of the Penal Code, offenses punishable under special laws are not subject to the
provisions of the said code.
Several decisions have been rendered by this court on this question in which
the distinguished members of this court hold opposite views. Among those may
be cited the case of United States vs. Cuna (12 Phil., 241), which is cited in a
later case, United States vs. Lao Lock Hing (14 Phil., 86), in which case this
court did not lay down a definite rule, but expressly reserved its opinion as to
whether or not article 22 of the Penal Code above referred to was applicable.
And it was so recognized by the Supreme Court of the United States, in an
appeal taken by writ of error by the accused, Ong Chang Wing (40 Phil., 1046),
said high court having limited itself to declaring that the accused, not having
been convicted by this court of an offense which was not punishable when
committed, and this court having held only that the right to impose the penalty
prescribed by the Penal Code of the Philippines had not been lost by the
subsequent statute, Act No. 1757, of the Philippine Commission, the accused

47

had not been denied due process of law, for as the Supreme Court of the United
States says in its decision, the duty of that court in that case was to determine
whether or not the judgment of this court amounted to a denial of due process
of law. Therefore, the decision rendered in those two cases cannot be invoked
in the one now before us.
In the case of United States vs. Lao Lock Hing (14 Phil., 86) and United States
vs. Calaguas (14 Phil., 739), cited also in support of the contrary opinion, as the
offenses therein involved were penalized by special laws, that is, by the Opium
Law, in the former, and by the Law of Police and Railroad Preservation, in the
latter, this court held, as it could not have done otherwise, that, under article 7
of the Penal Code, the provisions of the said Code were not applicable to those
offenses, inasmuch as said offenses were penalized by the said law which
prescribed a special and definite penalty for said offenses, but in those cases
said article 7 of the Penal Code was not interpreted in connection with the
application of article 22 of the same Code, providing for the retroactivity of
penal laws favorable to persons accused of a felony or misdemeanor.
Wherefore neither can the holding of this court in those cases have any
application to the one before us.
The case in which this court plainly and definitely decided the question under
consideration is that of United States vs. Parrone (24 Phil., 29). There the said
accused was charged with the crime of falsification of a cedula certificate,
definite and punished in section 55 of Act No. 1189 of the Philippine
Commission, but before the conviction of the accused, said Act was amended
by Act No. 2126 of the Philippine Legislature, which prescribed a lesser penalty
than the previous Act, and this court, after a careful perusal of all its decisions
dealing with that question, as above indicated, and a luminous and exhaustive
discussion on the interpretation of article 7 of the same Code in connection with
the retroactivity of the penalty, in so far as it is favorable to the accused, held,
upon the appeal taken by the said accused from the judgment of the court
below, that, under the provisions of article 22 of the Penal Code, the penalty
provided in Act No. 2126, which was later than Act No. 1189, was the proper
penalty to be imposed upon the accused in that case. In the course of that
decision, the court said:
Considering the provision of article 7 of the Penal Code, are the
provisions of article 22 of the same Code applicable to the penal laws
of the Philippine Islands other than the provisions of the Penal Code?
Article 22 is found in chapter 1 of title 3 of the Penal Code. Said
chapter is entitled "Penalties in General". Article 21 of said title and
chapter provides that "no felony or misdemeanor shall be punishable
by any penalty notprescribed by law prior to its commission." This
article is general in its provisions and in effect prohibits the
Government from punishing any person for any felony or misdemeanor
with any penalty which has not been prescribed by the law. It (art. 21),
therefore, can have no application to any of the provisions of the Penal
Code for the reason that for every felony or misdemeanor defined in
the Penal Code a penalty has been prescribed.

The provisions of article 21 can only be invoked, therefore, when a


person is being tried for a felony or a misdemeanor for which no
penalty has been prescribed by law. Article 21 is not a penal provision.
It neither defines a crime nor provides a punishment for one. It has
simply announced the policy of the Government with reference to the
punishment of alleged criminal acts. It is a guaranty to the citizen of
the State that noact of his will be considered criminal until after the
Government has made it so by law and has provided a penalty. It (art.
21) is a declaration that no person shall be subject to criminal
prosecution for any act of his until after the State has defined the
misdemeanor or crime and has fixed a penalty therefor. The doctrine
announcement by this section has been considered of so much
importance to the citizen of a State that many of the States of the
Union have been pleased to include its precepts in their constitutions
or have so declared by express provision of law.
Article 22 provides that "Penal laws shall have a retroactive effect in so
far as they favor the person guilty of a felony or misdemeanor,
although at the time of the publication of such laws a final sentence
has been pronounced and the convict is serving same." This provision
clearly has no direct application to the provisions of the Penal Code. Its
(art. 22) application to the Penal Code can only be invoked where some
former or subsequent law is under consideration. It must necessary
relate (1) to penal laws existing prior to the Penal Code; or (2) to laws
enacted subsequent to the Penal Code, in which the penalty was more
favorable to the accused. Rule 80, Ley Provisional para la aplicacion de
las disposiciones del Codigo Penal. Under the provisions of said article
22, if a crime had been committed prior to the date of the Penal Code
the punishment for which was more favorable to the accused than the
provisions of the Penal Code, it is believed that the accused might
invoke the provisions of said article (22) even though he was not
placed upon trial until after the Penal Code went into effect. (U.
S. vs. Cuna 2). So also if by an amendment to the Penal Code or by a
later special law the punishment for an act was made less severe than
by the provisions of the Penal Code, then the accused person might
invoke the provisions of said article. It appears to be clear, then, that
article 22 of the Penal Code can only be invoked when the provisions of
some other penal law than the provisions of the Penal Code are under
consideration. In other words, the provisions of article 22 can only be
invoked with reference to some other penal law. It has no application to
the provisions of the Penal Code except in relation with some other law.
It is not believed, therefore, that the Legislature in enacting article 7 of
the Penal Code intended to provide that article 22 should not be
applicable to special laws.
There can be no doubt whatsoever that such was the intention of the
legislature, in view of the doctrine laid down by the supreme court of Spain,
whose authority as regards the application and interpretation of the provisions
of the Penal Code of the Philippines is unquestionable, because said Code is the
same as that of Spain. In two cases (decisions of July 13, 1889 and April 26,
1892), among others decided by that court, in which article 22 of the Penal

48

Code was alleged to have been violated by the imposition of the penalty of
prison correccional prescribed by the said Code, instead of prison menor,
prescribed by article 168 of the Election Law of August 30, 1870, upon the
accused therein, who were found guilty of a violation of the said Election Law,
which, was therefore, a special law in force prior to the said Penal Code of that
same year, the said Code having substitute the penalty of prision
correccional for that of prision menor, said court held that the appeal was not
well taken on the ground that the penalty of prision correccional had taken the
place of that of prision menor prescribed by the Election Law, and while the
duration of both penalties was the same, the correctional penalty was lighter
and more advantageous and favorable to the accused than prision menor, as it
was of a less grave nature; so that in those two cases, the supreme court of
Spain not only applied the provisions of the Penal Code to a special law, but
also gave retroactive effect to said provisions on account of being more
favorable to the therein accused, in accordance with the precept of article 22 of
the Penal Code. And here we have a most complete, clear and satisfactory
solution of whatever doubt might have arisen as to the interpretation of articles
7 and 22 of the Penal Code aforesaid.
It cannot be maintained that said article 22 of the Penal Code refers only to
penalties and is not applicable to appeals and proceedings, because the
prescription of the crime is intimately connected with that of the penalty, for
the length of time fixed by the law for the prescription depends upon the
gravity of the offense, as may be seen from Title VI of Book I of the Penal Code,
containing, as its heading indicates, "General Provisions Regarding Felonies and
Misdemeanors, the Persons Liable and the Penalties," without distinguishing
between the penalties and the extinguishing of the criminal responsibility dealt
with in said Title VI of said Book, which title comes next to Title V, treating of
the penalties incurred by those who evade service of sentence and those who,
while serving sentence, or after having been convicted by a final judgment not
yet served, commit some other crime. And aside from this intimate connection
between the prescription of the crime and that of the penalty, a statute
declaring the prescription of the crime has no other object and purpose than to
prevent or annul the prosecution of the offender and, in the last analysis, the
imposition of the penalty. Moreover, if the provisions relative to the prescription
of ownership and to the prescription of actions in civil matters are part of the
civil law, it cannot be denied that the provisions relative to the prescription of
crimes and of penalties are penal laws or form part thereof.
With regard to the question whether prescription must be considered as a
matter of procedural or formal law, or as a substantive law for the purpose of
the retroactivity of laws, we must state, with reference to the present case, that
the prescription provided in section 71 of Act No. 3030 is of the nature both of a
substantive law, in so far as it gives a person accused of any of the crimes
therein referred to, the right not to be prosecuted nor punished after the lapse
of the period of one year from the commission of said crimes, within which the
criminal action must be commenced, and of a procedural or adjective law in so
far as it fixes the time within which such action must necessarily be
commenced in order that the prosecution may be legal and the proper penalty
may lawfully be imposed. but however said provision may be considered, the
same must have a retroactive effect, as will be seen later on.

Therefore, as the instant case involves two special laws of the Philippine
Legislature, to wit, the Election Law contained in the above-mentioned chapters
of the Administrative Code, and Act No. 3030 which amended and modified the
former, it is evident that the provision declaring that offenses resulting from the
violations of said Act shall prescribe one year after their commission must have
retroactive effect, the same being favorable to the accused.
This, however, is objected to, although it is based on a general principle
frequently applied by many courts of the American Union, and in support of the
objection, several decisions of the said courts and a doctrine concerning the
matter found in Corpus Juris (volume 16, p. 222) and in Ruling Case Law are
cited, wherein it is established that laws fixing a period of prescription are not
applicable to crimes previously committed, unless by their terms they are
clearly retroactive or contain an express provisions to that effect.
We need not discuss each and every one of the said cases, it being sufficient
for our purpose to take up one of them, namely, that of Martin vs. State
([1859], 24 Tex., 62). There the Supreme Court of Texas held that as regards
crimes and misdemeanors, prescription had no retroactive effect and that the
Statute of Limitations enacted in 1854 could not have the effect of barring a
criminal action instituted within two years after the enactment of said Act,
provided that no period of prescription was fixed in a former law for the crime in
question, that is to say, that prescription cannot be invoked as a bar to a
criminal action for an offense like that of falsification involved in that case,
where said action was commenced under a statute authorizing it and in the old
law penalizing that crime no period was fixed for the prescription thereof. As
can be seen from a reading of the context of the decision in the aforesaid case
and the opinion of the writer thereof, said doctrine was announced without
taking into account the difference between the rule governing prescription in
criminal procedure and that applicable to civil actions, but on the contrary,
application was made only of the latter; hence the holding that a special
provisions as to prescription was necessary in the later statute to give it a
retroactive effect.
It should be noted, however, that the Chief Justice of that Supreme Court voted
vigorously against the said decision, stating in a well-reasoned dissenting
opinion the following:
I . . . am of opinion, that the limitation prescribe to prosecution applies
as well to prosecutions for offenses, committed before the passage of
the statute, as afterwards; and that, as the words of the statute plainly
import, the limitation commences to run from the time of the
"commission of the offense," whether that was before or after its
passage. The statute makes no distinction, as respects the limitation; it
makes no exception, from its provision, of offenses previously
committed; and I know of no principle, or rule of construction, which
will authorize the court to engraft an exception upon the statute. It is a
statute relating to the remedy, and being enacted for the benefit of
persons accused, is not an ex post facto law. The constitutional
inhibition of the enactment of retroactive laws, and laws impairing the

49

obligation of contracts, has no application to penal statutes.


Retroactive criminal laws, which are forbidden, are those which come
under the denomination of ex post facto laws. There is nothing to
prevent statutes, respecting crimes, from being restrospective,
provided they do not come under that denomination.

Entertaining these views, I could not give my assent to the imposition


of the pains and penalties of the law, where the prosecution had not
been commenced until after the expiration of the time within which the
legislature have positively enacted that the offense "shall be
prosecuted," or be forever barred.

It is an acknowledged general rule, in the construction of statutes, that


they will not be construed to have a restrospective operation so as to
destroy or impair rights of property, or of action, unless the legislature
have plainly expressed such to be their intention. But laws which affect
the remedy merely are not held to be within the rule or the inhibition
against retrospective laws, unless the remedy be entirely taken away,
or so restricted, as to impair the right. Nor, as I conceive, do statutes
relating to the punishment of offenses come within the rule of
construction, or the constitutional inhibition, though their effect should
be wholly to defeat a prosecution. On the contrary, laws respecting
crimes, whether they relate to the remedy merely, or to the offense,
are, I think, always construed to relate to past, as well as future
offenses, where their operation is in any wise beneficial to the accused;
unless the legislature have plainly declared that they are not to receive
such a construction. To give such effect to laws respecting crimes and
punishments, is not to render them retrospective, or retroactive laws,
in the sense of the constitutional inhibition. These terms have no
application to such laws, but relate exclusively to laws affecting civil
rights. (De Cordova vs. City of Galveston, 4 Tex., 470.)

Furthermore, Mr. Wharton, cited in one paragraph of the said dissenting


opinion, in his work entitled Criminal Pleading and Practice, 9th edition, 1889,
says that, as a general rule, the laws of prescription of actions apply as well to
crimes committed before the enactment, as afterwards, and speaking of the
rule to be applied to the prescription of actions and the interpretation of the
laws on that subject, he says in section 316, page 215, of said book the
following:

I do not think the reservation contained in the 81st section of the act
was intended to have, or should be construed to have, any effect upon
the limitation contained in the 75th section. That section was intended
only to prevent repeals by implication, and to enforce the observance
of the rule, which would have applied on general principles, without its
enactment, that where the act mitigates the punishment, the milder
penalty should be imposed. To hold it to apply to the limitation
prescribed for prosecution by the act, would be to except all offenses
committed before the passage of the act, from the operation of the
periods of limitation therein contained, and to hold that those offenses
would never become barred under its provisions. I cannot think that
such was the intention of the legislature.
There may be differences of opinion, respecting the policy of
prescribing so short periods of limitation, to prosecution for high
crimes. But that was a question for the law-making power; and I can
see no reason why the legislature should have intended the limitation
to apply to future, and not to pas, offense. The same reasons, and the
same policy, which dictated that the prosecution should be
commenced within a prescribed period, after the offense was
committed, would seem to apply equally to offenses committed before,
as to those committed after the passage of the statute.

We should at first observe that a mistake is sometimes made in


applying to statute of limitation in criminal suits the construction that
has been given to statutes of limitation in civil suits. The two classes of
statutes, however, are essentially different. In civil suits the statute is
interposed by the legislature as an impartial arbiter between two
contending parties. In the construction of the statute, therefore, the is
no intendment to be made in favor of either party. Neither grants the
right to the other; there is therefore no grantor against whom the
ordinary presumptions of construction are to be made. But it is
otherwise when a statute of limitation is granted by the State. Here the
State is the grantor, surrendering by act of grace its rights to
prosecute, and declaring the offense to be no longer the subject of
prosecution. The statute is not a statute of process, to be scantily and
grudgingly applied, but an amnesty, declaring that after a certain time
oblivion shall be cast over the offense; that the offender shall be at
liberty to return to his country, and resume his immunities as a citizen;
and that from henceforth he may cease to preserve the proofs of his
innocence, for the proofs of his guilt are blotted out. Hence it is that
statutes of limitation are to be liberally construed in favor of the
defendant, not only because such liberality of construction belongs to
all acts of amnesty and grace, but because the very existence of the
statute is a recognition and notification by the legislature of the fact
that time, while it gradually wears out proofs of innocence, has
assigned to it fixed and positive periods in which it destroys proofs of
guilt. Independently of these views, it must be remembered that delay
in instituting prosecutions is not only productive of expense to the
State, but of peril to public justice in the attenuation and distortion,
even by mere natural lapse of memory, of testimony. It is the policy of
the law that prosecutions should be prompt, and that statutes
enforcing such promptitude should be vigorously maintained. They are
not merely acts of grace, but checks imposed by the State upon itself,
to exact vigilant activity from its subaltern, and to secure for criminal
trials the best evidence that can be obtained.
But even if the rule generally and frequently applied by many courts of the
American Union and the doctrine laid down by them were those announced in
the above-mentioned paragraphs of the Corpus Juris and the Ruling Case Law,

50

the precept of article 22 of the Penal Code being clear and unmistakable,
according to which, penal laws have retroactive effect in so far as they are
favorable to persons accused of a felony or misdemeanor, the courts of justice
of these Islands cannot, and must not, make any application of the said rule
and doctrine, but must, on the contrary, abide by the said precept and comply
with it and carry it into effect, as hereinbefore stated, although no petition to
that effect is made by the accused that may be favored by those laws. And a
provision for the retroactivity of penal laws having, as it has, been made in the
said article in the terms already mentioned, it is evidently that when the
Philippine Legislature, the majority of whose members are also members of the
Philippine Bar, and, therefore, were aware of this legal provision, drew section
71 of the Election Law, Act No. 3030, to the effect that the offenses resulting
from the violations of the said law prescribe one year after their commission, it
ought to have known that it was not necessary for it to say that said provision
was to have retroactive effect in so far as it was favorable to the accused,
inasmuch as such provision had already expressly been made in article 22 of
the Penal Code, which was applicable not only to the prescription therein
provided when the same might be favorable to persons accused of those
crimes, but also to every penal law the retroactivity of which might be favorable
to persons accused of a felony or misdemeanor. And, this is the best and most
conclusive proof that in making the provision in section 71 aforecited, the
Legislature intended that same be given a retroactive effect, because the
members thereof could not ignore the law. From all of which it also necessarily
follows that, if that doctrine established by many courts of the metropolis is to
be applied in the instant case, it must be by saying that the same is useless or
that it was complied with in so far as the giving of a retroactive effect to the
said prescription was concerned, because that provision regarding retroactivity
has already been expressly made in article 22 of the Penal Code, and,
therefore, it is of no importance that in the former Election Law, that in, the
amended law, no provisions was made regarding prescription to give
immediate and full effect to the retroactivity provided in section 71 of Act No.
3030. The provisions of article 22 of the Penal Code, declaring the retroactivity
of laws favorable to persons accused of a felony or misdemeanor, is to be
deemed as if also expressly made in any new law at the time of its enactment,
when said law is a penal law, or one of a penal character, such as the
prescription contained in section 71 of Act No. 3030 here in question, which is
of that nature, as above stated, and there is no necessity of making in that law
any provisions to that same effect. And this is the reason why in the case
of Pardo de Tavera vs. Garcia Valdez, one of the first cases in the Philippine
Jurisprudence (1 Phil., 468) in which, the question, among others, was raised
whether the defendant, who was accused of grave insult defined and punished
in paragraph 1, article 458, of the Penal Code, should be punished under said
article, or under the provisions of Act No. 277, which is the Libel Law and went
into effect after the publication of the libelous article and the institution of the
criminal action, the court held, as stated in the syllabus, that:
"The general rule that penal laws shall be retroactive in so far as they favor the
accused has no application where the later law is expressly made inapplicable
to pending actions or existing cause of action," which clearly means that in
order for a penal statute favorable to the accused to have a retroactive effect, it
is not necessary that it be so expressly provided in the statues, or, to put it in

another way, that the provision declaring the retroactivity be repeated therein,
but that if the Legislature intends it not to have a retroactive effect, it should
expressly so state in the same statute. And the reason for it is obvious. For it
being the general rule, according to article 22 of the Penal Code, that penal
laws have retroactive effect in so far as they favor the accused, said general
rule applies to all laws that may be enacted in the future, and if the Legislature
intends to make an exception to the said rule, it should expressly say so.
Now, the eminent professor of International Law, Mr. Fiore, in his work on the
Irretroactivity and Interpretation of Statutes, which is termed by various
eminent jurists "a work full of juridical science," after recognizing as a rule
universally accepted by the courts and expressly sanctioned by most of modern
legislation that no penal law can have any retroactive effect, that is, that no
action or omission shall be held to be a crime, nor its author punished, except
by virtue of a law in force at the time the act was committed, advocates the
retroactivity of a penal law favorable to the offender, not as a right of the latter,
but founded on the very principles on which the right of the State to punish and
the combination of the penalty are based, and regards it not as an exception
based on political consideration, but as a rule founded on principles of strict
justice.
The same author, on studying the question that may arise in case the new land
should have changed the rules regarding prescription, that is to say, the
retroactivity of the law as to prescription, says:
The modifications as to prescription introduced by the new law may
affect the penal action or the penalty itself. With respect to the former,
it can be imagined that the new law has modified the rules as to the
applicability or inapplicability of the prescription to a given crime, or
the necessary conditions for its effectiveness, or, finally, the time and
period when it will have effect.
The authors who had studied this question have reached different
conclusions, because some have considered prescription as a law of
procedure or of form, while others have regarded it as a substantive
law, thereby admitting, therefore, the principle of vested right on the
part of the offender.
Those who have considered the statutes of limitations as of a formal or
remedial nature have maintained the opinion that the new law must
always be applied in all cases of prescription where the period was
already running at the time of the enactment of the new law on the
ground that all procedural laws must be deemed retroactive by nature.
Against this theory, however, it has been said that even admitting the
principle enunciated, the truth is that the culprit cannot be placed in a
worse situation, as would be the case if that theory is adopted, for
although the prescription begun under the former law, fixing a shorter
period, might have been completed, he would be subject to criminal
action under the new law prescribing a longer term, even if the
provisions of the latter, concerning the substance of the penal action,

51

were not in force at the time of the commission of the crime. Again,
setting aside the theory of vested right on the part of the accused, as
we have already done (for we cannot admit any vested right on the
part of a private individual as against that which is considered by the
sovereign power as indispensable for maintaining the juridical order), it
can, however, be maintained that the application of the new law about
the prescription of the criminal action, when said law has extended the
time of the prescription, is tantamount to giving that penal law a
retroactive effect, as regards the very substance of punishment, thus
prejudicing the offender and admitting, as to him, a right to punish,
which, on account of the longer period fixed in the new law, cannot be
considered as based on any law in force and already promulgated at
the time of the commission of the crime.
On the other hand, those who have considered prescription as a
substantive law hold that the old law should always be applied, the
principal reason adduced by them in support of this opinion being that
the accused must at all events suffer the consequences of the situation
created by himself by committing the crime. Against this opinion, it has
been held, however, that the consideration of public policy, which
naturally prevails in matters of prescription, constitutes an obstacle to
the invariable application of the old law, for if the new law is less
severe as regards prescription, the result would be that the culprit
would be subject to the more severe law, which has been modified in
harmony with the more modern criteria sanctioned by the new law as
more in consonance with justice.
xxx

xxx

xxx

To our mind, in accordance with the principles underlying all the


foregoing theories regarding the retroactivity of a less severe penal
law, it must be admitted that also when the question is one of
prescription must the new law be considered retroactive if it is more
favorable to the accused than the former law, and that contrariwise it
should not be so considered, if it is found to be more prejudicial.
Although we are maintaining this opinion, we do not thereby accept the
unjustified theory above set forth of those who believe that there must
be admitted here the supposed vested right on the part of the
offender, for we have already stated the reason why no such vested
right can be recognized as against the penalty provided by law. On the
contrary, we admit this theory, but founded on the principles of justice
itself upon which the right to punish, considered as a supreme right of
sovereignty, rests.
In fact, where the new law has shortened the time of prescription or
established easier conditions for its effectiveness with respect to a
given crime, it is clear that the reduction of the period made in the new
law implies an acknowledgment on the part of the sovereign power
that the greater severity of the provision of the former statute relative
to the substance of the criminal action is unjust.

Consequently, if the sovereign power should enforce its right under the
former law it would be guilty of an inconsistency in view of its implied
admission that the old law was too severe and consequently unjust.
The necessity therefore of applying the less severe new law rests upon
the principle that the sovereign power cannot exercise its right to
punish except only within those limits of justice which that sovereign
power has established as being just and equitable at the time of
exercising that right.
On the other hand, when the latter statute of limitations of criminal
actions is more severe than the former, either as to the applicability of
the prescription itself, or as to the requirements and duration of the
action, the application of the said law to crime committed before its
enactment must be avoided not because the culprit has acquired any
right to prevent said application, but for the reasons above set out.
Indeed, on what ground can the culprit pretend to prevent the
sovereign power from doing what it has the right to do for the purpose
of maintaining the juridical order? There exists, therefore, no reason in
support of the theory of vested right on the part of the culprit, but what
must inevitably be admitted is that the sovereign power cannot,
without doing an injustice, apply the more severe legal provision in the
matter of prescription; and that that provision cannot justly be applied
unless it was previously promulgated, as even the right itself to punish
cannot come into existence except by virtue of a law duly promulgated
and in force at the time that it was violated and the crime committed.
The more severe law in matter of prescription extends the field of
criminal action and affects the substance of the same, because it
determines the basis and the sphere of the right to punish. Now, can
the sovereign power do all this without any law? Can it, without
committing an injustice, extend the effect of the new law to acts
committed before its enactment? As the sovereign power cannot
punish any act not expressly penalized by a former law, nor punish
with a more severe penalty any act performed before said penalty was
prescribed and the law fixing it promulgated, so it cannot extend the
criminal action (that is, its right to punish) by virtue of a later law by
applying to acts completed before its promulgation the less favorable
provisions therein made regarding prescription. In fact, in any case
where reduction of the time of prescription formerly fixed is to be made
under a new law, or where harder conditions are required by said law
for effectively taking advantage of the prescription, the sovereign
power is exercising the right to punish acts committed prior to the
promulgation of the new law, and it is evident that no such right can be
recognized in the sovereign power.
From all of the foregoing, we conclude that upon the very principles of
justice, under which the less severe provisions of the new law must
regulate all the elements of the criminal action, said less severe new
law must also control the matter of prescription, provided that there is
no final and irrevocable judgment, and this rule holds good even if the
modifications of the statute have reference to the prescription of the
penalty, because in substance the prescription of the penalty is

52

equivalent to the prescription of the criminal action. (Fiore, pages 423428.)


Wharton gives a clear explanation of the distinction to be made between the
construction of prescription in criminal actions and that of prescription in civil
case in the paragraph above quoted from his book, and the grounds for the
distinction are also clear and are not unknown to anybody, for, as Wharton
says, they are inherent in the origin and nature itself of the law of prescription,
which must be liberally construed in favor of the accused for if prescription in
criminal matters is, as said author says, a benefit, a grace granted by the State,
and a waiver of its right to prosecute and an announcement that the crime is no
longer the subject of prosecution, from the moment that the granting of that
grace or benefit, or the making of such waiver, is known, the prosecution for
the said crime and the punishment of the offender would be a juridical
contradiction.
But the opinions discussed by Fiore in his book abovementioned are more in
point, for he refers precisely to the prescription provided in a later statute the
subject of which is the criminal action or the penalty, that is, the prescription of
the crime, as is the case now before us, or the prescription of the penalty,
whether prescription be regarded as a law of procedure or of form, or as
substantive law.
After examining the different opinions of the writers on the matter, Fiore has
come, as seen from the above quotation, to the conclusion that, whether the
statute relative to prescription be considered as of a procedural or formal, or
substantive, nature, the new statute must be applied if it is less severe or more
favorable to the accused, but not if it is more prejudicial, notwithstanding the
general rule that all procedural laws are retroactive in regard to prescription. In
view of the special motion filed by the accused on May 2, 1922, it does not
matter and it is of no importance, so far as the question herein raised is
concerned, whether the provision contained in section 71 of Act No. 3030 be
considered as of a substantive, procedural, or adjective character, because
applying the principles above enunciated, the result is the same, and the more
severe law in the matter of prescription extends, as Fiore says, the field of the
criminal action and affects the very substance thereof, because it determines
the basis and the sphere of the rights to punish.
It may, perhaps, be argued that no term having been fixed in the Election Law
prior to Act No. 3030 for the prescription of the offenses resulting from the
violations thereof, and said Act No. 3030 having fixed at one year the period for
the prescription, the former law is more lenient, less severe, and more
favorable to the persons accused of those offenses than the latter. Such an
argument, however, is absolutely erroneous and untenable, if it is borne in
mind that no period of prescription having been fixed in the former law, those
offense were imprescriptible, and the offender could be prosecuted and
punished at any time and indefinitely, even ten, twenty, or more years after the
commission thereof, whereas the new law, that is, Act No. 3030 in providing the
period of one year for the prescription, has, in effect, shortened the time of
prescription fixed in the old law by virtue of the silence thereof, reducing it to

one year and has established less difficult conditions for the application of the
same as regards those offenses, which is evidently more favorable and lenient
to the violators of the said former law, and, as Fiore says in one of the
paragraph above quoted from his book, the reduction made by the new law
implies a recognition on the part of the sovereign power that the greater
severity of the former law, as regards the substance of the criminal action, is
unjust, and it would contradict itself if it would attempt to enforce its right
under the conditions of the former law which has already been regarded by the
conscientious public opinion as juridically burdensome, and, therefore, unjust,
and the sovereign power cannot exercise the right to punish except within the
limits regarded by it as just at the time of exercising it.
If, therefore, in reviewing the former Election Law contained in the two chapters
of the Administrative Code hereinbefore mentioned, for the purpose of
amending and reforming it in accordance with the dictates of reason, justice
and experience, the Legislature did amend and reform it by the enactment of
Act No. 3030, which supplied the deficiency found in the old law with regard to
the prescription of the crimes penalized therein, by providing in section 71 of
Act No. 3030 that those crimes, which year after their commission, because
their imprescriptibility was considered by the conscientious public opinion as
juridically burdensome, and, therefore, unjust, it is evident that the State, the
Government and the courts of justice representing it, cannot, without
committing a gross injustice, exercise the right to prosecute and punish the
violator of the old law under the conditions required by the law and outside of
the limits now regarded by the sovereign power, that is to say, the Legislature,
as just by the enactment of said Act No. 3030, which took effect on March 9,
1922. And such injustice would be more apparent still, if the violators of the old
Election Law, which was amended by Act No. 3030, would be prosecuted and
convicted five, ten, twenty, or more years after the said violations when the
proof of their innocence may not have been kept by them, while violators of Act
No. 3030, who may not have been prosecuted within the one year fixed by
section 71 aforesaid, would be free from being prosecuted and punished for the
crimes committed by them. And this injustice, which is so contrary to
conscientious public opinion and repugnant to humane sentiments, would
necessarily result, if the provisions of section 71 of Act No. 3030, which is now
in force, are not immediately applied right at this stage of the case in favor of
the herein accused, by taking up first the special motion of the accused filed on
May 2d of this year, before the petition for reconsideration and re-hearing
hereinbefore mentioned, or, better, by ignoring the said petition and disposing
of the case by deciding the motion of May 2d, wherein the accused invoked the
prescription provided in the said section, for the reason that this action was
commenced on December 20, 1920, one year and a half after the commission
of the offense resulting from the violation of the Election Law with which they
are charged.
In view of the foregoing, we find the said crime to have prescribed, and setting
aside the decision of this court published on the 31st of March of this year, the
present action is dismissed with all the costs de oficio, and the bond given by
the accused for their provisional release is cancelled, which release is hereby
declared final. So ordered.

53

Street, Avancea, Villamor, and Romualdez, JJ., concur.

MALCOLM, J., with whom concur JOHNSON and JOHNS, JJ., dissenting:
The high respect which I entertain for the authors of the majority opinions in
the cases of People vs. Moran and People vs. Parel,1 should not, of course, keep
me silent when I am strongly of the opinion that judgments grounded in a
mistaken view of the law are being handed down. My desire to state clearly and
bluntly my dissent from the majority opinions is only bounded by the paucity of
the English language in which to express myself. According to my view, as will
hereafter be demonstrated, the majority decisions discuss questions which
need no discussion, do violence to plain provisions of the law, take stands supported by no authority which can be discovered, and attain the result of
effectuating a general jait delivery of crim-inals who had thwarted the people's
will during the elec-tions in 1919.
An introductory and pertinent inquiry can well be, what is the effect of the
majority decisions?
Juan Moran, Fructuoso Cansino, and Hilario Oda, election inspectors of the first
precinct of the municipality of Bina-lonan, Pangasinan, were found guilty by
Judge of First Instance Nepomuceno and again on appeal by the Supreme
Court, with the sole modification that the penalty was increased, of having
falsified election returns.-But Moran, Cansino, and Oda will now never enter the
portals of prison.
Raymundo, Verceles, election inspector of the fifth pre-cinct of the municipality
of Binalonan, Pangasinan, was found guilty by Judge of First Instance
Nepomuceno, and again on appeal by the Supreme Court, with the sole modification that the penalty was increased, of having falsified election returns, and is
now serving his sentence.-Verceles will now be liberated.
Norberto Parel and Daniel Paz, election inspectors of the second precinct of the
municipality of Bantay, Ilocos Sur, were found guilty by Judge of First Instance
Jaranilla, of having unlawfully written the ballots of illiterate persons, with the
result that following the trial in an election contest, the protestant was declared
elected.-But though the two cases are on the calendar, the motion to dismiss
being granted, the question of the guilt or innocence of Parel and Paz will never
be determined by the appellate court.
Andres Imzon, chief of police of the municipality of San Pedro, Laguna, was
charged in the Court of First Instance of Laguna, with having unlawfully
intervened in the elec-tions of 1919, by soliciting votes in the election booths
and exchanging ballots previously prepared by him with those received by the
electors from the election board; Claudio de Leon and Alejandro Cailao, election
inspectors of the second precinct of the municipality of Bay, Laguna, were
charged with having seized and destroyed fifty official ballots already filled in

by different persons; and Alejandro Cailao, election inspector of the second


precinct of the municipality of Bay, Laguna, was charged with having
abstracted four official ballots duly filled in from the ballot box and having
delivered them to Julian Carrillo, a can-didate for municipal president.-But
Imzon, De Leon, Cai-lao, and Carrillo will never have these serious charges
resolved by the courts of justice.
Francisco Hutalla, Jacinto Alfajora, and Hermogenes Orijuela, election inspectors
in the first precinct of Maca-lelon, Tayabas, and Francisco Catarroja, election
inspector in the second precinct of the same municipality, were charged with
various unlawful acts intended to secure a victory for.Demetrio Pandeno, their
candidate for munic-ipal president.-But Hutalla, Alfajora, Orijuela, and Catarroja, will now have this record stand without any judicial decision as to their
guilt or innocence.
Mariano Quilona, Bartolome Severe, and Matias Operario, election inspectors of
the municipality of San Julian, Samar, were found guilty by Judge of First
Instance Capistrano of having falsified the election returns.-But though the guilt
of Quiloiia, Severe, and Operario is clearly apparent, the appeal in this court
cannot go forward and they are absolved from the criminal charges.
Liberate Exaltacion, municipal president of Meycawayan, Bulacan, was
convicted of having extracted ballots from the urn used in Meycawayan, and
was sentenced by Judge of First Instance Jocson to three months' imprisonment,
and to pay a fine of f*125.-But Exaltacion, although thus found guilty by a judge
of long experience, of a most serious crime, will now be exonerated.
Cesareo Navarrete, Ambrosio Diapo, Luciano Nabaira, Eugenio Nabor, Apolonio
Castro, Mamerto Navarra, Esta-nislao Nabor, Tolomeo Segovia, Aproniano
Navarrete, Hipolito Nalangan, Ricardo Nahil, and Severino Nalangan, residents
of the municipality of Libacao, Capiz, were found guilty by Judge of First
Instance Salas of having provoked such tumult and confusion in and about the
second election precinct of the municipality of Libacao, that the election
inspectors and policemen were prevented from performing their respective
duties, and of having seized the ballot boxes and other election effects, thus
frustrating th'e election in that precinct.-But all these twelve persons found
guilty by the trial court, and guilty, also, as we read the record, will escape the
penalties of the law.
Twelve (12) cases pending in this court relating to thirty (30) defendants are
thus seen to involve the retroactivity of section 71 of Act No. 3030. According to
the revised figures reported by the Attorney-General, the outcome of at least
twenty (20) cases in courts of first instance relating to sixty-one (61)
defendants likewise depend on our deci-sion on this question. All told, thirtytwo (82) cases and ninety-one (91) defendants. Quite a respectable jail delivery.

54

The point next in logical order, to which I would address attention, is whether
the question of the retroactivity of Act No. 3030 is properly and legally before
the court.
The status of the Moran case is of particular interest. Recall-Appeal perfected
and four errors assigned, but naturally not including the point of prescription
under Act No. 3030, for the very good reason that the Act was not yet on the
statute books. Act No. 3030 enacted and effective on March 9, 1922. Case
submitted, and judgment of Supreme Court rendered on March 31, 1922.
Motion of reconsideration filed by the attorney for the appellants, within the
regular fifteen-day period, based on two counts, but again not including the
point of prescription, although Act No. 3030 was then in force. Not until May 2,
1922, that is, not until two months after judgment was rendered, when a third
motion, which the Chief Justice is pleased to call a "special motion," was
presented, was the contention made that the alleged crime had prescribed in
accordance with section 71 of Act No. 3030.
The Chief Justice finds no difficulty in surmounting these obstacles, although
the constant practice of the court has been not to allow new and original
questions to be presented for the first time on a motion for rehearing; although
the court has consistently required that all arguments be ad-vanced in one
motion of reconsideration, and although the Rules of the Court are explicit and
mandatory, when they provide that "judgment shall not be entered until ten
days after * * * publication," that "five days after entry of judgment the clerk
shall remand the case to the lower court," and that "applications for a rehearing
shall be filed within fifteen days after the publication of the decision of the
court." (Note U. S. vs. Serapio [1912], 3 Phil., 584; Lucido and Lucido vs. Vita
[1911], 20 Phil., 449; Espidol vs. Espidol and Espidol [1913], 25 Phil., 4; Rules of
the Supreme Court of the Philippines, 33, 34, 35; 4 C. J., pp. 629, 642.)
Conceding, however, that as to all these preliminary mat-ters the majority are
right, and I am wrong, I am yet ready to meet them on their own ground and
am prepared to prove that the provisions of section 71 of Act No. 3030
approved March 9, 1922, providing that "Offenses resulting from violations of
this Act shall prescribe one year after their commission," should not, and
cannot be given retro-active effect, if the law is to be followed and justice is to
be done. The importance of the subject will serve as an apol-ogy for a lengthy
and serious consideration of the question above stated.
Act No. 3030 of the Philippine Legislature is entitled, "An Act to amend certain
sections and parts of sections of chapter eighteen, known as the Election Law,
and chapter sixty-five, on penalties for violations of certain administra-tive
laws, of Act Numbered Twenty-seven hundred and eleven, entitled 'An Act
amending the Administrative Code/ to make more effective the provisions and
purposes of said Election Law, and for other purposes." The first seventy
sections of Act No. 3030 amend specifically named sections of the
Administrative Code "to read as follows." Then follows section 71 above quoted.
The Act concludes with section 72 reading: "This Act shall take effect on its
approval." The Act was approved on March 9, 1922.

The first duty of the courts is to apply the law. The last duty of the courts is to
interpret or construe the law. When, therefore, the Philippine Legislature said
that "Offenses resulting from violations of this Act shall pre-scribe one year
after their commission," it meant exactly what it said, and the only duty of the
court is to make effective the legislative language. "This Act" could mean only
Act No. 3030. Judicial interpretation or construction are consequently
impertinent and offensive in the face of the plain words used by the Legislature.
It has, however, been suggested, that "this Act" means "the Election Law as
amended." Even if this proposition be conceded, yet it remains true that the
amendatory Act will not be given a retrospective construction; the new
provisions are to be understood as enacted at the time the amended act takes
effect. (36 Cyc., 1223.) In this instance section 72 says that "This Act (No. 3030)
shall take effect on its approval"-on March 9, 1922.
It should be observed in relation to what has just been said with regard to the
appropriateness of merely applying the law, that there is nothing in section 71,
or in any other section of Act No. 3030, which would authorize a retrospec-tive
construction. Not one word which even squints at a retroactive effect can be
found in Act No. 3030. If the Philippine Legislature had intended that Act No.
3030 should apply to pending cases, it could easily have used language to this
effect; as for example, "Offenses heretofore committed," etc. Not having done
so, the courts cannot write such words into the law without usurping legislative
prerogatives.
It is a cardinal rule of statutory construction, so elemen-tary that I hesitate to
repeat it, that if the courts find it impossible to apply the law, then their duty is
to ascertain and give effect to the intention of the law-making body. Here, the
intention of the Philippine Legislature is self--evident. The various sections of
Act No. 3030 were care-fully drafted to close up the loopholes in the old
Election Law and to provide more severe penalties. The purpose of the
Legislature, as announced in the title of the law, is, in part, "to make more
effective the provisions and purposes of said Election Law." It would be a,
strange interpretation indeed, which would attain the result, in a law of this
character, of liberating criminals convicted at the time the law went into effect,
when the Legislature intended to provide more effectively for cleaner elections.
With strong reluctance, therefore, am I led away from the firm ground on which
my feet are planted, when we simply apply the law and effectuate legislative
intention, to follow strange and treacherous.bypaths. That I do so is because of
the energy with which these arguments have been pressed by counsel and out
of respect to the point of -view of colleagues in the Court.
The majority say that "Both consistency and sound legal principle^, * * *
demand that we, in this case, seek our precedents in Latin rather than in
American jurispru-dence." I had thought that the Philippines was under
American sovereignty and that the Election Law was an American importation.
But apparently I have been mis-taken. As, however, the majority with
"consistency" cite Wharton, an American authority, possibly, also, I may be

55

pardoned if I use the same authority and give some promi-nence to the
American precedents.
Mr. Wharton, in his treatise on Criminal Pleading and Practice (9th ed., 1889)
announces the following doctrine: "As a rule, statutes of limitation apply to
offences perpe-trated before the passage of the-statute as well as to subsequent offences."' (P. 219.) The. cases cited in support of the text are found on
examination to be early Federal cases relating to the 32d section of the Act of
Congress of April 30, 1790. The contention there denied was "that an act of
limitations to criminal prosecutions can only be used as a bar in cases declared
by law to be criminal at the time the act of limitations was passed, unless there
be express words extending it to crimes to be created in fu-ture." (See Adams
vs. Woods [1805], 2 Cranch, 336.)
Corpus Juris (published in 1918), which the majority decisions avoid
mentioning, is authority for a different statement of the rule, under the subject
"Limitation of Prosecutions in Criminal Cases," namely: "Such statutes are to be
given a reasonably strict construction in favor of accused and against the
prosecution. By the weight of authority, however, they do not apply to crimes
previously committed, unless clearly retrospective in their terms." (16 C. J.,
222.) The cases in support of the last sentence are the following: People vs.
Lord ([1877], 12 Hun. [N. Y.L 282), and Martinis. State ([1859], 24 Tex., 62)..
Contra, Commonwealth vs. Hutchinson ([1850], 2 Pars. Eq. Gas. [Pa.], 453, 1
Phila., 77).
The New York case cited is not available in our library. In a standard treatise,
Wood on Limitations, special refer-ence is, however, made to it. It is said: "In
New York such statutes are held not to apply to crimes committed before the
statute was changed, unless expressly included therein, adopting the rule in
that respect applicable In civil cases." (Wood on Limitations, 3d ed., p. 45.)
In the second case cited in the note to Corpus Juris, Martin vs. State, the
Supreme Court of Texas held: "Stat-utes of limitations for the prosecution of
crimes and mis-demeanors, do not have a retrospective operation. * * * The
statute of limitations passed in 1854 could not operate as a bar to a
prosecution commenced within two years from the time that statute went into
operation, there being no previous limitation to the prosecution of the offense
in question." The Chief Justice rendered a dissenting opinion, which is now
made one of the props of the opinion of our Chief Justice.
The same result was obtained in decisions coming from Massachusetts.
(Commonwealth vs. Boston and Worcester Railroad Corporation [1853], XI
Gush. [Mass.], 512; and Commonwealth vs. Homer [1891], 153 Mass., 343.) In
the first Massachusetts case it was held that an indictment against a railroad
company under St. 1840, c. 80, for negli-gently causing the death of a
passenger, is not within Rev. Sts. c 120, sec. 21, limiting actions and suits for
any penalty, or forfeiture, to one year after the offense is committed, for the
reason that St. 1853, c. 414, sec. 3, does not apply Jo indictments pending at
the time of its passage. In the second Massachusetts case, it was held that the
Statute of 389, c. 100, providing that in a criminal prosecution on the Pub. Sts.

c. 207, sec. 9, for attempting to procure a mis-carriage, the dying declaration of


the woman shall be ad-missible in evidence, if her death is alleged to have
been the result thereof, is prospective only in its operation, and does not apply
to an indictment found after its passage for' such an offense theretofore
committed. The court followed the language of another case, namely:
"'The statute is equivocal and ambiguous in its terms, and might without doing
violence to the words in which it is expressed be construed as retroactive. But
such is by no means its necessary interpretation. On the contrary, it willhave
full meaning and effect, consistent with the fair import of its language, if it is
held to be prospective only. The true rule of interpretation applicable to such
enactments is well settled, and has been often recognized and affirmed by this
court. It is, that all statutes are to be considered as prospective, and are not to
be held to prejudice or affect the past transactions of the subject, unless such
intention is clearly and unequivocally expressed. (Whitman vs. Hapgood, 10
Mass., 439; King vs.'Tirrell, 2 Gray, 331; Gerry vs. Stoneham, 1 Allen, 319, 323;
Garfteld vs. Bemis, 2 Allen, 446.) No good reason can be given for excepting
the statute under consideration from the operation of this wise and salutary
rule.' There is no express intention to make the St. of 1889, c. 100, retroactive
in its operation, and none can be implied from the subject-matter; it will have
full effect if construed as prospective only, and, in the opin-ion of a majority of
the court, it must be so construed."
The following was the holding of the Supreme Court of Pennsylvania in the case
of Commonwealth vs. Duffy [1880], 96 Pa. St., 506):
"An act of limitation is an act of grace purely on th& part of the legislature, and
especially is this the case in the matter of criminal prosecutions. The state
makes no con-tract with criminals, at the time of the passage of an act of
limitations, that they shall have immunity from punishment if not prosecuted
within the statutory period. Such enact-ments are measures of public policy
only. They are entirely subject to the mere will of the legislative power, and
may be changed or repealed altogether as that power may sec fit to declare.
When a right to acquittal has not been absolutely acquired by the completion of
the period of limita-tion, that period is subject to enlargement or repeal without
bemg obnoxious to the constitutional prohibition against ex post facto laws."
(See also Thompson vs. State [1877], 74 Miss., 740, and Moore vs. State
[1881], 43 N. J. L., 203.)
With the exception of the Philadelphia city case, which cannot be found in the
Philippines, all other courts which have given consideration to the subject have
refused to give retroactive effect to statutes establishing limitations of actions
in criminal cases, and have, we think, with all propriety, adopted the rule in civil
cases pertaining to limitations of actions.
A rule as old as law itself is that statutes ought to be construed to be
prospective, and not retrospective, in opera-tion. Laws look forward and not
backward. Nova cons-titutio futuris formam imponere debet, non praeteritis.
This rule is applicable to statutes of limitation, unless by express command, or
by necessary and unavoidable impli-cation, a different construction is required.

56

It has been held that the rule for the construction of statutes of limita-tions,
with respect to their operation as being retroactive or not, requires such
statutes (whether new, reenacted or amended), to be given a wholly
prospective effect, that is, to commence running with respect to a particular
cause of action from the time when the cause is subjected to the operation of
the act, so that the party may have the full period prescribed thereby, unless it
clearly appears that the legislature intended the act to operate on existing
causes, so as to commence running from the time any such cause accrued.
(Thomas vs. Higgs & Calderwood [1910], 68 W. Va., 152, Ann. Cas.,.1912A,
1039; Hathaway vs. Mer-chants' Loan and Trust Co. [1905], 218 III., 580; 4 Ann.
oGas., 164; Moore vs. State [1881], 43 N. J. L., 203; Herrick vs. Boquillas Land &
Cattle Co. [1906], 200 U. S., 96, 102; U. S. Fidelity etc. Co. vs. Struthers Wells
Co., [1907], 209 U. S., 806.)
Ruling Case Law summarizes the principles governing the construction of
limitation laws as follows:

"There are certain principles which have been adhered to with great strictness
by the courts in relation to the construction of statutes, as to whether they are
or are not retroactive in their effect. The presumption is very strong that a
statute was not meant to act retrospectively, and it ought never to receive such
a construction if it is suscep-tible of any other. It ought not to receive such a
construc-tion unless the words used are so clear, strong, and imperative that no
other meaning can be annexed to them or unless the intention^ of the
legislature cannot be otherwise satisfied. (Dash vs. Van Kleeck, 7 Johns., 477,
499; Jack-son ex dem Hicks vs. Van Zandt, 12 Johns, 169; United States vs.
Heth, 3 Cranch, 399, 414; Southwestern Coal & Improv. Co. vs. McBride, 185 U.
S., 499, 503; United States vs. American Sugar Ref. Co., 202 U. S., 563, 577.)
"The language of the amended act is prospective, as it provides 'that hereafter
any person or persons entering into a formal contract with the United States/
etc. That language standing alone would leave little doubt as to the intention of
Congress in the matter of the taking effect of the amendment.

"One rule for the construction of laws is that statutes of limitation are presumed
to be prospective and not retro-spective in their operation, in the absence of a
clear legis-lative intent to the contrary, and the presumption is against any
intent on the part of the legislature to make such statute retroactive. It has
been said that words of a statute ought not to have a retrospective operation
unless they are so clear, strong, and imperative that no other meaning can be
annexed to them, or unless the intention of the legislature cannot be otherwise
satisfied. *. * * Some courts take the view that since limitation laws apply only
to the remedy, they are not within the principle that statutes should be given a
prospective rather than a retrospective construction, and therefore that they
should be construed as retrospective unless they contain no language clearly
limiting their appli-cation to causes of action arising in the future. But it has
also been pointed out that even statutes as to procedure are not necessarily
retrospective in their operation and the courts are not compelled to construe as
retrospective a limitation law dealing with procedure only." (17 R. C. L., 682684.)

"It is urged, however, that as the amendment in this respect but reiterates the
language of the original act, the use of the word 'hereafter' in the
commencement of the amendment ought not to have the significance which
would >therwise attach to it, because it is simply in this particular reenacting
the law as it already stood.

"While it is undoubtedly within the power of the legis-lature to pass a statute of


limitations or to change the period of limitation previously fixed and to make
such statute or changes applicable to existing causes of action, provided a
reasonable time is given by the new law for the commence-ment of suit before
the bar takes effect, yet such a statute is not to be readily construed as having
a retroactive effect, but is generally deemed to apply merely to causes of
action arising subsequent to its enactment, and the presumption is against any
intent on the part of the legislature to make the statute retroactive. The statute
will only be given a retroactive effect when it was clearly the intention of the
legislature that it should so operate." (25 R. C. L., 792, 793.)

"Viewing the whole section, we think Congress meant that only in future cases
should the provisions of the amend-ment apply, although some trifling portion
of those provi-sions might be regarded, technically, as in the nature of
procedure. It is therefore wiser to hold the entire section governed by the usual
rule and as applying only to the future."lvvph1n+

One of the cases cited in support of the general rule, and oft followed by other
courts, is United States Fidelity etc. Company vs. Struthers Wells Co., supra. In
the course of the opinion of the United States Supreme Court, it was said:

"There is considerable force in the suggestion that the word 'hereafter' is not to
receive the weight which in other circumstances it ought to have. The question
is, however, one as to the intention of Congress, and when we come to took at
the provisions of the statute, as amended, we are convinced that Congress did
not intend that the amendment should apply to cases where the bond had
already been executed, the work done, the respective rights of the parties
settled, and the cause of action already in existence. If Congress had intended
otherwise, we think it would have still further amended the original act by
providing in plain language that the amendment should apply to all cases, and
not be confined to the future. * * *

It is, however, insisted with marked earnestness, that notwithstanding the


simple and plain provisions of section 71 of Act No. 3030, and the almost
universal rule adopted by the American courts, we are in duty bound to apply
the provisions of the Spanish Penal Code.
Article 7 of the Penal Code reads: "Offenses punishable under special laws are
not subject to the provisions of this Code." In the decision of the Supreme Court
of the Phil-ippines, in which most elaborate consideration was given to article 7
of the Penal Code, the rule adopted was: "That, when a crime is made

57

punishable by a law other than by the provisions of the Penal Code, the
provisions of said code do not apply." Following Viada in his commentaries on
the Penal Code (1 Viada, 84), it was also pointed out that among the special
laws are election laws. (U. S. vs. Se-rapio [1912], 23 Phil., 584, 592, 593.) The
majority de-cisions are strangely silent as to the decision last cited.
Paraphrasing article 7 of the Penal Code as construed by this court: As offenses
are made punishable by Act No. 3030, a special lawt the provisions of the Penal
Code do not apply. But it is said that article 7 should be interpreted with
reference to other articles of the Penal Code, and I concede that this is a fair
argument.
Article 22 of the Penal Code is found in Title III, which is headed, "Penalties."
Chapter I of Title III is entitled "Penalties in General." Only passing reference is
made to the epigraphy, in order to concede everything possible to the
argument of the petitioner in this case. Coming then to a consideration of the
substance of article 22 of the Penal Code, its effect can best be judged by
setting it side by side with article 3 of the Civil Code, since both articles have
been given indiscriminate application to criminal laws. These two provisions of
Philippine law read as follows:
"ART. 22. Penal laws shall have a retroactive effect in so far as they favor the
per-son guilty of a felony or misdemeanor, although at the time of the
publication of such laws a final sentence has been pronounced and the convict
is serving same."
"ART. 3. Laws shall not have a retroactive effect un-less therein otherwise provided,"lvvph1n+
Article 3 of the Civil Code, given express application to criminal laws in the case
of United States vs. Cuna ([1908], 12 Phil, 241), bears out the general doctrine
previously announced. Article 22, on the other hand, is of an opposite tenor,
and if given controlling effect, might lead to a contrary result. The first two
words of article 22 are "Penal laws." What is meant by the term "Penal laws?" Is
section 71 of Act No. 3030 a "penal law?"
I feel that I can, with all propriety, turn to the definition of "penal law" given by
the American authorities, not only because there are numerous judicial
definitions of the phrase available, but because the Election Law, establishing
the Australian Ballot System, is primarily an American innovation, which was
unknown in Spain when the Penal Code of 1870 was promulgated.
"PenaUaws," all of the English and American decisions state, strictly and
properly are those imposing punishment an offense committed against the
state, and which, by the English and American constitutions, the executive of
the state has the power to pardon. In other words, a penal law denotes
punishment imposed and enforced by the state for a crime or offense against
its law. It would be palpably incongruous to call a statute penal which did not
contain a definite and certain provision for punishment. On the other hand, a

statute which gives a remedy for an injury belongs to the class of remedial
statutes, and not to that of penal statutes. (Huntington vs. Attrill [1892], 146 U.
S., 657; Whitman vs. National Bank of Oxford [1900], 176 U. S., 559; Shick vs.
United States [1904], 195 U. S., 65; The Antelope [1825], 10 Wheat., 66, 123;
United States vs. Reisinger [1888], 128 U. S., 398, 402; Davis vs. Mills [1903],
121 Fed., 703, 704; United States vs. Illinois Cent. R. Co. [1907], 156 Fed., 182,
185; United States vs. Four Hundred and Twenty Dollars [1908], 162 Fed., 803,
805; Ross vs. New England Mortg. Security Co. [1893], 101 Ala., 362; Nebraska
Nat. Bank vs. Walsh [1900], 68 Ark., 433; Levy vs. Superior Court [1895], 105
CaL, 600; Plumb vs. Griffin [1901], 74 Conn., 132; Mitchell vs. Hotchkiss [1880],
48 Conn., 9, 19; Southern Ry. Co. vs. Melton [1909], 133 Ga., 277; Woolverton
vs. Taylor [1890], 132 111,, 197; Diversey vs. Smith [1882], 103 III., 378, 390;
American Credit-Indemnity Co. vs. Ellis [1901], 156 Ind., 212; State vs.
Hardman [1896], 16 Ind. App., 357; Lagler vs. Bye [1896], 42 Ind. App., 592;
Sackett vs. Sackett [1829], 25 Mass., 309, 320; Cary vs. Schmeltz [1909], 141
Mo. App., 570; Casey vs. St. Louis Transit Co. [1905], 116 Mo. App., 235; State
ex rel Rodes vs. Warner [1906], 197 Mo., 650; Manhattan Trust Co. vs. Davis
[1899], 23 Mont., 273; Globe Pub. Co. vs. State Bank [1894], 41 Neb., 175;
Boice vs. Gibbons [1826], 8 N. J. Law, 324, 330; Hutchinson vs. Young [1903],
80 N. Y. S., 259; People vs. Wells [1900], 65 N. Y. S., 319; Smith vs. Colson
[1912], 31 Okl., 703; Kiltoh vs. Providence Tool Co. [1905], 22 R. I., 605; Aylsworth vs. Curtis [1896], 19 R. I., 517; Whitlow vs. Nash-ville, C. & St. L. R. Co.
[1904], 114 Tenn., 344; Drew vs. Russel [1875], 47 Vt, 250, 253; Norfolk & W. R.
Co. vs. Hall [1897], 44 W. Va, 36.)
Escriche, Diccionario Razonado de Legislacidn y Juris-prudencia (vol. Ill, p. 898),
defines "ley penal," the Spanish equivalent of "penal law," as follows: "Ley
penal es la que tiene por objeto algun delito y la pena con que ha de castigarse." Diccionario Encidopedico de la Lengua Caste-liana defines "penal"
thus: "Perteneciente o relativo a la pena o que la incluye;"-and "pena" thus:
"Castigo im-puesto por superior legitimo al que ha cometido un delito o falta."
The first instance in which our Supreme Court gave con-sideration to article 22
of the Penal Code, was in the case Jof Pardo de Tavera vs. Garcia Valdez
([1902], 1 Phil, 468), The Chief Justice, in his decision, relies on the syllabus
which, of course, is the statement of the reporter and not of the court. I prefer
to go to the opinion, wherein it was said:
"Section 13 of the same act provides as follows: 'All laws and parts of laws now
in force, so far as the same may be in conflict herewith, are hereby repealed:
Provided, That nothing herein contained shall operate as a repeal of exist-ing
laws in so far as they are applicable to pending actions or existing causes of
action, but as to such causes of action or pending actions existing laws shall
remain in full force and effect/ This act went into effect October 24, 1901,
subsequent to the publication of the article in question, and during the
pendency of the prosecution. By article 22 of the Penal Code 'Penal laws shall
have a retroactive effect in so far as they favor the person guilty of a crime or
mis-demeanor/ etc. The court below in fixing the punishment proceeded upon
the theory that by the operation of this general rule the penalty prescribed in
the Penal Code for the offense in question was necessarily modified and could
not be inflicted in its full extension. In so doing we think the court overlooked or

58

improperly construed the proviso in the section of Act No. 277, above cited, by
virtue of which the previously existing law on the subject covered by the act is
left intact in all its parts as respects pending actions or existing causes of
action. The language is gpu-eral and embraces, we think, all actions, whether
civil, criminal, or of a mixed character. In this view of the case we have no
occasion to consider the question argued by coun-sel for the private prosecutor
as to whether the provisions of Act No. 277 respecting the penalty are more
favorable to the accused than those of the former law or otherwise. The
punishment must be determined exclusively by the provisions of the former
law."
The case of United States vs. Hocbo ([1908], 12 Phil, 304) oft mentioned by Mr.
Justice Ostrand, merely holds that (I now quote from the body of the decision),
"All amendments of the law (meaning the Penal Code) which are beneficial to
the defendant, shall be given a retroactive effect, in so far as they favor the
person charged with the crime or misdemeanor. * * * We find nothing in Act No.
1773 which is more favorable to the defendant than the provisions of the Penal
Code."
The case of United States vs. Parrone ([1913], 24 Phil, 29), gave special
attention to the relative effect of articles 7 and 22 of the Penal Code. It was said
that "Article 22 must necessarily relate (1) to penal laws existing prior to the
Penal Code, in which the penalty was less severe than those of the Penal Code;
or (2) to laws enacted subsequent to the Penal Code, in which the penalty was
more favorable to the accused. Rule 80, Ley Provisional para la aplica-cion de
las disposiciones del Codigo Penal. Under the pro-. visions of said article 22, if a
crime had been committed prior to the date of the Penal Code the punishment
for which was more favorable to the accused than the provisions of the Penal
Code, it is believed that the accused might invoke the provisions of said article
(22) even though he was not placed upon trial until after the Penal Code went
into effect. (U. S. vs. Cuna [1908], 12 Phil., 241.) So also if by an amendment to
the Penal Code or by a later special law the punishment for an act was made
less severe than by the provisions of the Penal Code, then the accused person
might invoke the provisions of said article." We gather from this language that
the phrase "penal laws" used in article 22 relates to laws enacted subsequent
to the Penal Code, in which the penalty is more favorable to the accused or the
punishment for the act is made less severe.
Statutes of limitation, it is well settled, relate to the remedy and not to the
right; relate to procedure and not to the crime. (Moore vs. State, supra;
Commonwealth vs. Duffy, supra; 17 R. C. L., 703, citing Mulvey vs. Boston
[1908], 197 Mass., 178; U. S. vs. Serapio, supra.) Viada, in his commentaries on
the Penal Code (vol. I, p. 570, 4th ed.), makes the following observations:
"Prescription of the crime only means the termination of the right or power to
prosecute or punish the offender, after the lapse of a definite period from the
commission of the offense, or if this is not known, from the day of its discovery
and the beginning of the judicial proceedings for investigation and
punishment." The supreme court of Spain, in a decision of January 22, 1872,
held that when the law speaks of the prescription of an offense, it cannot be
understood to mean other than that of the action to prosecute the same.

This construction is the more apparent, when it is re-membered that the Penal
Code, although it does contain some provisions concerning procedure, is,
generally speak-ing, substantive law. As such substantive law, it is but
reasonable to suppose that it would only reach special laws of a similar nature.
It must also be recalled that the crim-inal actions in the case before us and in
all other cases on appeal to tbe court, were instituted before the time Act No.
3030 took effect, and that these courts of first instance had jurisdiction of the
cases at that time.
What, therefore, is the condition of the much vaunted Latin law and
jurisprudence on the question under discus-sion? First, article 7 of the Penal
Code and our decisions make Act No. 3030 not subject to the provisions of the
Penal Code; second, article 22 is found in a title and a chapter of the Code
relating to "Penalties," and the article itself specifies "Penal laws;" third, section
71 of Act No. 3030 does not concern "penalties," and is not a "penal law," but is
a procedural law.
Not a single authority, Latin or American, supports the position of the
majority.lvvph1n+
So much for our opinion on the principal question. I note, however, that the
majority decision of Mr. Justice Ostrand argues the facts. I had been told that a
legal ques-tion was to be resolved. But somehow or other, although none of us
have read the record or the briefs in that partic-ular case, it may be a matter
which strengthens his position. And if this is true, and if the argument at least
serves as a smokescreen to obscure the real question, who can object?
The majority decisions also essay to sanctify and deify prescription laws. What
this has to do with the question in issue I do not know. I had thought that the
Supreme Court was a judicial body, but apparently I have miscon-ceived our
functions.
The majority further say that "a strong appeal has been made to our emotions
by describing in rather vivid colors, the disastrous consequences which will
result from the dis-missal of actions," etc., etc. I can find no such plea in any of
the briefs. But the statement brings to mind a point on which I would gladly
comment. What then are the consequences which would result from holding
that section 71 of Act No. 3030 has retrospective effect?
One consequence I have already noted. At least thirty-two cases dismissed, and
the crimes of ninety-one accused condoned. "A clear legislative intent, by a
repeal of the act imposing it, or some other expressed purpose, is re-quired to
take away a penalty or condone a crime by a retroactive law. This is especially
to be guarded against in legislation designed to favor individuals at the
expense of the public." (State vs. Startup [1877], 39 N. J. Law, 423.)
In the next place, such a holding would mean that we would make of Act No.
3030 an ex post facto law, something which is not claimed for it by petitioner,
and a pitfall which the courts invariably avoid. And, lastly, I would recall another

59

well-known principle of statutory construction: "If the language is clear, and the
intent manifest, there is, of course, no room for presumptions. But if, on the
other hand, the language is not clear, and it is obvious that by a particular
construction in a doubtful case great public in-terests would be endangered or
sacrificed, the court ought not to presume that such construction was intended
by the makers of the law. A statute will not be so construed as to work public
mischief, unless required by clear, unequivocal words, especially if the statute
be chiefly to subserve indi-vidual interests." (25 R. C. L., 1027.)
Having, then, in view the disastrous consequences of one holding, as
contrasted with the reasonable consequences of another, I can properly recall
that in every instance in which this court has considered the subject, it has
avoided the condonation of crime. For example, when the United States
Supreme Court in its decision in the Weems case ([1910], 217 U. S., 349), held
article 300 of the Penal Code void, it was incumbent upon the Supreme Court of
the Philippine Islands to apply and construe the 'decision of the higher tribunal.
In the case of United States vs. Pico ([1911], 18 Phil., 386), in which this court
discussed the subject, it was found that according to the official report of the
Director of Prisons there were serving sentences of analogous crimes four
hundred and eighty-five accused, and that should this court be bound thereby
to liberate them, "it * * * would result in a general jail delivery of all those
heretofore convicted of many of the gravest and most heinous offenses defined
and penalized by law; and would be substantially equivalent to a proclamation
of amnesty in favor of all those who have heretofore committed such crimes
and have not yet been brought to trial, or who may commit them hereafter until
such time as the Legislature niay be able to reform the Penal Code." The court
con-tinued: "Confronted as we are with the knowledge that consequences so
far-reaching and disastrous must result from a holding favorable to the
contention of counsel on this motion, it is manifestly our duty rigidly to restrict
the application of the doctrine laid down in the Weems case to cases wherein
the ratio decidendi in that case is clearly applicable and to decline to be bound
by inferences drawn from observations and comments contained in the opinion
in that case which appear to be based upon a mis-apprehension of facts, or
upon assumed facts which do not accord with the facts in the cases brought
before us." (Note also Ong Chang Wing vs. U. S. [1910], 218 U. S., 272.)
Before closing, I would like to disencumber myself of the miscellaneous
authorities which I have discussed, and would again prefer to get back to the
fundamentals of ascertaining and giving effect to legislative intent. On the one
hand, by applying the simple phraseology of section 71, it appears to me that
we effectuate legislative intention and avoid indescribable harm. On the other
hand, if we give to the language of the Legislature an unusual meaning, we
nullify legislative intention and turn away from prison persons who are guilty of
violations of the Election Law.
Not many years ago, the public was edified by executive pardons of criminals
who had violated the Election Law during the elections of 1913 and 1916. A
judicial veto of legislative intent, and judicial legislation now effects a blanket
pardon of persons who audaciously thwarted the people's will during the
elections of 1919.

It is incomprehensible that members of the Philippine Legislature convened for


the avowed purpose of enacting "a more effective Election Law," to use their
own language, and cognizant as many of the members must have been, of
pending cases in the Courts of First Instance and in the Supreme Court,:-that
these same members of the Legisla-ture would insert provisions tantamount to
a legislative pardon of persons who had committed crimes during the elections
in 1919, but whose causes had tardily been brought before the courts. It would,
indeed, be a serious charge against the integrity of the members of the
Philippine Legislature to ascribe to them the purpose of inserting in the new
Election Law a section to effectuate a general jail delivery of convicted
criminals, and the Supreme Court of the Philippine Islands is indeed assuming a
grave re-sponsibility when it distorts legislative language with the result which I
have described. Believing, however, that the Philippine Legislature acted in a
patriotic manner to advance the general public interests, and that no lurking
design hides behind the meaning of its legislative product to advance private
interests, we should enforce the law of an independent branch of the
Government as we find it-as it is our duty to do. Motion granted and case
dismissed.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5221

October 27, 1952

BENITO FERRER Y RODRIGUEZ, petitioner,


vs.
POTENCIANO PECSON, Judge of the Court of First Instance of Manila
and THE PEOPLE OF THE PHILIPPINES, respondents.
Maximo Calalang for petitioner.
Assistant Fiscal Pedro Ma. Sison, Jr. for respondents.
MONTEMAYOR, J.:
On March 1, 1949, the petitioner Benito Ferrer Y Rodriguez was accused before
the municipal court of Manila of serious physical injuries through reckless
imprudence under criminal case No. 10050 of said court. The complaint alleged
that on February 2, 1949, in the City of Manila, petitioner, driver of a jeepney,
operated it along Dapitan Street in a careless, reckless and imprudent manner
as a result of which said jeepney driven by him sideswiped another jeepney
thereby causing a collision, inflicting on a passenger named Avelino Tiu physical
injuries of fracture compound, communited, middle third, humerus left; fracture
compound, communited, neck, radius, left, fracture, simple, middle third,

60

radius, ulna left, which injuries have required and will require medical
attendance for a period of from six (6) to eight (8) months and have prevented
and will prevent the said offended party from engaging in his customary labor
during the same period of time. After trial the Municipal Court of Manila found
him guilty and sentenced him to three (3) months of arresto mayor. Defendant
appealed the case to the Court of First Instance of Manila.
On November 27, 1950, petitioner through counsel filed a motion to dismiss the
case on the ground that the Municipal Court of Manila had no jurisdiction over
the offense and, consequently, the court of first instance had no appellate
jurisdiction. The motion to dismiss was denied by Judge Potenciano Pecson
presiding over the court of first instance, but upon motion for reconsideration,
the same judge in his order of June 6, 1951 (Annex D), granted the motion for
reconsideration and dismiss the case for lack of jurisdiction. On a motion for
reconsideration filed by the Fiscal, Judge Pecson in his order dated August 29,
1951 (Annex E), revoked his order of June 6, 1951 (Annex D) and declared his
first order of December 14, 1950, denying the motion to dismiss as in force.
Counsel for defendant Ferrer asked for a reconsideration of this order and upon
denial of his motion by order of the respondent judge dated October 31, 1951
(Annex I), has filed the present petition for certiorari to revoked the order of
August 29, 1951 (Annex E), and to reinstate the order of June 6, 1951 (Annex
D).
After a careful study of this case, we are inclined to agree with the petitioner.
The jurisdiction of the court to try a criminal case is to be determined by the
law at the time of the institution of the action, (People vs. Pegarum, 58 Phil.,
715). At the time that the complaint in this case was filed on March 1, 1949, in
the Municipal Court of Manila, the law penalizing the act imputed to the
petitioner was the Revised Motor Vehicle Law (Act No. 3932), section 67 of
which provides that if as a result of negligence or reckless or unreasonably fast
driving any accident occurs resulting in death or serious bodily injury to any
person, the one responsible upon conviction shall be punished by imprisonment
for not less than fifteen (15) days nor more than six (6) years in the discretion
of the court.
According to a series of cases decided by this court, among them that
of Eustaquio vs. Liwag (86 Phil., 540) andPeople vs. Moreno (60 Phil., 712), an
act of negligence or reckless or unreasonably fast driving resulting in death or
serious physical injuries to any person, should be prosecuted under section 67
of the Revised Motor Vehicle Law and not under the Revised Penal Code.

clear that the Municipal Court of Manila had no jurisdiction over this case where
a maximum penalty of six (6) years may be imposed; and if it had no original
jurisdiction, the court of first instance presided over by Judge Pecson had
likewise no appellate jurisdiction.
It is true that section 67 of the Revised Motor Vehicle Law (Act No. 3932) was
amended by section 16 of Republic Act No. 587 which went into effect on
January 1, 1951, in the sense that acts of negligence or reckless or
unreasonably fast driving resulting in death or serious bodily injury upon any
person shall be prosecuted and punished under the provisions of the Revised
Penal Code. But this act may not be given retroactive effect so as to confer on
the municipal court jurisdiction which it did not have when it tried and decided
the case against petitioner. It may be true that the provisions of the penal code
are more favorable to the petitioner in this case as regards the penalty, but
when the very accused (herein petitioner) far from invoking the benefits of said
Republic Act No. 587, disregards it and instead, invokes the Revised Motor
Vehicle Law (Act No. 3932) which was in force at the time that the acts imputed
to him were committed, at least for that reason alone the question of
retroactivity cannot and will not be considered.
Respondents contend that under the Judiciary Act of 1948 as well as the
Charter of the City of Manila, the Municipal Court of Manila is given jurisdiction
to try criminal cases of assaults where the intent to kill is not evident from the
evidence, regardless of the penalty attached to the crime. But it is obvious that
acts of negligence in the operation of a motor vehicle which cause a collision
and result in physical injuries can hardly be regarded as assaults without the
intent to kill.
For the foregoing reasons, the petition for certiorari is hereby granted and the
order of respondent judge of June 6, 1951 (Annex D) dismissing the case for
lack of jurisdiction is hereby reinstated. No costs.
Paras C.J., Pablo, Bengzon, Padilla, Jugo, Bautista Angelo and Labrador,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

The criminal jurisdiction of a justice of the peace or a municipal court as


defined in the Judiciary Act of 1948 approved in June 1948, is confined to
offenses in which the penalty is not more than six (6) months. From this it is

G.R. No. L-28774 February 28, 1980

61

DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,


vs.
THE COURT OF APPEALS, HON. HERMOGENES CALUAG, Judge of the
Court of First Instance of Rizal, and SPOUSES HONESTO G. NICANDRO
and ELISA F. NICANDRO, respondents.

ANTONIO, J.:
Petition for certiorari to set aside the decision of the Court of Appeals, 1 dated
February 29, 1968, in Honesto G. Nicandro, et al. v. Development Bank of the
Philippines and People's Homesite and Housing Corporation (CA-G.R. No.
34518-R), affirming the decision of the trial court in Civil Case No. Q-6091.
The facts are summarized as follows:
On March 18, 1955, the Board of Governors of petitioner-appellant DBP
(hereinafter referred to as petitioner or simply DBP for brevity and
convenience), Under its Resolution No. 2004, appropriated the sum of
P1,204,000.00 to purchase land for a housing project for its employees. It was
contemplated that the Bank itself will build houses on the land to be acquired
and these will then be sold to employees who do not yet own homes and who
shall pay for them in monthly installments over a period of twenty (20) years. 2
Pursuant thereto, on October 20, 1955, the DBP bought 91,188.30 square
meters of land, consisting of 159 lots, in the proposed Diliman Estate
Subdivision, West Triangle, Quezon City, of the People's Homesite and Housing
Corporation (PHHC). Of the price of P802,155.56, the DBP paid the amount of
P400,000.00 as down payment. The area sold was then part of a bigger parcel
embraced under TCT No. 1356 and because the subdivision plan for the area
(including the 159 lots sold to the DBP) was still pending approval by the
Bureau of Lands, the sales agreement between the DBP and the PHHC was not
presented immediately for registration by the DBP. Lots 2 and 4, which form
part of said 159 lots, are the properties involved in the instant litigation. 3
In a memorandum to the Auditor General dated December 6, 1955, Mr. Isidro
Buag, the DBP Auditor, expressed his doubts as to whether the DBP could
acquire the property in question for the intended purpose of a housing project
in the light of the then Section 13 of Republic Act No. 85 (Exhibit 12A-DBP).
The Auditor General endorsed the matter to the Office of the President,
Malacaang, Manila, and on July 30, 1957 the Executive Secretary, in turn

referred the question (re legality of the acquisition of the lots in question by the
DBP) to the Secretary of Justice for opinion (Exhibit 13-DBP).
Meanwhile, on June 24, 1957, without the knowledge of the DBP, a portion of
the property covered by the master title, TCT No. 1356, including the 159 lots
sold to the DBP, were segregated therefrom and a separate certificate of title,
TCT No. 36533, was issued for the segregated portion in the name of PHHC.
However, the subdivision plan on which the segregation was based was not
annotated on the master title, TCT No. 1356, nor was the fact that the latter
was cancelled pro tanto by TCT No. 36533 as to the 159 lots (Exhibit 15-DBP).
Atty. Roman Cariaga, Chief of the Sales Division of the PHHC, testified that on or
before September 29, 1958, he was summoned by Benjamin Gray, Secretary to
the Board of Directors of the PHHC, and, while in the latter's room was
introduced to respondent-appellee, Honesto G. Nicandro. Gray then requested
Cariaga to prepare the order of payment for Lots 2 and 4 in favor of Honesto G.
Nicandro. Cariaga informed them (Gray and Nicandro) forthwith that both lots
were part of those already sold to the DBP.
On September 29, 1958, Mr. Sergio Ortiz Luis, a PHHC Director, and, at the
time, Acting Manager of the PHHC, wrote to the Chairman of the DBP that Lots
2 and 4, Block WT-21, had been inadvertently included among the lots sold to
the DBP and for said reason requested that the two lots be excluded from the
sale (Exhibit 1-DBP).
In his reply letter dated October 16, 1958, Chairman Gregorio S. Licaros of the
DBP refused to exclude Lots 2 and 4 as requested, insisting that they form part
of the 159 lots sold to the DBP as shown in the Sales Agreement dated October
20, 1955 and for which DBP has made a partial payment of P400,000.00
(Exhibit 2-DBP). On October 14, 1958, Acting Manager Sergio Ortiz Luis, without
waiting for the reply of DBP Chairman Licaros, approved the order of payment
for Lots 2 and 4, Block WT-21, in favor of appellees Honesto G. Nicandro and
Elisa F. Nicandro who paid the sum of P700.56 and P660.00 as down payment,
representing 10% of the price of the lots.
On October 28, 1958, Mr. Angel G. de la Paz, Chairman of the DBP Housing
Project Committee, also wrote to the Board of Directors of the PHHC, as follows:
In connection with your inquiry whether this bank will proceed
with the purchase of the employees housing project site in tile
West Triangle Subdivision, Quezon City, please be advised that
this Bank will definitely purchase the area allocated to it by
that Corporation.

62

During a convocation held yesterday, at which Mr. G.S. Licaros,


our new Chairman, spoke, this question was brought by
Chairman Licaros that this housing project will go through, to
be financed either by this Bank or by other financial
institutions in case the Secretary of Justice renders an adverse
opinion as to its legality. (Exhibit 3-DBP).
On October 31, 1958, without the knowledge of the DBP, Bernardo Torres, the
General Manager of the PHHC, also approved the Order of Payment for 39 lots
(comprised also in the 159 lots already sold to the DBP) in favor of the so-called
Garcia Group. Among these was an Order of Payment for Lot 2, Block WT-21
(which was already re-awarded to respondent-appellee Honesto G. Nicandro) in
favor of Bernabe G. Garcia, who paid also the 10% down payment of P700.50
(Exhibits 7-DBP and 11-DBP )
On November 3, 1958, the PHHC accepted payment in full of Lots 2 and 4 from
respondents spouses Honesto G. Nicandro and Elisa F. Nicandro (hereinafter
referred to simply as respondent spouses).
On November 6, 1958, Honesto G. Nicandro went to see Atty. Roman Cariaga,
Chief of the Sales Division, PHHC, and demanded that the corresponding deeds
of sale for Lots 2 and 4 be executed in their favor. Atty. Cariaga accompanied
him to the General Manager, Bernardo Torres, and in the presence of Mr.
Nicandro, the former asked Mr. Torres whether the deeds of sale for the two (2)
lots requested by Mr. Nicandro should be prepared considering that the DBP has
not yet relinquished its right thereon. However, the General Manager told him
to go ahead and prepare the deeds of sale.
On November 7, 1958, a deed of sale over Lot 2 in favor of Honesto G. Nicandro
and another deed of sale over Lot 4 in favor of his wife, Elisa F. Nicandro, were
prepared by the Sales Division of the PHHC under Atty. Cariaga.
On November 13, 1958, Mr. Bienvenido C. Olarte Homesite Management Chief,
PHHC, wrote to the General Manager a memorandum which in part reads as
follows:
Respectfully forwarded to the Board of Directors PHHC, Quezon
City, for its information and consideration.
The memorandum was prepared in view of the sale of Lots 2
and 4, Block WT-21 to Honesto and Elisa Nicandro who have
paid in full their purchase prices, and the acceptance from
Gov. Garcia of deposits for 10 lots in Block WT-21, 14 lots in
WT-22, notwithstanding previous sale of all these lots to the

DBP under conditional contract to sell. The DBP made initial


payment of P400,000.00 on the 159 lots in the RFC (DBP) area,
leaving an unpaid balance of P402,155.56. The employees of
the DBP will definitely push through the purchase as confirmed
in the letters of Messrs. Licaros, DBP Chairman and Angel de la
Paz, DBP Housing Project Committee Chairman, both dated
October 16 and 29, 1958, respectively.
The deposits made for the 39 lots are subject to final
arrangement of the purchase of the 159 lots by the DBP
employees. However, as to the sale of Lots 2 and 4, Block WT21, it is recommended that the execution of the final deeds of
sale be suspended until after the aforestated arrangement
shall have been determined (Exhibit 7- DBP. Emphasis
supplied.)
Despite the aforesaid recommendation of Mr. Olarte, the deeds of sale for Lots
2 and 4 in favor of respondent spouses were prepared and submitted to the
board of Directors of the PHHC on December 17, 1958.
Thereafter, the General Manager, Mr. Bernardo Torres, signed the deeds of sale
over Lots 2 and 4 in favor of respondent spouses. Notwithstanding this fact,
however, the originals of said deeds of sale (Exhibits 10-DBP and 10-A-DBP)
were retained at the PHHC and were never released to the respondent spouses.
On January 15, 1959, the Sales Agreement dated October 20, 1955 between
the PHHC and the DBP (covering the 159 lots including Lots 2 and 4 in question)
was presented for registration to the Register of Deeds of Quezon City. It was
entered in the day book and annotated on TCT No. 1356 as a "sale of an
unsegregated portion" with the note "new titles to be issued upon presentation
of the corresponding subdivision plan and technical descriptions duly approved
by the authorities." (Exhibit 15.)
On January 20, 1959, pursuant to the Executive Secretary's reference of the
matter to the Secretary of Justice for an opinion, as mentioned earlier, the latter
issued Opinion No. 16, s. of 1959, holding that
Premises considered, it is our opinion that the RFC (DBP) has
no express or incidental power to undertake the housing
project under consideration and that the same is incongruous
with, if not a clear violation of, the prohibition contained in
Section 13 of Republic Act No. 85. (Annex "A", Complaint.)

63

On February 16, 1959, respondent Honesto G. Nicandro attempted to register


the sale of Lots 2 and 4 in his favor by presenting copies of the deeds of sale in
their favor (as mentioned earlier, the originals were retained by the PHHC and
were never released) before the Register of Deeds of Quezon City, but
registration was denied because: (1) the deeds of sale were only photostatic
copies; (2) the consent of the GSIS (to whom the whole property was
mortgaged) to the sale is not shown therein; and (3) the deeds of sale lacked
the necessary documentary stamps. On the following day, February
17, affidavits of adverse claims on Lots 2 and 4 were filed by the respondents
and these were registered and annotated on TCT No. 36533 (Exhibit 15-DBP).

Meanwhile, prior to the aforesaid decision of this Court, on March 14, 1960, in
reply to the query of the Board of Governors of the DBP whether the Bank can
sell the 159 lots on a cash basis to its employees, the Secretary of Justice
issued Opinion No. 40, holding that the deed of sale covering said lots is not
only ultra vires but is also illegal and void and, for that reason, the DBP cannot
sell the same to its employees even for cash.

On February 17, 1959, on the basis of the afore-mentioned Opinion No. 16, s. of
1959, of the Secretary of Justice, the Office of the President addressed a
memorandum to the Board of Governors of the DBP directing it to revoke
Resolution No. 2004 dated March 18, 1955. 4

No officer or employee of the bank nor any government official


who may exercise executive or supervisory authority over the
said bank either directly, or indirectly, for himself or as
representative or agent of others shall, except when the same
shall be in the form of advances appropriated or set aside by
the Bank itself in order to provide for housing for the benefit of
its officials and employees,borrow money from the Bank, nor
shall become a guarantor, indorser or surety for loans from the
said bank to the others, or in any manner be an obligor for
moneys borrowed from the said Bank. Any such officer or
employee who violates the provisions of this section shall be
immediately removed by competent authority and said officer
or employee shall be punished by imprisonment of not less
than one year nor exceeding five years and by a fine of not
less than one thousand nor more than five thousand pesos.
(Emphasis supplied.) 7

On March 6, 1959, upon teaming that the required subdivision plan of the 159
lots sold to it were already submitted and duly recorded on TCT No. 36533, the
DBP forthwith requested the annotation of its sales agreement dated October
20, 1955 covering the lots in question on TCT No. 36533, and as a
consequence, the Register of Deeds transferred the annotation of said sales
agreement appearing on TCT No. 1356 to the new certificate of title, TCT No.
36533. 5
As the DBP's request for issuance of new certificates of title for Lots 2 and 4
was being opposed by the respondent spouse and unable to decide as to who
should be issued certificates of title for the two lots, the Register of Deeds of
Quezon City referred the matter on consulta to the Land Registration
Commission, where it was docketed as In Re Consulta No. 250. In a resolution
dated July 25, 1959, the Land Registration Commission held that respondent
spouse Honesto G. Nicandro and Elisa F. Nicandro were better entitled to the
issuance of certificates of title for Lots 2 and 4. After its motion for
reconsideration of the resolution was denied, the DBP promptly appealed the
decision to this Court.
On April 29, 1961, resolving DBP's appeal of In Re Consults No. 250, 6 this Court
held that the annotation made on January 15, 1959 of the sales agreement in
favor of the DBP on TCT No. 1356 constituted sufficient registration to bind third
parties, thereby reversing the resolution of the Land Registration Commission of
July 25, 1959, to the effect that the annotation on TCT No. 1356 of the sales
agreement between the PHHC and the vendee DBP did not constitute sufficient
registration to bind innocent third parties (referring to the Nicandros), in favor
of the appellees.

On June 17, 1961, Republic Act No. 3147 was enacted, amending certain
provisions of the DBP Charter (Republic Act No. 85), among which was Section
13 which, as Section 23 in the amended law, now reads as follows:

On November 10, 1961, respondent spouses then filed the case at bar against
the DBP and the PHHC, to rescind the sale of Lots 2 and 4 by PHHC in favor of
DBP, to cancel the transfer certificate of title that may have been issued
covering the two lots to DBP, and to order DBP to pay damages to the plaintiffs.
It was alleged that the acquisition of Lots 2 and 4 by the DBP is not only in
excess of its corporate powers but also a violation of the express prohibition of
Section 13 of its Charter, Republic Act No. 85, as amended. Against the PHHC,
respondent spouses alleged that in the alternative event that the case against
the DBP will not prosper, that PHHC be adjudged to pay to the plaintiff the
"value which the said properties may have on the date of decision ...".
It is important to note that the PHHC alleged as defenses the actuations of the
plaintiffs (Nicandro spouses) which have been characterized by bad faith. thus:
(a) that notwithstanding the information given by the defendant to the plaintiffs
that the question of legality of the acquisition by the DBP of lots has not been

64

resolved, plaintiffs insisted in paying on November 3, 1958, the full purchase


price of the lots in question;
(b) that notwithstanding the understanding between the defendant and the
plaintiffs that no final deed of sale over the lots in question will be executed
until the question of legality of the acquisition of lots by the DBP is resolved,
the plaintiffs insisted in the execution of the final deed of sale to which the
defendant agreed with the understanding that the latter will be given until
about December 12, 1959 to obtain a clearance from the GSIS of the mortgage
on the lots in question, and that, in the meantime, the final deed of sale will not
be presented to the Register of Deeds for registration; and
(c) that without a copy of the final deed of sale being officially released, the
plaintiffs, one way or another, succeeded in obtaining a signed copy of the
aforesaid deed of sale which they presented to the Register of Deeds for
registration in violation of the understanding mentioned in the immediately
preceeding paragraph (b) above.
In its decision, the respondent Court of First Instance of Rizal held that the sale
of Lots 2 and 4, Block WT-21 of the Diliman Estate Subdivision, to the DBP is
null and void, for being in violation of Section 13 of the DBP Charter, ignoring in
toto the other defenses. No provision at all was made for return of the price
that was paid to PHHC for the two lots in question. A motion for reconsideration
having been filed and denied, the DBP appealed said decision to the Court of
Appeals.
On February 29, 1968, the Court of Appeals affirmed the decision of the trial
court.
In their brief, the DBP maintains:
(1) that the Court of Appeals erred in holding that the respondent spouses have
legal personality to question the legality of the sale in question because:
(a) the spouses have no relation to the contracting parties not
to the property itself at the time the transaction took place; 8
(b) the question of whether or not a corporation has acted
without authority or has abused its authority or has acted in
contravention of law cannot be raised by one whose rights
accrued subsequent to the transaction in question; 9

(c) rescission of contract requires mutual restitution. Hence,


since the respondent spouses are neither principally nor
subsidiarily bound under the sales agreement between the
PHHC and the DBP, they are not in a position to make any
restitution on the questioned contract and, consequently, they
have no right to ask for its annulment; 10 and
(d) the respondent spouses, being second vendees of Lots 2
and 4, merely stepped into the shoes of the vendor, PHHC, and
their right to question the transaction cannot rise above that of
the PHHC. Since the contract between the PHHC and the DBP
has been fully executed and the DBP's right thereto has been
perfected by the registration of the sales agreement in its
favor, the PHHC is now in estoppel to question the transaction.
A fortiori the spouses are similarly bound from doing so; and
(2) that when Congress amended Section 13 of its Charter on June 17, 1961,
five (5) years after the questioned transaction, it in effect ratified the DBP
acquisition of said lots from the PHHC, and dispelled whatever doubts existed
as to the power of the DBP to acquire the lots in question, unless some interest
or right which would be adversely affected has accrued in favor of third parties.
On the latter question, the DBP claims that since the Supreme Court itself has
recognized the rights of the DBP over and above those of the respondent
spouses over the two lots, the latter have no interest that will bring it out of the
curative effects of the amendment.
The general rule is that the action for the annulment of contracts can only be
maintained by those who are bound either principally or subsidiarily by virtue
thereof. 11 There is, however, an exception to the rule. This Court, in Teves v.
People's Homesite and Housing Corporation, 12 held that "a person who is not
obliged principally or subsidiarily in a contract may exercise an action for nullity
of the contract if he is prejudiced in his rights with respect to one of the
contracting parties, and can show the detriment which could positively result to
him from the contract in which he had no intervention." We applied this
exception to the rule in Yturralde v. Vagilidad, 13 De Santos v. City of
Manila; 14 and Baez v. Court of Appeals. 15 It cannot be denied that respondent
spouses stand to be prejudiced by reason of their payment in full of the
purchase price for the same lots which had been sold to the petitioner by virtue
of the transaction in question. We, therefore, hold that respondent spouses
have sufficient standing to institute the action in the case at bar.
Since the case may be resolved on the issue of retroactivity of the amendment
of Section 13 of Republic Act No. 85, by Republic Act No. 3147, this Court does
not find it necessary to resolve whether or not the sale to the DBP was void,

65

pursuant to Section 13 of Republic Act No. 85. Even assuming that the DBP had
no authority initially to acquire the lots in question for the housing project of
the corporation for its employees, the important issue is whether or not the
Court of Appeals erred in not granting retroactive effect to Republic Act No.
3147 amending Republic Act No. 85. which authorizes the DBP to provide for
housing for the benefit of its officials and employees. The Court of Appeals, in
effect, held that the amendment "cannot validate the sale of Lots 2 and 4 in
favor of the DBP because the rights of the plaintiffs have already accrued
before its amendment" and section 13 as subsequently amended contains no
express provision of retroactive application. It necessarily follows that such
amended section cannot be given retroactive effect.
It may be stated, as a general rule, that curative statutes are forms of
"retrospective legislation which reach back on past events to correct errors or
irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended." They are intended
to enable persons to carry into effect that which they have designed and
intended, but which has failed of expected legal consequences by reason of
some statutory disability or irregularity in their action. They thus make valid
that which, before enactment of the statute, was invalid. 16 There cannot be any
doubt that one of the purposes of Congress when it enacted Republic Act No.
3147, by amending Section 13 of Republic Act No. 85, was to erase any doubts
regarding the legality of the acquisition by the DBP of the 159 lots from the
PHHC for the housing project which it intended to establish for its employees
who did not yet have houses of their own. This is obvious from the fact that
Republic Act No. 3147 was enacted on July 17, 1961, at a time when the legality
of the acquisition of the lots by the DBP for its housing project was under
question. It is, therefore, a curative statute to render valid the acquisition by
the DBP of the 159 lots from the PHHC. Since such curative statute may not be
given retroactive effect if vested rights are impaired thereby, the next question
then is whether or not the respondent spouses have any vested right on the
property which may be impaired by the statutory amendment. It is admitted in
the partial stipulation of facts that after the second sale of Lots 2 and 4 to
Honesto and Elisa Nicandro on November 7, 1958 by the PHHC, the question
arose as to who between the DBP, which purchased three (3) years earlier the
afore-mentioned lots on October 20, 1955, and the Nicandro spouses were
better entitled to the issuance of the certificates of title for Lots 2 and 4 on the
basis of entries made on the day book and annotations on the old and new
certificates of title covering the lots in question.
In the decision of this Court of April 29, 1961, in Register of Deeds of Quezon
City v. Nicandro, et al., 17 it held that: (a) the deed of sale of October 20, 1955
by the PHHC to the DBP of the 159 lots is "clearly, a registerable document";
and (b) that the annotation of the deed of sale in favor of the DBP on TCT No.
1356 on January 15, 1959 constituted sufficient registration to bind third

parties and, consequently, ordered the Register of Deeds of Quezon City


to issue the corresponding certificate of title in favor of appellant DBP. This
Court further stated:
Neither can it be claimed that the annotation of the deed of
sale in favor of the DBP on TCT No. 1356, under date of
January 15, 1959, does not constitute sufficient registration to
bind third parties.True it may be that when the instrument was
presented to the Register of Deeds for registration, and in fact
it was so inscribed in the day book, the 159 lots subject of the
sale were already covered by separate certificate. of title, TCT
No. 36533. It must be remembered, however, that on said
date, January 15, 1959, TCT No. 1356 which originally covered
the whole tract of land, including the 159 lots, was yet
uncancelled nor any inscription appeared thereon to the effect
that a new certificate was already issued in respect to the said
159 lots. Evidently, when the DBP presented the deed of sale
for registration, there were two subsisting titles covering the
159 lots subject of the sale. As TCT No. 1356, being
uncancelled, did, for all intents and purposes, still cover the
159 lots, the annotation thereon of the sale to the DBP is valid
and effective. For this reason, the Register of Deeds acted
correctly in transferring the inscription from TCT No. 1356 to
TCT No. 36533 upon discovery that the subdivision plan had
already been approved, submitted and annotated, and a new
certificate of title issued. Even on this score alone, considering
that the adverse claim of the Nicandros was annotated on TCT
No. 35633 only on February 17, 1959, whereas the sale to the
DBP was registered as of January 15, 1959, the certificate of
title on the two lots in controversy should be issued in favor of
the first registrant, the DBP.
There is, however, another reason why the Commissioner's
ruling must be set aside.
Although admittedly we have here a case of double sale,
actually this is not an instance of double registration. As above
stated, only the deed of sale in favor of appellant was
inscribed on the certificate of title covering the lots in
question. The Nicandros were not able to register their deeds
of sale; instead, informed of the prior registration by the DBP,
they sought to protect their right by filing adverse claims
based on the said deeds of sale under Section 110 of Act 496,
which provides:

66

SEC. 110. Whoever claims any right or


interest in registered land adverse to the
registered owner, arising subsequent to the
date of the original registration, may, if no
other provision is made in this Act for
registering the same, make a statement in
writing setting forth fully his alleged right or
interest, and how or under whom acquired,
and a reference to the volume and page of
the certificate of title of the registered owner,
and a description of the land in which the
right or interest is claimed. ...
It is clear from the above quotation that for this special
remedy (adverse claim) to be availed of, it must be shown that
there is no other provision in the law for registration of the
claimant's alleged right or interest in the property. The herein
claim of the Nicandros is based on a perfected contract of sale
executed in their favor by the lawful owner of the land.
Considering that the Land Registration Act specifically
prescribes the procedure for registration of a vendee's right on
a registered property, (Section 57, Act 496) the remedy
provided in Section 110, which was resorted to and invoked by
appellees, would be ineffective for the purpose of protecting
their said right or interest on the two lots.
WHEREFORE, the Resolution appealed from is hereby set
aside, and the Register of Deeds of Quezon City ordered to
issue the corresponding certificate of title in favor of appellant
DBP. Without costs. So ordered. (At pp. 1341-1342. Emphasis
supplied.)
There is evidence to the effect that prior to or during the preparation of the
corresponding deeds of sale for lots 2 and 4 in their favor, the private
respondents knew of the previous acquisition of said property by the DBP.
Sometime in September 1958, the Chief of the Sales Division of the PHHC
informed Honesto G. Nicandro. that Lots 2 and 4 were part of the 159 lots
previously sold by the PHHC to the DBP, On November 6, 1958, when Nicandro.
asked that the corresponding deeds of sale over Lots 2 and 4 be prepared, the
same Chief of the Sales Division expressed his misgivings by telling the General
Manager of the PHHC, in the presence of Nicandro, that the two lots that the
Nicandros wanted to buy had already been sold to the DBP and the latter had
not yet relinquished its right over said property. 18 In any event, the Nicandros
were not able to register their deeds of sale over Lots 2 and 4. Before the
registration of a deed or instrument, a registered property is not bound thereby

insofar as third persons are concerned. Registration is the means whereby the
property is made subject to the terms of the instrument. It is the operative act
that gives validity to the transfer or creates a lien upon the land. 19 In Register
of Deeds of Quezon City v. Nicandro, supra, this Court held that the registration
of the sales agreement between the PHHC and the DBP and the annotation
thereof on the old TCT No. 1365 constituted a prior valid registration of its
rights to the properties sold.
Under such circumstances, since under the Torrens system, registration is the
operative act that gives validity to the transfer, 20 and it was the sale to the
DBP that was registered and transfer certificate of title issued to the DBP,
private respondents could not have, therefore, acquired any complete, absolute
and unconditional right over the property. They had no vested rights on the
property at the time of the enactment of Republic Act No. 3147. A "vested right
is one which is absolute, complete, and unconditional, to the exercise of which
no obstacle exists, and which is immediate and perfect in itself and not
dependent upon a contingency," 21 To be vested in its accurate legal sense, a
right must be complete and consummated, and one of which the person to
whom it belongs cannot be divested without his consent. 22
During the pendency of this case, the People's Homesite and Housing
Corporation (PHHC) has been dissolved and its powers, functions, balance of
appropriations, records, assets, rights and choses in action, subject to certain
conditions, were transferred to the National Housing Authority. 23 Considering
that this case has been pending in the courts since 1961, and the constitutional
right of the parties to a speedy disposition of their case, the Court hereby
renders judgment herein, without awaiting the substitution of the PHHC by the
National Housing Authority.
WHEREFORE, in view hereof judgment is hereby rendered: (1) reversing the
judgment of the Court of Appeals in CA-G.R. No. 34518-R, dated February 29,
1968, and dismissing the complaint filed by the respondent spouses for
rescision of the sale"; and (2) ordering the Development Bank of the Philippines
to reimburse to the Nicandro spouses the payments which they made to the
PHHC in connection with said lots, with interest at the legal rate from November
6, 1958 until fully paid, which amount shall be deducted from the balance of
the purchase price of the property. No special pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

67

THIRD DIVISION
G.R. No. 138137

March 8, 2001

PERLA S. ZULUETA, petitioner,


vs.
ASIA BREWERY, INC., respondent.
PANGANIBAN, J.:
When two or more cases involve the same parties and affect closely related
subject matters, they must be consolidated and jointly tried, in order to serve
the best interests of the parties and to settle expeditiously the issues involved.
Consolidation, when appropriate, also contributes to the declogging of court
dockets.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, questioning the August 4, 1998 Decision 1 of the Court of Appeals (CA) in
CA-GR SP No. 45020; as well as the February 23, 1999 Resolution 2 denying
petitioner's Motion for Reconsideration. The decretal portion of the CA Decision
reads as follows:
"WHEREFORE, the instant petition is given due course. The assailed
orders of the Regional Trial Court, Makati City, Branch 142 dated 13
February 1997 and 19 May 1997 are hereby ANNULED and SET ASIDE.
SO ORDERED."
The Facts
Respondent Asia Brewery, Inc., is engaged in the manufacture, the distribution
and sale of beer; while Petitioner Perla Zulueta is a dealer and an operator of an
outlet selling the former's beer products. A Dealership Agreement governed
their contractual relations.
On March 30, 1992, petitioner filed before the Regional Trial Court (RTC) of
Iloilo, Branch 22, a Complaint against respondent for Breach of Contract,
Specific Performance and Damages. The Complaint, docketed as Civil Case No.
20341 (hereafter referred to as the "Iloilo case"), was grounded on the alleged
violation of the Dealership Agreement.

On July 7, 1994, during the pendency of the Iloilo case, respondent filed with
the Makati Regional Trial Court, Branch 66, a Complaint docketed as Civil Case
No. 94-2110 (hereafter referred to as the "Makati case"). The Complaint was for
the collection of a sum of money in the amount of P463,107.75 representing
the value of beer products, which respondent had delivered to petitioner.
In view of the pendency of the Iloilo case, petitioner moved to dismiss the
Makati case on the ground that it had split the cause of action and violated the
rule against the multiplicity of suits. The Motion was denied by the Makati RTC
through Judge Eriberto U. Rosario.
Upon petitioner's Motion, however, Judge Rosario inhibited himself. The case
was raffled again and thereafter assigned to Branch 142 of the Makati RTC,
presided by Judge Jose Parentala Jr.
On January 3, 1997, petitioner moved for the consolidation of the Makati case
with the Iloilo case. Granting the Motion, Judge Parentala ordered on February
13, 1997, the consolidation of the two cases. Respondent filed a Motion for
Reconsideration, which was denied in an Order dated May 19, 1997.
On August 18, 1997, respondent filed before the Court of Appeals a Petition for
Certiorari assailing Judge Parentala's February 13, 1997 and May 19, 1997
Orders.
Ruling of the Court of Appeals
Setting aside the trial court's assailed Orders which consolidated the Iloilo and
the Makati cases, the CA ruled in this wise:
"There is no common issue of law or fact between the two cases. The
issue in Civil Case No. 94-2110 is private respondent's indebtedness for
unpaid beer products; while in Civil Case No. 20341, it is whether or
not petitioner (therein defendant) breached its dealership contract with
private respondent.
"Private respondent in her complaint aforequoted attempts to project a
commonality between the two civil cases, but it cannot be denied that
her obligation to pay for the beer deliveries can exist regardless of any
"stop payment" order she made with regard to the checks. Thus, the
rationale for consolidation, which is to avoid the possibility of
conflicting decisions being rendered, (Active Wood products, Co. vs.
Court of Appeals, 181 SCRA 774, Benguet Corporation, Inc. vs. Court of

68

Appeals, 165 SCRA 27; Vallacar Transit, Inc. vs. Yap, 126 SCRA 503)
does not exist."3
Hence, this Petition.4

until July 22, 1997, within which to file the Petition for Certiorari. It did so,
however, only on August 21, 1997.
On the other hand, respondent insists that its Petition was filed on time,
because the reglementary period before the effectivity of the 1997 Rules was
ninety days. It theorizes that the sixty-day period under the 1997 Rules does
not apply.

The Issues
In her Memorandum,5 petitioner interposes the following issues for the
consideration of this Court:
"a. Were the Orders of February 13, 1997 and May 19, 1997 of the
Regional Trial Court, Branch 142 in Makati City (ordering consolidation
of Makati Civil Case No. 94-2110 with the Iloilo Civil Case No. 20341)
already final and executory when respondent filed its petition for
certiorari with the Hon. Court of Appeals such that said Court could no
longer acquire jurisdiction over the case and should have dismissed it
outright (as it originally did) x x x, instead of due giving course to the
petition?; and
"b. Independent of the first issue, did the Makati RTC, Branch 142,
correctly order the consolidation of the Makati case (which was filed
later) with the Iloilo Case (which was filed earlier) for the reason that
the obligation sought to be collected in the Makati case is the same
obligation that is also one of the subject matters of the Iloilo case, x x
x?"6
The Court's Ruling
The Petition is meritorious.
First Issue:
Propriety of Petition with the CA
Petitioner avers that the Makati RTC's February 13, 1997 and May 19, 1997
Orders consolidating the two cases could no longer be assailed. Allegedly,
respondent's Petition for Certiorari was filed with the CA beyond the
reglementary sixty-day period prescribed in the 1997 Revised Rules of Civil
Procedure, which took effect on July 1, 1997. Hence, the CA should have
dismissed it outright.
The records show that respondent received on May 23, 1997, the Order denying
its Motion for Reconsideration. It had, according to petitioner, only sixty days or

As a general rule, laws have no retroactive effect. But there are certain
recognized exceptions, such as when they are remedial or procedural in nature.
This Court explained this exception in the following language:
"It is true that under the Civil Code of the Philippines, "(l)aws shall have
no retroactive effect, unless the contrary is provided. But there are
settled exceptions to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
xxx

xxx

xxx

"On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the
remedy or confirmation of such rights, ordinarily do not come within
the legal meaning of a retrospective law, nor within the general rule
against the retrospective operation of statutes."7 (emphasis supplied)
Thus, procedural laws may operate retroactively as to pending proceedings
even without express provision to that effect. 8 Accordingly, rules of procedure
can apply to cases pending at the time of their enactment. 9 In fact, statutes
regulating the procedure of the courts will be applied on actions undetermined
at the time of their effectivity. Procedural laws are retrospective in that sense
and to that extent.10
Clearly, the designation of a specific period of sixty days for the filing of an
original action for certiorari under Rule 65 is purely remedial or procedural in
nature. It does not alter or modify any substantive right of respondent,
particularly with respect to the filing of petitions for certiorari. Although the
period for filing the same may have been effectively shortened, respondent had
not been unduly prejudiced thereby considering that he was not at all deprived
of that right.
It is a well-established doctrine that rules of procedure may be modified at any
time to become effective at once, so long as the change does not affect vested

69

rights.11 Moreover, it is equally axiomatic that there are no vested rights to


rules of procedure.12

in the best position to know and to certify if an action for expropriation had
already been filed and pending with the courts."

It also bears noting that the ninety-day limit established by jurisprudence


cannot be deemed a vested right. It is merely a discretionary prerogative of the
courts that may be exercised depending on the peculiar circumstances of each
case. Hence, respondent was not entitled, as a matter of right, to the 90-day
period for filing a petition for certiorari; neither can it imperiously demand that
the same period be extended to it.

Verily, the signatory in the Certification of the Petition before the CA should not
have been respondent's retained counsel, who would not know whether there
were other similar cases of the corporation.16 Otherwise, this requirement would
easily be circumvented by the signature of every counsel representing
corporate parties.

Upon the effectivity of the 1997 Revised Rules of Civil Procedure on July 1,
1997, respondent's lawyers still had 21 days or until July 22, 1997 to file a
petition for certiorari and to comply with the sixty-day reglementary period.
Had they been more prudent and circumspect in regard to the implications of
these procedural changes, respondent's right of action would not have been
foreclosed. After all, the 1997 amendments to the Rules of Court were wellpublicized prior to their date of effectivity. At the very least counsel should have
asked for as extension of time to file the petition.
Certification of Non-forum
Shopping Defective
Petitioner likewise assails the validity of the sworn certification against forumshopping, arguing that the same was signed by counsel and not by petitioner
as required by Supreme Court Circular No. 28-91. For his part, respondent
claims that even if it was its counsel who signed the certification, there was still
substantial compliance with Circular No. 28-91 because, a corporation acts
through its authorized officers or agents, and its counsel is an agent having
personal knowledge of other pending cases.
The requirement that the petitioner should sign the certificate of non-forum
shopping applies even to corporations, considering that the mandatory
directives of the Circular and the Rules of Court make no distinction between
natural and juridical persons. In this case, the Certification should have been
signed "by a duly authorized director or officer of the corporation," 13 who has
knowledge of the matter being certified. 14 In Robern Development Corporation
v. Quitain,15 in which the Certification was signed by Atty. Nemesio S. Caete
who was the acting regional legal counsel of the National Power Corporation in
Mindanao, the Court held that "he was not merely a retained lawyer, but an
NPC in-house counsel and officer, whose basic function was to prepare legal
pleadings and to represent NPC-Mindanao in legal cases. As regional legal
counsel for the Mindanao area, he was the officer who was in the best position
to verify the truthfulness and the correctness of the allegations in the
Complaint for expropriation in Davao City. As internal legal counsel, he was also

No Explanation for
Non-Filing by Personal Service
Citing Section 11 of Rule 13 of the 1997 Rules, petitioner also faults respondent
for the absence of a written explanation why the Petition with the Court of
Appeals was served on her counsel by registered mail. In reply, respondent
points out that such explanation was not necessary, because its counsel held
office in Makati City while petitioner and her counsel were in Iloilo City.
We agree with petitioner. Under Section 11, Rule 13 of the 1997 Rules, personal
service of petitions and other pleadings is the general rule, while a resort to
other modes of service and filing is the exception. Where recourse is made to
the exception, a written explanation why the service and the filing were not
done personally is indispensable, even when such explanation by its nature is
acceptable and manifest. Where no explanation is offered to justify the resort
to other modes, the discretionary power of the court to expunge the pleading
becomes mandatory.17 Thus, the CA should have considered the Petition as not
having been filed, in view of the failure of respondent to present a written
explanation of its failure to effect personal service.
In sum, the Petition for Certiorari filed with the CA by herein respondent,
questioning the orders of consolidation by the Makati RTC, should not have
been given due course. Not only was the Petition filed beyond the sixty-day
reglementary period; it likewise failed to observe the requirements of nonforum shopping and personal service or filing. All or any of these acts ought to
have been sufficient cause for its outright denial.
Second Issue:
Propriety of Consolidation
Apart from procedural problems, respondent's cause is also afflicted with
substantial defects. The CA ruled that there was no common issue in law or in
fact between the Makati case and the Iloilo case. The former involved
petitioner's indebtedness to respondent for unpaid beer products, while the

70

latter pertained to an alleged breach of the Dealership Agreement between the


parties. We disagree.
G.R. No. 95229 June 9, 1992
True, petitioner's obligation to pay for the beer products delivered by
respondent can exist regardless of an alleged breach in the Dealership
Agreement. Undeniably, however, this obligation and the relationship between
respondent and petitioner, as supplier and distributor respectively, arose from
the Dealership Agreement which is now the subject of inquiry in the Iloilo case.
In fact, petitioner herself claims that her obligation to pay was negated by
respondent's contractual breach. In other words, the non-payment -- the res of
the Makati case -- is an incident of the Iloilo case.
Inasmuch as the binding force of the Dealership Agreement was put in
question, it would be more practical and convenient to submit to the Iloilo court
all the incidents and their consequences. The issues in both civil cases pertain
to the respective obligations of the same parties under the Dealership
Agreement. Thus, every transaction as well as liability arising from it must be
resolved in the judicial forum where it is put in issue. The consolidation of the
two cases then becomes imperative to a complete, comprehensive and
consistent determination of all these related issues.
Two cases involving the same parties and affecting closely related subject
matters must be ordered consolidated and jointly tried in court, where the
earlier case was filed.18 The consolidation of cases is proper when they involve
the resolution of common questions of law or facts. 19
Indeed, upon the consolidation of the cases, the interests of both parties in the
two civil cases will best be served and the issues involved therein expeditiously
settled. After all, there is no question on the propriety of the venue in the Iloilo
case.
WHEREFORE, the Petition is hereby GRANTED and the assailed Decision
REVERSED and SET ASIDE. The Orders of the Makati RTC (Br. 142) dated
February 13, 1997 and May 19, 1997 are hereby REINSTATED. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

CORITO OCAMPO TAYAG, petitioner,


vs.
HON. COURT OF APPEALS and EMILIE DAYRIT CUYUGAN, respondent.

REGALADO, J.:
The instant petition seeks to reverse and set aside the decision 1 of respondent
Court of Appeals in CA-G.R. SP No. 20222, entitled "Corito Ocampo Tayag vs.
Hon. Norberto C. Ponce, Judge, Regional Trial Court of San Fernando, Pampanga
and Emilde Dayrit Cuyugan," promulgated on May 10, 1990, and its resolution
denying petitioner's motion for reconsideration. 2 Said decision, now before us
for review, dismissed petitioner's Petition for Certiorari and Prohibition with
Preliminary Injunction on the ground that the denial of the motion to dismiss
Civil Case No. 7938 of the court a quo is an interlocutory order and cannot be
the subject of the said special civil action, ordinary appeal in due time being
petitioner's remedy.
In said Civil Case No, 7938, herein private respondent, in her capacity as
mother and legal guardian of minor Chad D. Cuyugan, filed on April 9, 1987 a
complaint denominated "Claim for Inheritance" against herein petitioner as the
administratrix of the estate of the late Atty. Ricardo Ocampo. The operative
allegations in said complaint are as follows:
xxx xxx xxx
2. Plaintiff is the mother and legal guardian of her minor son,
Chad Cuyugan, by the father of the defendant, the late Atty.
Ricardo Ocampo; and the defendant is the known
administratrix of the real and personal properties left by her
deceased father, said Atty. Ocampo, who died intestate in
Angeles City on September 28, 1983;
3. Plaintiff has been estranged from her husband, Jose
Cuyugan, for several years now and during which time,
plaintiff and Atty. Ricardo Ocampo had illicit amorous
relationship with each other that, as a consequence thereof,
they begot a child who was christened Chad Cuyugan in

71

accordance with the ardent desire and behest of said Atty.


Ocampo;

City, Angeles City and in the Province of Pampanga with


approximate value of several millions of pesos;

4. Chad, the son of plaintiff by the late Atty. Ricardo Ocampo,


who was born in Angeles City on October 5, 1980 bad been
sired, showered with exceptional affection, fervent love and
care by his putative father for being his only son as can be
gleaned from indubitable letters and documents of the late
Atty. Ocampo to herein plaintiff, excerpts from some of which
are hereunder reproduced;

7. The estate of the late Atty. Ocampo has not as yet been
inventoried by the defendant and the inheritance of the
surviving heirs including that of said Chad has not likewise
been ascertained;

. . . Keep good keep faith keep Chad and


yourself for me alone and for me all the time.
As I have now I shall save my heart to you
and to Chad.
. . . Please take good care and pray to Sto.
Nio for our sake and for the child sake.

8. The only known surviving heirs of the deceased Atty.


Ricardo Ocampo are his children, namely: Corito O. Tayag,
Rivina O. Tayag, Evita O. Florendo, Felina Ocampo, and said
minor Chad, for and in whose behalf this instant complaint is
filed;
9. Plaintiff has no means of livelihood and she only depends on
the charity of friends and relatives for the sustenance of her
son, Chad, such that it is urgent, necessary and imperative
that said child be extended financial support from the estate of
his putative father, Atty. Ricardo Ocampo;

. . . Keep him. Take good care of him.


. . . I'm proud that you are his mother. . . I'm
proud of him and you. Let me bless him by
my name and let me entitle him to all what I
am and what I've got.
. . . I have vowed to recognize him and be my
heir.
. . . How is CHAD and you . . .
. . . Why should we not start now to own him,
jointly against the whole world. After all we
love each other and CHAD is the product of
our love.
5. The minor, Chad D. Cuyugan, although illegitimate is
nevertheless entitled to a share in the intestate estate left by
his deceased father, Atty. Ricardo Ocampo as one of the
surviving heirs;

10. Several demands, verbal and written, have been made for
defendant to grant Chad's lawful inheritance, but despite said
demands, defendant failed and refused and still fails and
refused and still fails and refuses to satisfy the claim for
inheritance against the estate of the late Atty. Ocampo; 3
xxx xxx xxx
Plaintiff thereafter prays, among others, that judgment be rendered ordering
defendant to render an inventory and accounting of the real and personal
properties left by Atty. Ricardo Ocampo; to determine and deliver the share of
the minor child Chad in the estate of the deceased; and to give him
support pendente lite.
Petitioner, as defendant therein, filed her answer with counterclaim on June 3,
1987, disputing the material allegations in the complaint. She maintained by
way of affirmative defenses, inter alia, that the complaint states no cause of
action; that the action is premature; that the suit as barred by prescription; that
respondent Cuyugan has no legal and judicial personality to bring the suit; that
the lower court was no jurisdiction over the nature of the action; and that there
is improper joinder of causes of action. 4

6. The deceased Atty. Ricardo Ocampo, at the time of his death


was the owner of real and personal property, located in Baguio

72

After the hearing of the motion to dismiss on the grounds asserted as


affirmative defenses, the trial court issued the following order on October 20,
1987:

then recognition. To go about the step by step procedure


outlined by the defendant by filing one action after another is
definitely violative of the prohibition against splitting a cause
of action.

xxx xxx xxx


The Court is of the considered opinion that there is a need of
further proceedings to adduce evidence on the various claims
of the parties so as to hear their respective sides
WHEREFORE, resolution on the preliminary hearing which
partakes of the nature of a motion to dismiss requiring
additional evidence is in the meantime held in abeyance. The
Motion to Dismiss is hereby denied and the case as set for pretrial . . . 5

No. 3. It is not the plaintiff that is now bringing the case before
the Court. It is (her) spurious child that she represents as
natural guardian that is instituting the action.
No. 4. Prescription has not set in if we consider that a spurious
child may file an action for recognition within four years from
his attainment of majority (New Civil Code. Art, 285, No. 2).
Whether the letters of the putative father, Atty. Ocampo, is
evidence, that should be inquired into in a hearing on the
merits.

With the denial of her motion for reconsideration of said order on November 19,
1987, 6 petitioner filed on December 10, 1987 a petition for certiorari and
prohibition before the Court of Appeals, docketed therein as CA-G.R. SP No.
13464, which was granted by the Sixth Division of respondent court on August
2, 1989 and enjoined respondent judge to resolve petitioner's motion praying
for the dismissal of the complaint based on the affirmative defenses within ten
(10) days from notice thereof. 7

No. 5. Several causes of action may be joined in one complaint


as was done in this case. The defendant's claim that there was
a misjoinder is untenable.

In compliance with said decision of respondent court, the trial court acted on
and thereafter denied the motion to dismiss, which had been pleaded in the
affirmative defenses in Civil Case No. 7938, in an order dated October 24, 1989,
resolving the said motion in the following manner:

The nature of the case "CLAIM FOR INHERITANCE" does not


control the body of the complaint.

xxx xxx xxx


The Court now resolves:
No. 1. The complaint sufficiently shows that a cause of action
exists in favor of the plaintiff. A cause of action being the
"primary right to redress a wrong" (Marquez vs. Valera, 48 OG
5272), which apparently on the face of the complaint, plaintiff
has a right to enforce through this case. Defendant's
protestation that there is no sufficient cause of action is
therefore untenable.
No. 2. The present action. despite the claim of defendant is not
premature. It is exactly filed in order to prove filiation, and

No. 6. The Court being a court of general jurisdiction, and of


special jurisdiction, such as a probate court has capacity to
entertain a complaint such as the one now before it.

From all the foregoing, the Court finds that the complaint is
sufficient' in form and substance and, therefore, the motion to
dismiss could not be granted until after trial on the merits in
which it should be shown that the allegations of the complaint
are unfounded or a special defense to the action exists.
WHEREFORE, the Motion to Dismiss is hereby DENIED. 8
Petitioner's motion for reconsideration of said order was denied by the trial
court on January 30, 1990. 9 As a consequence, another petition
for certiorari and prohibition with preliminary injunction was filed by petitioner
on March 12, 1990 with respondent court, docketed as CA-G.R. SP No. 20222,
praying that the orders dated October 24, 1989 and January 30, 1990 of the
trial court be annulled and set aside for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.

73

On May 10, 1990, as earlier stated, respondent court promulgated its decision
dismissing the petition, and likewise denied petitioner's motion for
reconsideration in a resolution dated September 5, 1990, hence the present
petition for review on certiorari.
In elevating the case before us, petitioner relies on these grounds:
a. The Honorable Respondent Court of Appeals dismissed
Petitioner's Petition for Certiorari and Prohibition in UTTER
DISREGARD OF APPLICABLE DECISIONS OF THIS HONORABLE
COURT providing clear exceptions to the general rule that
interlocutory orders may not be elevated by way of the special
civil action of certiorari;
b. Respondent Court refused to resolve certain issues raised by
Petitioner before the Regional Trial Court and before
Respondent Court of Appeals involving QUESTIONS OF
SUBSTANCE not theretofore determined by this Honorable
Court, such as the interpretation and application of Art. 281 of
the Civil Code requiring judicial approval when the recognition
of an illegitimate minor child does not take place in a record of
birth or in a will: of Art. 175, Par. 2, in relation to Art. 172, Par.
2 of the Family Code, providing for the prescriptive period with
respect to the action to establish illegitimate filiation; and of
Art. 285 of the Civil Code, providing for the prescriptive period
with respect to the action for recognition of a natural child; and
c. Respondent Court has sanctioned a DEPARTURE by the
Regional Trial Court from the accepted and usual course of
judicial proceedings. 10
Petitioner contends that the action to claim for inheritance filed by herein
private respondent in behalf of the minor child, Chad Cuyugan, is premature
and the complaint states no cause of action, she submits that the recognition of
the minor child, either voluntarily or by judicial action, by the alleged putative
father must first be established before the former can invoke his right to
succeed and participate in the estate of the latter. Petitioner asseverates that
since there is no allegation of such recognition in the complaint denominated as
"Claim for Inheritance," then there exists no basis for private respondent's
aforesaid claim and, consequently, the complaint should be dismissed.
The instant case is similar to the case of Paulino vs. Paulino, et al., 11 wherein
the petitioner, as plaintiff, brought an action against the private respondents,
as defendants, to compel them to give her share of inheritance in the estate of

the late Marcos Paulino, claiming and alleging, inter alia, that she is the
illegitimate child of the deceased; that no proceedings for the settlement of the
deceased's estate had been commenced in court; and that the defendants had
refused and failed to deliver her share in the estate of the deceased. She
accordingly prayed that the defendants therein be ordered to deliver her
aforesaid share. The defendants moved for the dismissal of her complaint on
the ground that it states no cause of action and that, even if it does, the same
is barred by prescription.
The only difference between the aforecited case and the case at bar is that at
the time of the filing of the complaint therein, the petitioner in that case had
already reached the age of majority, whereas the claimant in the present case
is still a minor. In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed parent, must
prove his filiation to the latter. We also said that it is necessary to allege in the
complaint that the putative father had acknowledged and recognized the
illegitimate child because such acknowledgment is essential to and is the basis
of the right to inherit. There being no allegation of such acknowledgment, the
action becomes one to compel recognition which cannot be brought after the
death of the putative father. The ratio decidendi in Paulino, therefore, is not the
absence of a cause of action for failure of the petitioner to allege the fact of
acknowledgment in the complaint, but the prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner
contends that the complaint filed by herein private respondent merely alleges
that the minor Chad Cuyugan is an illegitimate child of the deceased and is
actually a claim for inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further that the two causes of action,
one to compel recognition and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence.
As early as 1922, we had occasion to rule thereon in Briz vs. Briz, et
al., 12 wherein we said:
The question whether a person in the position of the present
plaintiff can any event maintain a complex action to compel
recognition as a natural child and at the same time to obtain
ulterior relief in the character of heir, is one which, in the
opinion of this court must be answered in the affirmative,
provided always that the conditions justifying the joinder of the
two distinct causes of action are present in the particular case.
In, other words, there is no absolute necessity requiring that
the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to

74

the action in which that same plaintiff seers additional relief in


the character of heir. Certainly, there is nothing so peculiar to
the action to compel acknowledgment as to require that a rule
should be here applied different from that generally applicable
in other cases. . .
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent
supported by our prior decisions. Thus, we have held in
numerous cases, and the doctrine must be considered well
settled, that a natural child having a right to compel
acknowledgment, but who has not been in fact legally
acknowledged, may maintain partition proceedings for the
division of the inheritance against his co-heirs . . .; and the
same person may intervene in proceedings for the distribution
of the estate of his deceased natural father, or mother . . . In
neither of these situations has it been thought necessary for
the
plaintiff
to
show
a
prior
decree
compelling
acknowledgment. The obvious reason is that in partition suits
and distribution proceedings the other persons who might take
by inheritance are before the court; and the declaration of
heirship is appropriate to such proceedings.
The next question to be resolved is whether the action to compel recognition
has prescribed.
Petitioner argues that assuming arguendo that the action is one to compel
recognition, private respondent's cause of action has prescribed for the reason
that since filiation is sought to be proved by means of a private handwritten
instrument signed by the parent concerned, then under paragraph 2, Article
175 of the Family Code, the action to establish filiation of the illegitimate minor
child must be brought during the lifetime of the alleged putative father. In the
case at bar, considering that the complaint was filed after the death of the
alleged parent, the action has prescribed and this is another ground for the
dismissal of the complaint. Petitioner theorizes that Article 285 of the Civil Code
is not applicable to the case at bar and, instead, paragraph 2, Article 175 of the
Family Code should be given retroactive effect. The theory is premised on the
supposition that the latter provision of law being merely procedural in nature,
no vested rights are created, hence it can be made to apply retroactively.
Article 285 of the Civil Code provides:

Art. 285. The action for the recognition of natural children may
be brought only during the lifetime of the presumed parents,
except in the following cases:
(1) If the father or mother died during the minority of the child,
in which case the latter may file the action before the
expiration of four years from the attainment of his majority;
xxx xxx xxx
On the other hand, Article 175 of the Family Code reads:
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent.
Under the last-quoted provision of law, therefore, if the action is based on the
record of birth of the child, a final judgment, or an admission by the parent of
the child's filiation in a public document or in a private handwritten signed
instrument, then the action may be brought during the lifetime of the child.
However, if the action is based on the open and continuous possession by the
child of the status of an illegitimate child, or on other evidence allowed by the
Rules of Court and special laws, the view has been expressed that the action
must be brought during the lifetime of the alleged parent. 13
Petitioner submits that Article 175 of the Family Code applies in which case the
complaint should have been filed during the lifetime of the putative father,
failing which the same must be dismissed on the ground of prescription. Private
respondent, however, insists that Article 285 of the Civil Code is controlling
and, since the alleged parent died during the minority of the child, the action
for filiation may be filed within four years from the attainment of majority of the
minor child.
Article 256 of the Family Code states that "[t]his Code shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." It becomes essential, therefore,
to determine whether the right of the minor child to file an action for
recognition is a vested right or not.

75

Under the circumstances obtaining in the case at bar, we hold that the right of
action of the minor child bas been vested by the filing of the complaint in court
under the regime of the Civil Code and prior to the effectivity of the Family
Code. 14 We herein adopt our ruling in the recent case of Republic of the
Philippines vs. Court of Appeals, et al. 15where we held that the fact of filing of
the petition already vested in the petitioner her right to file it and to have the
same proceed to final adjudication in accordance with the law in force at the
time, and such right can no longer be prejudiced or impaired by the enactment
of a new law.
Even assuming ex gratia argumenti that the provision of the Family Code in
question is procedural in nature, the rule that a statutory change in matters of
procedure may affect pending actions and proceedings, unless the language of
the act excludes them from its operation, is not so pervasive that it may be
used to validate or invalidate proceedings taken before it goes into effective,
since procedure must be governed by the law regulating it at the time the
question of procedure arises especially where vested rights may be prejudiced.
Accordingly, Article 175 of the Family Code finds no proper application to the
instant case since it will ineluctably affect adversely a right of private
respondent and, consequentially, of the mind child she represents, both of
which have been vested with the filing of the complaint in court. The trial court
is therefore, correct in applying the provisions of Article 285 of the Civil Code
and in holding that private respondent's cause of action has not yet prescribed.
Finally, we conform with the holding of the Court of Appeals that the questioned
order of the court below denying the motion to dismiss is interlocutory and
cannot be the subject of a petition for certiorari. The exceptions to this rule
invoked by petitioner and allegedly obtaining in the case at bar, are obviously
not present and may not be relied upon.

[G.R. No. 123755. June 28, 1996]


RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.

DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes
in three successive elections but who was twice declared by this Court to be
disqualified to hold such office due to his alien citizenship, and who now claims
to have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that
the votes cast in favor of Frivaldo should be considered void; that the electorate
should be deemed to have intentionally thrown away their ballots; and
that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted
directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the ineligibility of
Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections,
and upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755.

WHEREFORE, the petition at bar is DENIED and the assailed decision and
resolution of respondent Court of Appeals are hereby AFFIRMED in toto.
SO ORDERED.
EN BANC

This is a special civil action under Rules 65 and 58 of the Rules of Court for
certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division, 1 promulgated
on December
19,19952 and
another
Resolution
of
the
Comelec en
bane promulgated February 23, 19963 denying petitioner's motion for
reconsideration.

[G.R. No. 120295. June 28, 1996]


The Facts

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and


RAUL R. LEE, respondents.

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate
of Candidacy for the office of Governor of Sorsogon in the May 8,
1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate,
filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that

76

Frivaldo "be disqualified from seeking or holding any public office or position by
reason of not yet being a citizen of the Philippines," and that his Certificate of
Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec
promulgated a Resolution5 granting the petition with the following disposition: 6
"WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on
the ground that he is NOT a citizen of thePhilippines. Accordingly, respondent's
certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon
until after the May 8, 1995 elections. So, his candidacy continued and he was
voted for during the elections held on said date. On May 11, 1995, the
Comelec en banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes 8.dated May 27, 1995 was issued showing the
following votes obtained by the candidates for the position of Governor of
Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition9 praying for his proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the
petition "only on June 29, 1995," the Comelec en bane directed "the Provincial
Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June
30,1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed
as SPC No. 95-317, praying for the annulment of the June 30,
1995 proclamation of Lee and for his own proclamation. He alleged that on June
30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of
the Philippines after "his petition for repatriation under P.D. 725 which he filed
with the Special Committee on Naturalization in September 1994 had been
granted." As such, when "the said order (dated June 21, 1995) (of the Comelec)
x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation (of
Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the

two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said
position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes, and
xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995
under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the
office of governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES
to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law,
he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on
the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the
duly elected Governor of Sorsogon having garnered the highest number of
votes, and he having reacquired his Filipino citizenship by repatriation on June
30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified
to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately upon the due implementation
thereof."
On December 26,1995, Lee filed a motion for reconsideration which was denied
by the Comelec en banc in its Resolution14 promulgated on February 23, 1996.
On February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a
Resolution which inter alia directed the parties "to maintain the status
quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand briefly be capsulized in the


following propositions":15
"First - The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with the

77

result that, in effect, the COMELEC acted without jurisdiction in taking


cognizance of and deciding said petition;

the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law," i.e., "not later than fifteen days
before the election."

Second- The judicially declared disqualification of respondent was a continuing


condition and rendered him ineligible to run for, to be elected to and to hold the
Office of Governor;

Otherwise stated, Frivaldo contends that the failure of the Comelec to act
on the petition for disqualification within the period of fifteen days prior to the
election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.

Third - The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office
of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity
of petitioner's proclamation as duly elected Governor of Sorsogon."

G.R. No. 120295

On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective memoranda.

The Consolidated Issues

This is a petition to annul three Resolutions of the respondent Comelec,


the first two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of thePhilippines";
2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en bane, promulgated also
1995 suspending the proclamation of, among others, Frivaldo.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment and
are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.

on May

11,

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No.
123755. However, Frivaldo assails the above-mentioned resolutions on a
different ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the
election." (Italics supplied.)

From the foregoing submissions, the consolidated issues may be restated


as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure
his lack of citizenship as to qualify him to be proclaimed and to hold the Office
of Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship
a continuing bar to his eligibility to run for, be elected to or hold the
governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in
SPC No. 95-317 considering that : said petition is not "a pre-proclamation case,
an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in
light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not
rendered within ( the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

78

The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are secondary to
this.

when the Provincial Board of Canvassers met at 8:30 p.m. on the said date
since, clearly and unquestionably, he garnered the highest number of votes in
the elections and since at that time, he already reacquired his citizenship.

The Local Government Code of 1991 19 expressly requires Philippine


citizenship as a qualification for elective local officials, including that of
provincial governor, thus:

En contrario, Lee argues that Frivaldo's repatriation is tainted ; with


serious defects, which we shall now discuss in seriatim.

"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be elected;
a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or
dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it
is therefore incumbent upon him to show that he has reacquired citizenship; in
fine, that he possesses the qualifications prescribed under the said statute (R.
A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R.
No. 10465422 and during the oral argument in this case that he tried to resume
his citizenship by direct act of Congress, but that the bill allowing him to do so
"failed to materialize, notwithstanding the endorsement of several members of
the House of Representatives" due, according to him, to the "maneuvers of his
political rivals." In the same case, his attempt at naturalization was rejected by
this Court because of jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of 27,000 votes
in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same
opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus
twice disqualified from holding and discharging his popular mandate. Now, he
comes to us a third time, with a fresh vote from the people of Sorsogon and a
favorable decision from the Commission on Elections to boot. Moreover, he now
boasts of having successfully passed through the third and last mode of
reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the
Solicitor General himself, who was the prime opposing counsel in the previous
cases he lost, this time, as counsel for co-respondent Comelec, arguing the
validity of his cause (in addition to his able private counsel Sixto S. Brillantes,
Jr.). That he took his oath of allegiance under the provisions of said Decree
at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot
Leeshould have been proclaimed as the duly-elected governor of Sorsogon

First, Lee tells us that P.D. No. 725 had "been effectively repealed,"
asserting that "then President Corazon Aquino exercising legislative powers
under the Transitory Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present government, in the
exercise of prudence and sound discretion, should best leave to the judgment
of the first Congress under the 1987 Constitution," adding that in her
memorandum dated March 27,1987 to the members of the Special Committee
on Naturalization constituted for purposes of Presidential Decree No. 725,
President Aquino directed them "to cease and desist from undertaking any and
all proceedings within your functional area of responsibility as defined under
Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23
This memorandum dated March 27, 198724 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D.
No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be
express or implied. It is obvious that no express repeal was made because then
President Aquino in her memorandum based on the copy furnished us by Lee
did not categorically and/or impliedly state that P.D. 725 was being repealed or
was being rendered without any legal effect. In fact, she did not even mention
it specifically by its number or text. On the other hand, it is a basic rule of
statutory construction that repeals by implication are not favored. An implied
repeal will not be allowed "unless it is convincingly and unambiguously
demonstrated that the two laws are clearly repugnant and patently inconsistent
that they cannot co-exist."26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor should be
regarded as an exercise of her law-making powers. At best, it could be treated
as an executive policy addressed to the Special Committee to halt the
acceptance and processing of applications for repatriation pending whatever
"judgment the first Congress under the 1987 Constitution" might make. In other
words, the former President did not repeal P.D. 725 but left it to the first
Congress once createdto deal with the matter. If she had intended to repeal
such law, she should have unequivocally said so instead of referring the matter
to Congress. The fact is she carefully couched her presidential issuance in
terms that clearly indicated the intention of "the present government, in the
exercise of prudence and sound discretion" to leave the matter of repeal to the
new Congress. Any other interpretation of the said Presidential Memorandum,
such as is now being proffered to the Court by Lee, would visit unmitigated
violence not only upon statutory construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 x x x (and) was approved in just one day or on June 30,

79

1995 x x x," which "prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for repatriation with the
Office of the President in Malacanang Palace on August 17, 1994. This is
confirmed by the Solicitor General. However, the Special Committee was
reactivated only onJune 8, 1995, when presumably the said Committee started
processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be
said that there was "indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special
Committee on Naturalization was intended solely for the personal interest of
respondent,"27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were speeded
up is by itself not a ground to conclude that such proceedings were necessarily
tainted. After all, the requirements of repatriation under P.D. No. 725 are not
difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.
72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee to
promulgate. This is not unusual since, unlike in naturalization where an alien
covets a first-time entry into Philippine political life, in repatriation the applicant
is a former natural-born Filipino who is merely seeking to reacquire his previous
citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen
who openly and faithfully served his country and his province prior to his
naturalization in the United States a naturalization he insists was made
necessary only to escape the iron clutches of a dictatorship he abhorred and
could not in conscience embrace and who, after the fall of the dictator and the
re-establishment of democratic space, wasted no time in returning to his
country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor
General, were granted repatriation argues convincingly and conclusively
against the existence of favoritism vehemently posited by Raul Lee. At any
rate, any contest on the legality of Frivaldo's repatriation should have been
pursued before the Committee itself, and, failing there, in the Office of the
President, pursuant to the doctrine of exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed repatriation to be
valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995
whereas the citizenship qualification prescribed by the Local Government Code
"must exist on the date of his election, if not when the certificate of candidacy
is filed," citing our decision in G.R. 104654 30 which held that "both the Local
Government Code and the Constitution require that only Philippine citizens can
run and be elected to Public office" Obviously, however, this was a
mere obiter as the only issue in said case was whether Frivaldo's naturalization
was valid or not and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue ofwhen an aspirant for public office

should be a citizen was NOT resolved at all by the Court. Which question we
shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official
must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x
x x where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding
the day of the election;
* able to read and write Filipino or any other local language or
dialect."
* In addition, "candidates for the position of governor x x x must be
at least twenty-three (23) years of age on election day."
From the above, it will be noted that the law does not specify any
particular date or time when the candidate must possess citizenship, unlike
that for residence (which must consist of at least one year's residency
immediately preceding the day of election) and age (at least twenty three years
of age on election day).
Philippine citizenship is an indispensable requirement for holding an
elective public office,31 and the purpose of the citizenship qualification is none
other than to ensure that no alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or a unit of territory thereof.
Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995the very day 32 the
term of office of governor (and other elective officials) beganhe was therefore
already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he
was already qualified to govern his native Sorsogon. This is the liberal
interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So
too, even from a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should
such qualification be required at the time of election or at the time of the filing
of the certificates of candidacies, as Lee insists? Literally, such qualifications
unless otherwise expressly conditioned, as in the case of age and residence
should thus be possessed when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at the start of his term in this
case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand
Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure
that our people and country do not end up being governed by aliens, i.e.,
persons owing allegiance to another nation, that aim or purpose would not be
thwarted but instead achieved by construing the citizenship qualification as
applying to the time of proclamation of the elected official and at the start of
his term.

80

But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be possessed
at the time the candidate (or for that matter the elected official) registered as a
voter. After all, Section 39, apart from requiring the official to be a citizen, also
specifies as another item of qualification, that he be a "registered voter." And,
under the law35 a "voter" must be a citizen of the Philippines. So therefore,
Frivaldo could not have been a voter-much less a validly registered one if he
was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended the citizenship qualification to be possessed
prior to election consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a
voter presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from "citizenship"),
not to reiterate the need for nationality but to require that the official be
registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the
law states: "a registered voter in the barangay, municipality, city, or province x
x x where he intends to be elected." It should be emphasized that the Local
Government Code requires an elective official to be a registered voter. It does
not require him to vote actually. Hence, registrationnot the actual votingis the
core of this "qualification." In other words, the law's purpose in this second
requirement is to ensure that the prospective official is actually registered in
the area he seeks to govern and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not
disputed that he "was and is a registered voter of Sorsogon, and his registration
as a voter has been sustained as valid by judicial declaration x x x In fact, he
cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel stead-fastly maintained that
"Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter
was questioned, but the court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections including
on May 8,1995.37
It is thus clear that Frivaldo is a registered voter in the province where he
intended to be elected.
There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of election or
date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code38 gives any voter, presumably including the defeated candidate,
the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate.
This is the only provision of the Code that authorizes a remedy on how to
contest before the Comelec an incumbent's ineligibility arising from failure to
meet the qualifications enumerated under Sec. 39 of the Local Government
Code. Such remedy of Quo Warranto can be availed of "within ten days after
proclamation" of the winning candidate. Hence, it is only at such time that the
issue of ineligibility may be taken cognizance of by the Commission. And since,

at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G.
Frivaldo was already and indubitably a citizen, having taken his oath of
allegiance earlier in the afternoon of the same day, then he should have been
the candidate proclaimed as he unquestionably garnered the highest number of
votes in the immediately preceding elections and such oath had already cured
his previous "judicially-declared" alienage. Hence, at such time, he was no
longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETRO ACTED to the date of the filing of his application
on August 17,1994.
It is true that under the Civil Code of the Philippines,39 "(l)aws shall have
no retroactive effect, unless the contrary is provided." But there are settled
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to
cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of some
statutory disability or failure to comply with some technical requirement.They
operate on conditions already existing, and are necessarily retroactive in
operation. Agpalo,42 on the other hand, says that curative statutes are "healing
acts x x x curing defects and adding to the means of enforcing existing
obligations x x x (and) are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils x x x By their very nature, curative statutes
are retroactive xxx (and) reach back to past events to correct errors or
irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes
relating to remedies or modes of procedure, which do not create new or take
away vested rights, but only operate in furtherance of the remedy or
confirmation of such rights, ordinarily do not come within the legal meaning of
a retrospective law, nor within the general rule against the retrospective
operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and
also provides for a new remedy, thereby filling certain voids in our laws. Thus,
in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by marriage to aliens" and
who could not, under the existing law (C. A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the termination of their
marital status" and who could neither be benefitted by the 1973 Constitution's
new provision allowing "a Filipino woman who marries an alien to retain her
Philippine citizenship xxx" because "such provision of the new Constitution does
not apply to Filipino women who had married aliens before said constitution
took effect." Thus, P.D. 725 granted a new right to these womenthe right to reacquire Filipino citizenship even during their marital coverture, which right did
not exist prior to P.D. 725. On the other hand, said statute also provided a new
remedy and a new right in favor of other "natural born Filipinos who (had) lost
their Philippine citizenship but now desire to re-acquire Philippine citizenship,"

81

because prior to the promulgation of P.D. 725 such former Filipinos would have
had to undergo the tedious and cumbersome process of naturalization, but with
the advent of P.D. 725 they could now re-acquire their Philippine citizenship
under the simplified procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA
342), since they are intended to supply defects, abridge superfluities in existing
laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and
curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C. A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of
Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative."
In light of the foregoing, and prescinding from the wording of the
preamble, it is unarguable that the legislative intent was precisely to give the
statute retroactive operation. "(A) retrospective operation is given to a statute
or amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof." 45It is obvious to
the Court that the statute was meant to "reach back" to those persons, events
and transactions not otherwise covered by prevailing law and jurisprudence.
And inasmuch as it has been held that citizenship is a political and civil right
equally as important as the freedom of speech, liberty of abode, the right
against unreasonable searches and seizures and other guarantees enshrined in
the Bill of Rights, therefore the legislative intent to give retrospective operation
to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a
remedial statute must be so construed as to make it effect the evident purpose
for -which it was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so applied although
the statute does not in terms so direct, unless to do so would impair some
vested right or violate some constitutional guaranty." 46 This is all the more true
of P.D. 725, which did not specify any restrictions on or delimit or qualify the
right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of
P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975,
while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and
applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D. 725)
which is tobe given retroactive effect, but even the repatriation granted under

said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the
date of his application therefor, August 17, 1994. The reason for this is simply
that if, as in this case, it was the intent of the legislative authority that the law
should apply to past events i.e., situations and transactions existing even
before the law came into being in order to benefit the greatest number of
former Filipinos possible thereby enabling them to enjoy and exercise the
constitutionally guaranteed right of citizenship, and such legislative intention is
to be given the fullest effect and expression, then there is all the more reason
to have the law apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such law. That is, the
repatriation granted to Frivaldo on June 30, 1995 can and should be made to
take effect as of date of his application. As earlier mentioned, there is nothing
in the law that would bar this or would show a contrary intention on the part of
the legislative authority; and there is no showing that damage or prejudice to
anyone, or anything unjust or injurious would result from giving retroactivity to
his repatriation. Neither has Lee shown that there will result the impairment of
any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects there
were in his nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would
prevent prejudice to applicants. If P.D. 725 were not to be given retroactive
effect, and the Special Committee decides not to act, i.e., to delay the
processing of applications for any substantial length of time, then the former
Filipinos who may be stateless, as Frivaldohaving already renounced his
American citizenship was, may be prejudiced for causes outside their control.
This should not be. In case of doubt in the interpretation or application of laws,
it is to be presumed that the law-making body intended right and justice to
prevail.47
And as experience will show, the Special Committee was able to process, act
upon and grant applications for repatriation within relatively short spans of time
after the same were filed.48The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice to the government as a result
of giving retroactivity to repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a person's repatriation has
the effect of wiping out a liability of his to the government arising in connection
with or as a result of his being an alien, and accruing only during the
interregnum between application and approval, a situation that is not present in
the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing unjust
or iniquitous in treating Frivaldo's repatriation as having become effective as of
the date of his application, i.e., on August 17, 1994. This being so, all questions
about his possession of the nationality qualification whether at the date of
proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of
filing his certificate of candidacy (March 20, 1995) would become moot.

82

Based on the foregoing, any question regarding Frivaldo's status as a registered


voter would also be deemed settled. Inasmuch as he is considered as having
been repatriatedi.e., his Filipino citizenship restored as of August 17, 1994, his
previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would
the retroactivity of his repatriation not effectively give him dual citizenship,
which under Sec. 40 of the Local Government Code would disqualify him "from
running for any elective local position?" 49 We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really STATELESS
at the time he took said oath of allegiance and even before that, when he ran
for governor in 1988. In his Comment, Frivaldo wrote that he "had long
renounced and had long abandoned his American citizenshiplong before May 8,
1995. At best, Frivaldo was stateless in the interim when he abandoned and
renounced his US citizenship but before he was repatriated to his Filipino
citizenship."50
On this point, we quote from the assailed Resolution dated December 19,
1995:51
"By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine Government
when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of
candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the Commission are conclusive
upon this Court, absent any showing of capriciousness or arbitrariness or
abuse.52

The Second Issue: Is Lack of Citizenship a Continuing Disqualification?

Lee contends that the May 1,1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days or
on May 17,1995, no restraining order having been issued by this Honorable
Court."54 Hence, before Lee "was proclaimed as the elected governor on June
30, 1995, there was already a final and executory judgment disqualifying"
Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes
were legally "correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial pronouncements
of his political status as an American citizen absolutely and for all time
disqualified (him) from running for, and holding any public office in the
Philippines."
We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying
Frivaldo was rendered in connection with the 1988 elections while that in G.R.
No. 104654 was in connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed Resolution: 55
"The records show that the Honorable Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus disqualified for the purpose of the 1988 and
1992 elections. However, there is no record of any 'final judgment' of the
disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What
the Commission said in its Order of June 21, 1995 (implemented on June 30,
1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a
Filipino citizen 'having been declared by the Supreme Court in its Order dated
March 25, 1995, not a citizen of the Philippines.' This declaration of the
Supreme Court, however, was in connection with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of the
modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of
Immigration,56 we held:
"Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered res
judicata, hence it has to be threshed out again and again, as the occasion
demands."

The Third Issue: Comelec's Jurisdiction


Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain
the petition in SPC No. 95-317 because the only "possible types of proceedings
that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case." Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning
his (Lee's) proclamation only on July 6, 1995 "beyond the 5-day reglementary
period." Hence, according to him, Frivaldo's "recourse was to file either an
election protest or aquo warranto action."
This argument is not meritorious. The Constitution 57 has given the
Comelec ample power to "exercise exclusive original jurisdiction over all
contests relating to the elections, returns and qualifications of all elective x x x
provincial x x x officials." Instead of dwelling at length on the various petitions
that Comelec, in the exercise of its constitutional prerogatives, may entertain,
suffice

83

it to say that this Court has invariably recognized the Commission's


authority to hear and decide petitions for annulment of proclamations of which
SPC No. 95-317 obviously is one. 58Thus, in Mentang vs. COMELEC,59 we ruled:
"The petitioner argues that after proclamation and assumption of office, a preproclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidate has been proclaimed, (citing
Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513;
Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an
assumption that the proclamation is no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive the COMELEC of the power to
make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883;
Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation
must "be done within ten (10) days following the proclamation." Inasmuch as
Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is
no question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid

Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:

itself in its resolution dated May 10, 1992 to be voted for the office of
the city mayor as its resolution dated May 9,1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and subject
to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical situation
as Labo was in 1992 when the Comelec's cancellation of his certificate of
candidacy was not yet final on election day as there was in both cases a
pending motion for reconsideration, for which reason Comelec issued an
(omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several
others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that
the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's
alleged disqualification as to "bring such awareness within the realm of
notoriety", in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labohas any
relevance at all, it is that the vice-governor and not Leeshould be proclaimed,
since in losing the election, Lee was, to paraphrase Labo again, "obviously not
the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office."

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he
(Lee) was not the choice of the sovereign will," and in Aquino vs.
COMELEC,61 Lee is "a second placer, xxx just that, a second placer."

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of
votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be corrected.

In spite of this, Lee anchors his claim to the governorship on the


pronouncement of this Court in the aforesaid Labo62 case, as follows:

The Fifth Issue: Is Section 78 of the Election Code Mandatory?

"The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the validity
and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the
next higher number of votes may be deemed elected."

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en
banc Resolution of May 11, 1995 disqualifying him for want of citizenship
should be annulled because they were rendered beyond the fifteen (15) day
period prescribed by Section 78 of the Omnibus Election Code which reads as
follows:

But such holding is qualified by the next paragraph, thus:


"But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as an
ineligible candidate, much less the electorate as having known of such fact. On
the contrary, petitioner Labo was even allowed by no less than the Comelec

"Section 78. Petition to deny due course or to cancel a certificate of


candidacy. A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later than twentyfive days from the time of the filing of the certificate of candidacy and shall be

84

decided after notice and hearing, not later than fifteen days before the
election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission (First
Division) on December 19, 1995, affirmed en banc63 on February 23, 1996,
which both upheld his election. At any rate, it is obvious that Section 78 is
merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try
and decide petitions for disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared
by final judgment to be disqualified shall not be voted for, and the votes cast
for him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the -winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong." (Italics supplied)

Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should be
viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether
it decrees a suspension or a repeal is a purely academic distinction because the
said issuance is not a statute that can amend or abrogate an existing law. The
existence and subsistence of P.D. 725 were recognized in the first Frivaldo
case;64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725,
Philippine citizenship maybe reacquired by xxx repatriation" He also contends
that by allowing Frivaldo to register and to remain as a registered voter, the
Comelec and in effect this Court abetted a "mockery" of our two previous
judgments declaring him a non-citizen. We do not see such abetting or
mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the
purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous
rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy
to question the ineligibility of a candidate, citing the Comelec's authority under
Section 78 of the Omnibus Election Code allowing the denial of a certificate of
candidacy on the ground of a false material representation therein as required
by Section 74. Citing Loong, he then states his disagreement with our holding
that Section 78 is merely directory. We really have no quarrel. Our point is that
Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec
Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid
because they were issued "not later than fifteen days before the election" as

prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold
that the Comelec did not commit grave abuse of discretion because "Section 6
of R. A. 6646 authorizes the Comelec to try and decide disqualifications even
after the elections." In spite of his disagreement with us on this point, i.e., that
Section 78 "is merely directory," we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as
quoted in the dissent, teaches that a petition to deny due course under Section
78 must be filed within the 25-day period prescribed therein. The present case
however deals with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after thefifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that a petition filed
beyond the 25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given retroactive
effect. He argues that such retroactivity "dilutes" our holding in the first
Frivaldo case. But the first (and even the second Frivaldo) decision did not
directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled.
But his supervening repatriation has changed his political status not in 1988 or
1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment is
not a ground to lose American citizenship." Since our courts are charged only
with the duty of the determining who are Philippine nationals, we cannot rule
on the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own citizens
not who are the citizens of other countries. 65 The issue here is: the Comelec
made a finding of fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following settled case law,
such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins
to Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known." First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if
there is, such knowledge can be true post facto only of the last two previous
elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections. How
then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of elective local officials, i.e., candidates, and
not elected officials, and that the citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not merely at the commencement
of the term, but by election day at the latest. We see it differently. Section 39,
par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates." If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if

85

Congress had meant that the citizenship qualification should be possessed at


election day or prior thereto, it would have specifically stated such detail, the
same way it did in pars. (b) to (f) for other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to
Frivaldo's repatriation on the ground, among others, that the law specifically
provides that it is only after taking the oath of allegiance that applicants shall
be deemed to have reacquired Philippine citizenship. We do not question what
the provision states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is deemed to have
reacquired Philippine citizenship, which reacquisition (or repatriation) is
deemed for all purposes and intents to have retroacted to the date of his
application therefor.
In any event, our "so too" argument regarding the literal meaning of the
word "elective" in reference to Section 39 of the Local Government Code, as
well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725
suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be
the first to uphold the Rule of Law." We agree we must all follow the rule of law.
But that is NOT the issue here. The issue is how should the law be interpreted
and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and
perception of how to interpret and apply laws relating to elections: literal or
liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal
syllogism or substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters' obvious choice. In
applying election laws, it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms. Indeed,
to inflict a thrice rejected candidate upon the electorate of Sorsogon would
constitute unmitigated judicial tyranny and an unacceptable assault upon this
Court's conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government


Code is to be possessed by an elective official at the latest as of the time he is
proclaimed and at the start of the term of office to which he has been elected.
We further hold P.D. No. 725 to be in full force and effect up to the present, not
having been suspended or repealed expressly nor impliedly at any time, and
Frivaldo's repatriation by virtue thereof to have been properly granted and thus
valid and effective. Moreover, by reason of the remedial or curative nature of
the law granting him a new right to resume his political status and the
legislative intent behind it, as well as his unique situation of having been forced
to give up his citizenship and political aspiration as his means of escaping a
regime he abhorred, his repatriation is to be given retroactive effect as of the

date of his application therefor, during the pendency of which he was stateless,
he having given ' up his U. S. nationality. Thus, in contemplation of law, he
possessed the vital requirement of Filipino citizenship as of the start of the term
of office of governor, and should have been proclaimed instead of Lee.
Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated
as of said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing disability
or disqualification to run for and hold public office. And once again, we
emphasize herein our previous rulings recognizing the Comelec's authority and
jurisdiction to hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the
electoral laws of our country to give fullest effect to the manifest will of our
people,66 for in case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed
through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be defeated
by mere technical objections (citations omitted)." 67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the will
of the majority, for it is merely sound public policy to cause elective offices to
be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic 68 to constitutional
and legal principles that overriding such ineligibility and thereby giving effect to
the apparent will of the people, would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and
laws so zealously protect and promote. In this undertaking, Lee has miserably
failed.
In Frivaldo's case, it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of his
repatriation and hold him still ineligible due to his failure to show his citizenship
at the time he registered as a voter before the 1995 elections. Or, it could have
disputed the factual findings of the Comelec that he was stateless at the time
of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But the real
essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role
of law as a brick in the ultimate development of the social edifice. Thus, the
Court struggled against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke substantial justice

86

in the larger social context consistent with Frivaldo's unique situation


approximating venerability in Philippine political life. Concededly, he sought
American citizenship only to escape the clutches of the dictatorship. At this
stage, we cannot seriously entertain any doubt about his loyalty and dedication
to this country. At the first opportunity, he returned to this land, and sought to
serve his people once more. The people of Sorsogon overwhelmingly voted for
him three times. He took an oath of allegiance to this Republic every time he
filed his certificate of candidacy and during his failed naturalization bid. And let
it not be overlooked, his demonstrated tenacity and sheer determination to reassume his nationality of birth despite several legal set-backs speak more
loudly, in spirit, in fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines even now at
the ripe old age of 81 years. Such loyalty to and love of country as well as
nobility of purpose cannot be lost on this Court of justice and equity. Mortals of
lesser mettle would have given up. After all, Frivaldo was assured of a life of
ease and plenty as a citizen of the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning to and serving once more his
struggling but beloved land of birth. He therefore deserves every liberal
interpretation of the law which can be applied in his favor. And in the final
analysis, over and above Frivaldo himself, the indomitable people of Sorsogon
most certainly deserve to be governed by a leader of their overwhelming
choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19628 December 4, 1922
LICHAUCO & COMPANY, INC., petitioner,
vs.
SILVERIO APOSTOL, as Director of Agriculture, and RAFAEL CORPUS, as
Secretary of Agriculture and Natural Resources, respondents.
Gibbs, McDonough and Johnson for petitioner.
Attorney-General Villa-Real for respondents.

STREET, J.:
This is an original petition for the writs of mandamus and injunction, filed in this
court by Lichauco & Company against the respondents, Silverio Apostol, as
Director of Agriculture, and Rafael Corpus, as Secretary of Agriculture and
Natural Resources. An order having been issued by this court requiring the
respondents to appear and show cause why the relief prayed for should not be
granted, the Attorney-General presented a return, in the nature of a demurrer,
in their behalf; and the cause is now before us for the determination of the
questions thus presented.
It is alleged in the complaint that the petitioner is a corporation duly organized
under the laws of the Philippine Islands and that it has been engaged for
several years in the business of importing carabao and other draft animals into
the Philippine Islands and that it is now desirous of importing from Pnom-Pehn,
in French Indo-China, a shipment of draft cattle and bovine cattle for the
manufacture of serum but that the respondent Director of Agriculture refuses to
admit said cattle, except upon the condition, stated in Administrative Order No.
21 of the Bureau of Agriculture, that said cattle shall have been immunized
from rinderpest before embarcation at Pnom-Pehn. The petitioner therefore
asks for an order requiring the respondents to admit the contemplated
importation of cattle into the Islands and enjoining them from the enforcement
of said administrative order in the future.
The petitioner asserts that under the first proviso to section 1762 of the
Administrative Code, as amended by Act No. 3052 of the Philippine Legislature,
it has "an absolute and unrestricted right to import carabao and other draft
animals and bovine cattle for the manufacture of serum from Pnom-Pehn, IndoChina, into the Philippine Islands" and that the respondents have no authority
to impose upon the petitioner the restriction referred to above, requiring the
immunization of the cattle before shipment.
The respondents, on the other hand, rely upon section 1770 of the
Administrative Code and upon Administrative Order No. 21 of the Bureau of
Agriculture, promulgated on July 29, 1922, by the Director of Agriculture, in
relation with Department Order No. 6, promulgated on July 28, 1922, by the
Secretary of Agriculture and Natural Resources, as supplying authority for the
action taken.
Such portions of the laws above-mentioned as are material to the present
controversy will be set out in full, preceded by section 1762 of the
Administrative Code, as originally enacted, to which will be appended the
pertinent parts of the orders referred to and the communication of the Director
of Agriculture of August 31, 1922.
1. First paragraph of section 1762 of Administrative Code in original
form:

87

SEC. 1762. Bringing of diseased animal into Islands


forbidden. Except upon permission of the Director of
Agriculture, with the approval of the head of Department first
had, it shall be unlawful for any person knowingly to ship or
otherwise bring into the Philippine Islands any animal suffering
from, infected with, or dead of any dangerous communicable
disease, or any effects pertaining to such animal which are
liable to introduce such disease into the Philippine Islands.
2. First paragraph of section 1762 of Administrative Code, as amended
by Act No. 3052 of the Philippine Legislature:
SEC. 1762. Bringing of animals imported from foreign
countries into the Philippine Islands. It shall be unlawful for
any person or corporation to import, bring or introduce live
cattle into the Philippine Islands from any foreign country. The
Director of Agriculture may, with the approval of the head of
the department first had, authorize the importation, bringing
or introduction of various classes of thoroughbred cattle from
foreign countries for breeding the same to the native cattle of
these Islands, and such as may be necessary for the
improvement of the breed, not to exceed five hundred head
per annum: Provided, however, That the Director of Agriculture
shall in all cases permit the importation, bringing or
introduction of draft cattle and bovine cattle for the
manufacture of serum:Provided, further, That all live cattle
from foreign countries the importation, bringing or introduction
of which into the Islands is authorized by this Act, shall be
submitted to regulations issued by the Director of Agriculture,
with the approval of the head of the department, prior to
authorizing its transfer to other provinces.
3. Section 1770 of Administrative Code:
SEC. 1770. Prohibition against bringing of animals from
infected foreign countries. When the Department Head shall
by general order declare that a dangerous communicable
animal disease prevails in any foreign country, port, or place
and that there is danger of spreading such disease by the
importation of domestic animals therefrom, it shall be unlawful
for any person knowingly to ship or bring into the Philippine
Islands any such animal, animal effects, parts, or products
from such place, unless the importation thereof shall be
authorized under the regulation of the Bureau of Agriculture.
4. Department Order No. 6, promulgated on July 28, 1922, by
Secretary of Agriculture and Natural Resources:
DEPARTMENT

ORDER }

NO. 6.

}Series
}

of

Owing to the fact that a dangerous communicable disease


known as rinderpest exist in Hongkong, French Indo-China and
British India, it is hereby declared, in accordance with the
provisions of section 1770 of Act No. 2711 (Administrative
Code of the Philippine Islands of 1917), that rinderpest prevails
in said countries, and as there is danger of spreading such
disease by the importation of cattle, carabaos, and pigs
therefrom, it shall be unlawful for any person knowingly to ship
or bring into the Philippine Islands any such animal, animal
effects, parts, or products from Hongkong, French Indo-China
and British India, unless the importation thereof shall be
authorized under the regulations of the Bureau of Agriculture.
The provisions of this order shall take effect on and after
August 1, 1922.
5. Administrative Order No. 21, of the Bureau of
promulgated July 29, 1922, by the Director of Agriculture:

Agriculture,

ADMINISTRATIVE

ORD

NO. 21
Re importation of cattle, carabaos, and pigs from French IndoChina, Hongkong and India.
1. Pursuant to the provisions of Department Order No. 6, series
of 1922, of the Department of Agriculture and Natural
Resources, the present regulations of the Bureau of Agriculture
governing the importation of livestock from French Indo-China
and Hongkong are hereby amended to the effect that the
importation of livestock of the species named in the
aforementioned Department Order is hereby prohibited from
French Indo-China, Hongkong and India. However, animals
immunized against rinderpest, for which the importer before
placing his order shall have obtained from the Director of
Agriculture a written permit to import them from the above
named countries, may be allowed entrance into the Philippine
Islands.
2. This order shall take effect on and after August 1, 1922.
6. Communication of August 31, 1922, from the Acting Director of
Agriculture to Faustino Lichauco (in part):

88

SIR: In reply to your application for permission to import from


300 to 400 carabaos immunized against rinderpest from PnomPehn, French Indo-China, I have the honor to inform you that
the permission is hereby granted, under the following
conditions:
1. Animals must be immunized by the simultaneous method
before shipment. At least 10 c.c. of good virulent blood must
be injected at the first injection simultaneously with the serum.
Ten days after the simultaneous inoculation all non-reactors
must receive another injection of not less than 10 c.c. of
virulent blood (alone).
2. The immunization must be done by a veterinarian
designated by the French Government for the purpose, who
must issue a certificate stating the fact that the animal has
been immunized according to the requirements in number 1
and it must not be embarked until ten days after the second
injection of virulent blood.
xxx

xxx

xxx

Very respectfully,
SILVERIO
Acting Director of Agriculture.

APOSTOL,

Upon glancing over the matter above collated, it will be seen at once that
section 1770 of the Administrative Code on its face authorizes the action taken
by the Secretary of Agriculture and Natural Resources in closing our ports (in
the manner and to the extent indicated in Department Order No. 6) to the
importation of cattle and carabao from French Indo-China, supposing of course,
as everybody knows and as the petitioner does not deny, that the disease of
rinderpest exists in that country.
It is claimed, however, that section 1762 of the Administrative Code, so far as it
authorizes restriction upon the importation of draft cattle and bovine cattle for
the manufacture of serum, has been impliedly repealed by the amendatory Act
No. 3052, which is of later enactment that the Administrative Code; and in this
connection reliance is chiefly placed on the first proviso to section 1762, as
amended by said Act No. 3052, which is in these words: "Provided,
however, That the Director of Agriculture shall in all cases permit the
importation, bringing or introduction of draft cattle and bovine cattle for the
manufacture of serum." This then is the first and principal question in the case,
namely, whether section 1770 has been repealed by implication, in so far as it
relates to draft animals and bovine cattle for the manufacture of serum. We say

repealed by implication, for it will be noted that that Act No. 3052 has no
repealing clause, and it contains only one section, i. e., that amending section
1762 of the Administrative Code.
We are of the opinion that the contention of the petitioner is untenable, for the
reason that section 1762, as amended, is obviously of a general nature, while
section 1770 deals with a particular contingency not made the subject of
legislation in section 1762. Section 1770 is therefore not to be considered as
inconsistent with section 1762, as amended; on the other hand, it must be
treated as a special qualification of section 1762. Of course the two provisions
are different, in the sense that if section 1762, as amended, is considered
alone, the cattle which the petitioner wishes to bring in can be imported
without restriction, while if section 1770 is still in force the cattle, under the
conditions stated in the petition, can be brought in only upon compliance with
the requirements of Administrative Order No. 21. But this difference between
the practical effect of the two provisions does not make then inconsistent in the
sense that the earlier provision (sec. 1770) should be deemed repealed by the
amendatory Act (3052).
That section 1770 is special, in the sense of dealing with a special contingency
not dealt with in section 1762, is readily apparent upon comparing the two
provisions. Thus, we find that while section 1762 relates generally to the
subject of the bringing of animals into the Island at any time and from any
place, section 1770 confers on the Department Head a special power to deal
with the situation which arises when a dangerous communicable disease
prevails in some defined foreign country, and the provision is intended to
operate only so long as that situation continues. Section 1770 is the backbone
of the power to enforce animal quarantine in these Islands in the special
emergency therein contemplated; and if that section should be obliterated, the
administrative authorities here would be powerless to protect the agricultural
industry of the Islands from the spread of animal infection originating abroad.
We note that the argument for unrestricted importation extends only to the
importation of cattle for draft purposes and bovine cattle for the manufacture of
serum, leaving section 1770 theoretically in full effect as regards the
importation of cattle for other purposes, as where they are imported for
slaughter; but the importation of cattle for draft purposes is the principal thing,
and unless that can be regulated under the conditions and to the extent
attempted by the respondents in this case, the power given in section 1770 is
obviously worthless.
In our opinion section 1762, as amended, and section 1770 must be
construed in pari materia as harmonious parts of the law dealing with animal
quarantine; and section 1762, as amended, can be given effect only in so far as
it is not restricted by section 1770. Here, as always, the general must yield to
the particular.
If the Congress of the United States should this day repeal the Chinese
Exclusion Law so far as it affects these Islands, and should declare that all
persons of Chinese nationality shall be at liberty to enter the Philippine Islands

89

without restriction, would anybody suppose that such enactment would have
the effect of abolishing the power to maintain quarantine against any Chinese
port where cholera or bubonic plaque might hereafter be raging in epidemic
form? Yet the question now before us is not fundamentally different from the
one thus supposed.
The judicial precedents are conclusive to the effect that no implied repeal of a
special provisions of the character of the one now under consideration will
result from the enactment of broader provision of a general nature. In other
words, a general statute without negative words does not repeal a previous
statute which is particular, even though the provisions of one be different from
the other. (Rymer vs. Luzerne County, 12 L. R. A., 192; Petri vs. F. E. Creelman
Lumber Co., 199 U. S., 487; 50 L. ed., 281.)
Wherever there is a particular enactment and a general enactment in the same
statute, and the latter, taken in its most comprehensive sense, would overrule
the former, the particular enactment must be operative, and the general
enactment must be taken to affect only the other parts of the statute to which
it may properly apply. (Sir John Romilly, Master of the Rolls, in Pretty vs. Solly,
26 Beav., 606, 610.)
The additional words of qualification needed to harmonize a general and a prior
special provision in the same statute should be added to the general provision,
rather than to the special one. (Rodgers vs. United States, 185 U. S., 82; 46 L.
ed., 816.)
Specific legislation upon a particular subject is not affected by a general law
upon the same subject unless it clearly appears that the provision of the two
laws are so repugnant that the legislature must have intended by the later to
modify or repeal the earlier legislation. The special act and the general law
must stand together, the one as the law of the particular subject and the other
as the general law of the land. (Ex Parte United States, 226 U. S., 420; 57 L.
ed., 281; Ex Parte Crow Dog, 109 U. S., 556; 27 L. ed., 1030; Partee vs. St. Louis
& S. F. R. Co., 204 Fed. Rep., 970.)
Where there are two acts or provisions, one of which is special and particular,
and certainly includes the matter in question, and the other general, which, if
standing alone, would include the same matter and thus conflict with the
special act or provision, the special must be taken as intended to constitute an
exception to the general act or provision, especially when such general and
special acts or provisions are contemporaneous, as the Legislature is not to be
presumed to have intended a conflict. (Crane vs. Reeder and Reeder, 22 Mich.,
322, 334; University of Utah vs. Richards, 77 Am. St. Rep., 928.)
It is well settled that repeals by implication are not to be favored. And where
two statutes cover, in whole or in part, the same matter, and are not absolutely
irreconcilable, the duty of the court no purpose to repeal being clearly
expressed or indicated is, if possible, to give effect to both. In other words, it
must not be supposed that the Legislature intended by a latter statute to repeal

a prior one on the same subject, unless the last statute is so broad in its terms
and so clear and explicit in its words as to show that it was intended to cover
the whole subject, and therefore to displace the prior statute. (Frost vs. Wenie,
157 U. S., 46; 39 L. ed., 614, 619.)
As stated in the pages of the two most authoritative legal encyclopedias, the
rule is that a prior legislative act will not be impliedly repealed by a later act
unless there is a plain, unavoidable and irreconcilable repugnancy between the
two. If both acts can by any reasonable construction stand together, both will
be sustained. (36 Cyc., 1074- 1076; 26 Am. & Eng. Encyc. Law, 2d ed., 725726.)
A masterly analysis of the decisions of the United States Courts pertinent to the
matter now in hand will be found in the monographic article on "Statutes and
Statutory Construction," written by Chas. C. Moore and prefixed as a General
Introduction to Federal Statutes Annotated. The discussion there given is too
lengthy to be here reproduced in full, but some of the observations of the
learned author are so appropriate to the case before us that we cannot forego
the temptation to include the same in this opinion. Says the writer: "The various
provisions of an act should be read so that all may, if possible, have their due
and conjoint effect without repugnancy or inconsistency. The sections of a code
relative to any subject must be harmonized and to that end the letter of any
section may sometimes be disregarded. But where absolute harmony between
parts of a statute is demonstrably non-existent, the court must reject that one
which is least in accord with the general plan of the whole, or if there be no
such ground for choice between inharmonious section, the later section being
the last expression of the legislative mind must, in construction, vacate the
former to the extent of the repugnancy." (1 Fed. Stat. Ann., 2d ed., 49-50.)
And speaking with reference to the rule by which special provisions are held to
dominate over general provisions in the same or later laws, the author
proceeds: " 'it is an old and familiar rule,' said Mr. Justice Lamar, 'that where
there is in the same statute a particular enactment, and also a general one,
which in its most comprehensive sense would include what is embraced in the
former, the particular enactment must be operative, and the general
enactment must be taken to affect only such cases within its general language
as are not within the provisions of the particular enactment.' And the Justice
proceeded to apply that rule in the construction of a statute upon which there
had been much ingenious argument and a decided conflict of authority in the
inferior federal courts. The stature was an act of Congress of 1876, declaring
nonmailable 'every obscene . . . book, pamphlet, paper, writing, print, or other
publication of an indecent character,' and other enumerated articles, and
making it a misdemeanor to deposit any of them for mailing. In a prosecution
under the act, the Circuit Court certified to the Supreme Court the following
question: 'Is the knowingly depositing in the mails of an obscene letter, inclosed
in an envelope or wrapper upon which there is nothing but the name and
address of the person to whom the letter is written, an offense within the act?'
On behalf of the government it was contended that the word 'writing'
comprehended such a letter, but the Supreme Court held otherwise. In the
course of his argument in support of the view of the court, Justice Lamar
pointed out that the statute, after enumeration what articles shall be

90

nonmailable, adds a separate and distinct clause declaring that 'every


letter upon the envelope of which . . . indecent, lewd, obscene, or lascivious
delineations, epithets, terms, or language may be written or printed . . . shall
not be conveyed in the mails,' and the person knowingly or willfully depositing
the same in the mails 'shall be deemed guilty of a misdemeanor,' etc. 'This
distinctly additional clause,' continued the Justice, 'specifically designating and
describing the particular class of letters which shall be nonmailable, clearly
limits the inhibitions of the statute to that class of letters alone whose indecent
matter is exposed on the envelope.' " (1 Fed. Stat. Ann., 2d ed., 50-51; also at
pp. 164-166.)
The cases relating to the subject of repeal by implication all proceed on the
assumption that if the act of latter date clearly reveals an intention on the part
of the lawmaking power to abrogate the prior law, this intention must be given
effect; but there must always be a sufficient revelation of this intention, and it
has become an unbending rule of statutory construction that the intention to
repeal a former law will not be imputed to the Legislature when it appears that
the two statute, or provisions, with reference to which the question arises bear
to each other the relation of general to special. It is therefore idle to speculate
whether in the case before us the Philippine Legislature may or may not have
intended to modify or abrogate section 1770 of the Administrative Code at the
time the amendment to section 1762 was enacted, for if any such intention was
entertained, it was not revealed in a way that would justify a court in giving this
intention effect. We may add, however, that, in the opinion of the majority of
the Justices participating in this decision, the Legislature in amending section
1762 could not possibly have entertained a design to modify section 1770; for,
as we have already shown, the abrogation of that provision, even as regards
draft animals alone, would leave the animal industry of the Islands exposed to
the danger incident to the unrestricted importation of infected animals from
districts where rinderpest prevails. The unreasonableness of this interpretation
of the amendatory law alone supplies sufficient warrant for rejecting it. The
Legislature could not possibly have intended to destroy the effectiveness of
quarantine as regards imported animals.

fact that rinderpest exists in the regions referred to in Department Order No. 6,
there is, and can be no dispute; and when the Department Head declared that
the disease prevails in those regions and that there is danger of spreading it by
the importation of cattle and carabao into this country, he was acting upon a
matter within his province, and we are not disposed to review the conclusion.
It has been suggested that the regulative power vested in the Director of
Agriculture under section 1770 of the Administrative Code with respect to the
admission of cattle into the Philippine Islands attaches only when the
importation has been effected; and that the said Director has no authority to
dictate the measures to be taken by the importer before the cattle are
embarked for transportation to these Islands. This contention, in our opinion,
reflects a mistaken point of view with reference to the effect of the regulations;
and the answer is to be found in the consideration that the regulation in
question has prospective reference to the condition of the cattle upon their
arrival here. In other words, the prior immunization of the cattle is made a
condition precedent to the right to bring them in; as much as to say, that only
animals conforming to the required type will be admitted. The importer is thus
left at entire liberty in respect to the taking of the necessary measures to gain
admittance for his cattle in our ports; and if he fails to do so, the penalty merely
is that the cattle are not admitted.
Upon the whole we are of the opinion that the petition does not show sufficient
ground for granting the writs ofmandamus and injunction. The demurrer
interposed thereto by the respondents in their return to the order to show
cause, dated October 7, 1922, is therefore sustained, and the temporary
restraining order heretofore promulgated in this cause, dated September 21,
1922, is dissolved; and unless within five days after notification hereof the
petitioner shall so amend his petition as to show a sufficient cause of action, an
order absolute will be entered, dismissing the same, with costs. So ordered.
Malcolm, Avancea, Villamor, and Ostrand, JJ., concur.

Our conclusion then is that section 1770 of the Administrative Code remains in
full force; and the determination of this question is we think necessarily fatal to
the petitioner's case.

Separate Opinions

It is insisted, however, that even supposing section 1770 of the Administrative


Code to be in force, nevertheless, the requirement of immunization at the port
of embarcation is unreasonable, inasmuch as the immunization of the cattle at
that port, under the supervision of the Government veterinarians of French
Indo-China, is not unconditionally accepted as efficacious by the Philippine
authorities, as shown by the fact that the latter further require tests to be made
upon the arrival of the cattle here, consisting of inoculation with virulent blood
of animals suffering from rinderpest which involves additional expenses and
exposes the importer to the loss of his entire herd.

JOHNS, J., dissenting:


The question involved is the meaning and construction of Act No. 3052 of the
Legislature at its special session approved March 14, 1922, as it amends
section 1762 of Act No. 2711, and to what extent, if any, it repeals or modifies
section 1770 of Act No. 2711.
It will be noted that section 1 of Act No. 3052 reads as follows:

Considerations of this nature are we think more proper to be addressed to the


authorities responsible for the regulations than to this court. About the principal

91

Section seventeen hundred and sixty-two of Act Numbered Twentyseven hundred and eleven, known as the Administrative Code, is
hereby amended to read as follows:
Hence, Act No. 3052 becomes, and is, a complete substitute for section 1762 of
Act No. 2711, which reads as follows:
SEC. 1762. Bringing of diseased animal into Islands forbidden.
Except upon permission of the Director of Agriculture, with the
approval of the head of Department first had, it shall be unlawful for
any person knowingly to ship or otherwise bring into the Philippine
Islands any animal suffering from, infected with, or dead of any
dangerous communicable disease, or any effects pertaining to such
animal which are liable to introduce such disease into the Philippine
Islands.
Any such animal or its effects may be permitted by the Director of
Agriculture, with the approval of the head of Department first had, to
enter the Islands under such conditions as to quarantine, cremation, or
other disposal as he may direct, or which shall be deemed by him
sufficient to prevent the spread of any such disease.
As amended by Act No. 3052, section 1762 reads as follows:
SEC. 1762. Bringing of animals imported from foreign countries into
the Philippine Islands. It shall be unlawful for any person or
corporation to import, bring or introduce live cattle into the Philippine
Islands from any foreign country. The Director of Agriculture may, with
the approval of the head of the department first had, authorize the
importation, bringing or introduction of various classes of thoroughbred
cattle from foreign countries for breeding the same to the native cattle
of these Islands, and such as may be necessary for the improvement of
the breed, not to exceed five hundred head per annum: Provided,
however, That the Director of Agriculture shall in all cases permit the
importation, bringing or introduction of draft cattle and bovine cattle
for the manufacture of serum: Provided, further, That all live cattle
from foreign countries the importation, bringing or introduction of
which into the Islands is authorized by this Act, shall be submitted to
regulations issued by the Director of Agriculture, with the approval of
the head of the department, prior to authorizing its transfer to other
provinces.
At the time of the approval of this Act, the Governor-General shall issue
regulations and others to provide against a raising of the price of both
fresh and refrigerated meat. The Governor-General also may, by
executive order, suspend this prohibition for a fixed period in case local
conditions require it.
It was approved March 14, 1922.

It will be noted that the original Act was entitled:


Bringing of diseased animal into Islands forbidden.
And that , as amended by Act No. 3052, it is now entitled:
Bringing of animals imported from foreign countries into the Philippine
Islands.
Of course, it must follow that any animal imported into the Philippine Islands
must be brought here from a foreign country within the meaning of either Act. It
will be noted that the word "diseased," as found in the title of the original Act, is
not found in the title of the Act as amended. To my mind this is important,
especially in view of the language used in the amended Act, which reads:
It shall be unlawful for any person or corporation to import, bring or
introduce live cattle into the Philippine Islands from any foreign
country.
Standing alone that language would be construed as an express prohibition
against bringing cattle of any kind into the Philippine Islands "from any foreign
country." The Act then says:
The Director of Agriculture may, with the approval of the head of the
department first had, authorized the importation, bringing or
introduction of various classes of thoroughbred cattle from foreign
countries for breeding the same to the native cattle of these Islands,
and such as may be necessary for the improvement of the breed, not
to exceed five hundred head per annum.
By those provisions the Director of Agriculture, with the approval of the head of
the department first had and obtained, may authorize the importation of
thoroughbred cattle for breeding purposes not to exceed five hundred head per
annum. To import such cattle, the shipper must obtain the consent of the
Director of Agriculture, together with the approval "of the head of the
department," and it must appear that the cattle "are thoroughbred cattle from
foreign countries for breeding the same to the native cattle of these Islands,"
and that they are of the kind which will improve the breed of the native cattle,
and the number must not exceed five hundred head per annum. That is to say,
by the express terms of the Act, thoroughbred cattle cannot be imported
without the express consent and approval of the Director of Agriculture and the
head of his department, and then only for specific purposes, and then in a
limited quantity. Such provision will not admit of any other construction.
Bearing those provisions and such construction in mind, the Act further says:
Provided, however, That the Director of Agriculture shall in all cases
permit the importation, bringing or introduction of draft cattle and
bovine cattle for the manufacture of serum.

92

Under the former provision of the Act thoroughbred cattle cannot be imported
without the consent of the Director of Agriculture, "without the approval of the
head of the department first had." But as to draft cattle and bovine cattle, the
Act expressly provides:
That the Director of Agriculture shall in all cases permit the
importation.
That is to say, as to thoroughbred cattle, he may or may not grant the permit,
and then only in a limited number. But as to draft cattle and bovine cattle for
the manufacture of serum, he "shall in all cases permit the importation." As to
such cattle it is not a matter of his choice or discretion. But the majority opinion
holds that he is given that power and discretion under section 1770 of Act No.
2711, which reads as follows:
SEC. 1770. Prohibition against bringing of animals from infected
foreign countries. When the Department Head shall be general order
that a dangerous communicable animal disease prevails in any foreign
country, port, or place and that there is danger of spreading such
disease by the importation of domestic animals therefrom, it shall be
unlawful for any person knowingly to ship or bring into the Philippine
Islands any such animal, animal effects, parts, or products from such
place, unless the importation thereof shall be authorized under the
regulations of the Bureau of Agriculture.
It will be noted that section 1770 was enacted in 1917, and that Act No. 3052
was enacted March 14, 1922, five years after section 1770 became a law. It will
also be noted that the rules and regulation here sought to be enforced were
promulgated in July, 1922, under section 1770, and four months after Act No.
3052 became a law. That is to say, that here you have rules and regulations of
a subordinate department promulgated in July, 1922, that are in dire0ct conflict
with an Act of the Legislature approved March, 1922. But it is contended that
one is a special and the other a general law, and that the two Acts should be
construed in pari materia. The construction overlooks the fact that the force
and effect of section 1770 of Act No 2711 is founded upon section 1762, and
that both are sections of the same general Act, and that when section 1762 is
repealed, as it is, by Act No. 3052, in so far as it applies to draft and bovine
cattle, there is nothing left upon which section 1770 can operate or to which it
would apply. That is to say, that section 1762 and section 1770 are both
sections of a general Act, and part of one and the same Act, and Act No. 3052
expressly repeals section 1762, and by doing so it repeals section 1770, in so
far as it applies to draft and bovine cattle for the manufacture of serum.
For illustration: Suppose that section 1762 had never been amended by Act No.
3052, and that the Legislature enacted a law expressly repealing the whole
section, how then would section 1770 operate, and to what would it apply, and
how and where would it be in force and effect? There would be nothing to which
it could apply. Section 1770 is absolutely dependent upon section 1762, without
which it cannot be of any force or effect. Both of them are sections of the same
general law, and one is dependent upon the other, hence, when you amend or

repeal section 1762, you modify or repeal section 1770, in so far as it relates to,
or is a part of, section 1762.lawphil.net
Section 1770 is entitled:
Prohibition against bringing of animals from infected foreign countries.
Section 1762, as amended by Act No. 3052, is entitled:
Bringing of animals imported from foreign countries into the Philippine
Islands.
Section 1762, as amended, recites:
That the Director of Agriculture shall in all cases permit the
importation, etc.
The word "importation" has a well-defined meaning, and must have been used
with reference to its legal meaning.
Words and Phrases, volume IV, page 3438, says:
"The literal meaning of "importation" is to bring in with intent to land. It
means a bringing into some port, harbor, or haven, with an intent to
land the goods there. It takes place when the vessel arrives at a port of
entry, intending there to discharge her cargo." (Kidd vs. Flagler [U.S.],
54 Fed., 367, 369; The Mary [U.S.], 16 Fed. Cas., 932, 933.)
Importation is not the making entry of goods at the customhouse, but
merely the bringing them into port; and the importation is complete
before entry at the customhouse. (United States vs. Lyman [U.S.], 26
Fed. Cas., 1024, 1028; Perots vs. United States, 19 Fed. Cas., 258.)
Act Cong. July 1, 1812, c. 112, providing a double duty on all goods,
wares, and merchandise imported into the United States from and after
the passage of the acts, means not only that there shall be an arrival
within the limits of the United States and of a collection district, but
also within the limits of some port of entry. (Arnold vs. United States,
13 U. S. [9 Cranch], 104, 120; 3 L. ed., 671.)
An article is not imported from a foreign country, within the meaning of
the tariff laws, until it actually arrives at a port of entry of the United
States, and the importation is governed by the law in force at the time
of such arrival; and hence under the Treaty of Paris, by which Spain
ceded the Philippine Islands to the United States, and which took effect
by the exchange of ratification and the president's proclamation on
April 1, 1899, which repealed the existing tariff duties on goods

93

brought from those islands, the goods, arriving at a port of entry of the
United States from Philippine ports after its taking effect, were not
subject to duty, although they were shipped before April 11th.
(American Sugar Refining Co. vs. Bidwell [U.S.], 124 Fed., 677,
681.)lawphil.net
Applying this definition, the legislative Act says:
That the Director of Agriculture shall in all cases permit the
importation, etc.
Giving to the word "importation," as used in the Act, its legal meaning, it is the
express duty of the Director of Agriculture to permit the bringing or introduction
of draft cattle and bovine cattle with the ports and harbors of the Philippine
Islands when they are brought here with intent to land. That is the definition
given to the word "importation" by both the Federal and the Supreme Courts of
the United State. That is to say, that in all cases it is the express duty of the
Director of Agriculture to permit the bringing or introduction of draft cattle and
bovine cattle for the manufacture of serum within the jurisdiction, ports and
harbors of the Philippine Islands. If that part of Act No. 3052 does not mean
what it says, it does not mean anything. Again, it must be conceded that the
Legislature of the Philippine Islands has no authority to make or enforce any law
beyond its jurisdiction, and that it never intended to do so.
As the majority opinion states, the case is submitted to the court on the
demurrer of the defendants to the complaint. Hence, all of the material
allegations of the complaint are admitted.
The defendants rely upon Department Order No. 6, as follows:
DEPARTMENT
NO. 6.

ORDER }
}Series
}

of

Owing to the fact that a dangerous communicable disease known as


rinderpest exist in Hongkong, French Indo-China and British India, it is
hereby declared, in accordance with the provisions of section 1770 of
Act No. 2711 (Administrative Code of the Philippine Islands of 1917),
that rinderpest prevails in said countries, and as there is danger of
spreading such disease by the importation of cattle, carabaos, and pigs
therefrom, it shall be unlawful for any person knowingly to ship or bring
into the Philippine Islands any such animal, animal effects, parts, or
products from Hongkong, French Indo-China and British India, unless
the importation thereof shall be authorized under the regulations of the
Bureau of Agriculture.
The provisions of this order shall take effect on and after August 1,
1922.

And Administrative Order No. 21, as follows:


ADMINISTRATIVE
NO. 21.

ORDER }
}
}

Re importation of cattle, carabaos, and pigs from French Indo-China,


Hongkong and India.
1. Pursuant to the provisions of Department Order No. 6, series of
1922, of the Department of Agriculture and Natural Resources, the
present regulations of the Bureau of Agriculture governing the
importation of livestock from French Indo-China and Hongkong are
hereby amended to the effect that the importation of livestock of the
species named in the aforementioned Department Order is hereby
prohibited from French Indo-China, Hongkong and India. However,
animals immunized against rinderpest, for which the importer before
placing his order shall have obtained from the Director of Agriculture a
written permit to import them from the above named countries, may
be allowed entrance into the Philippine Islands.
2. This order shall take effect on and after August 1, 1922.
Hence, you have this situation. You have an Act of the Legislature which says:
"That the Director of Agriculture shall in all cases permit the importation,
bringing or introduction of draft cattle and bovine cattle for the manufacture of
serum," passed by the Legislature in March, 1922, and you have rules and
regulations of a subordinate department of the Government which absolutely
prohibits the importation of draft cattle and bovine cattle for the manufacture
of serum, "unless the importation thereof shall be authorized under the
1922. regulations of the Bureau of Agriculture," and "that the importation of livestock
of the species named in the aforementioned Department Order is hereby
prohibited from French Indo-China, Hongkong and India," and where the
important, before placing his order in a foreign country, shall obtain a written
permit from the Director of Agriculture, and then he may be allowed to import
cattle into the Philippine Islands.
The question is thus squarely presented whether the rules and regulations of a
subordinate department can overthrow and destroy the express provisions of a
legislative Act. It will be noted that Act No. 3052 expressly provides that with
certain limitations and reservations, and with the consent and approval of the
Director of Agriculture and the head of the department, thoroughbred cattle
may be brought into the Islands in limited number for certain purposes. There
are no such restriction or limitations for the bringing in or introduction of draft
and bovine cattle. Under that provision, the Legislature has said in express
terms that the Director of Agriculture shall grant the permit in all cases. If it had
been the purpose and intent of the Legislature to place any restrictions or
limitations upon "the importation, bringing or introduction of draft cattle and

94

bovine cattle for the manufacture of serum," it would have said so, as it did in
the previous provision of the Act for the importation of thoroughbred cattle. But
it is contended that, notwithstanding Act No. 3052, section 1770 is not repealed
and remains in full force and effect.
Upon the question of where and how a statute is repealed, Lewis' Sutherland
Statutory Construction is a recognized as standard authority in all the courts. In
section 247 (vol. I), the author says:
. . . therefore, the former law is constructively repealed, since it cannot
be supposed that the law-making power intends to enact or continue in
force laws which are contradictions. The repugnancy being ascertained,
the later act or provision in date or position has full force, and displace
by repeal whatever in the precedent law is inconsistent with it.
Subsequent legislation repeals previous inconsistent legislation
whether it expressly declares such repeal or not. In the nature of things
it would be so, not only on the theory of intention, but because
contradictions cannot stand together.
"Where the later or revising statute clearly covers the whole subjectmatter of antecedent acts, and it plainly appears to have been the
purpose of the legislature to give expression in it to the whole law on
the subject, the latter is held to be replaced by necessary implication."
An affirmative enactment of a new rule implies a negative of whatever
is not included, or is different; and if by the language used a thing is
limited to be done is a particular form or manner, it includes a negative
that it shall not be done otherwise. An intention will not be ascribed to
the law-making power to establish conflict and hostile systems upon
the same subject, or to leave in force provisions of law by which the
later will of the legislature may be thwarted and overthrown. Such a
result would render legislation a useless and idle ceremony, and
subject the law to the reproach of uncertainly and unintelligibility. (Sec.
249.)
Where a later act grants to an officer or tribunal a part of a larger
power already possessed, and in terms which interpreted by
themselves import a grant of all the power the grantee is intended to
exercise, it repeals the prior act from which the larger power had been
derived. (Sec. 250.)
In the leading case of Gorham vs. Luckett (6 B. Mon., 146), Marshall, J., says:
This is not a case of the re-enactment of a former law in the same
words, or with additional provisions, nor of a regrant of a pre-existing
power to the same or a greater extent. It is not a case of cumulative or
additional power or right or remedy. Nor does it come within the rule
that a subsequent affirmative statute does not repeal a previous one,

which can only apply where both statute can have effect. This is a
formal and express grant of limited power to a depository which
already had unlimited power. And it can have no effect, nor be ascribed
to any other purpose, but that of limiting the extent of the pre-existing
power. If certain provisions of two statutes are identical, the last need
not be construed as repealing, but merely as continuing or re-affirming,
the first, for which there might be various reasons. So, if a statute give
a remedy, or provide that certain acts shall be sufficient for the
attainment or security of certain objects, and a subsequent statute
declare that a part of the same remedy or some of the same acts, or
other acts entirely different, shall suffice for the accomplishment of the
same object, here the latter act does not necessarily repeal the former,
except so far as it may be expressed or implied in the former that the
end shall be attained by no other mode but that which it prescribes. If
there be no such restriction in the first, there is no conflict between
them. Both may stand together with full effect, and the provisions of
either may be pursued.
But if a subsequent statute requires the same, and also more than a
former statute had made sufficient, this is in effect a repeal of so much
of the former statute as declares the sufficient of what it prescribes.
And if the last act professes, or manifestly intends to regulate the
whole subject to which it relates, it necessary supersedes and repeals
all former acts, so far as it differs from them in its prescriptions. The
great object, then is, to ascertain the true interpretation of the last act.
That being ascertained, the necessary consequence is, that the
legislative intention thus decided from, it must prevail over any prior
inconsistent intention to be deduced from a previous act.
. . . The difficulty, or rather the embarrassment in the case, arises from
the fact that a previous law had given to the same grantee unlimited
power on the same subject, and that this twentieth section makes no
reference to the previous law, and contains no express words or
restriction or change, but granting an express and limited power, is
framed as if it were the first and only act on the subject. But do not
these circumstance indicate that it is to be construed as if it were the
only act on the subject? Or shall the first act, which is inferior in
authority so far as they conflict, so far affect the construction of the
last, as to deprive it of all effect? We say the last act must have effect
according to its terms and its obvious intent. And as both cannot have
full operation according to their terms and intent, the first and not the
last act must yield.
Section 1770 was enacted in 1917, and Act No. 3052 in 1922, five years later,
and the rules and regulations sought to be enforced are founded upon section
1770 and were promulgated about five months after Act No. 3052 became a
law. The two sections are not only inconsistent, but there is a direct conflict
between them as to the importation of draft and bovine cattle, especially as to
the promulgated rules and regulations. The Legislature says that as to draft and
bovine cattle, the permit shall be granted in all cases, and defendants say that
we will not grant the permit under any circumstances, unless you comply with

95

the rules and regulations that we have promulgated, which are impossible of
performance, and are in direct conflict with Act No. 3052 of the Legislature.

Legislature says he must grant, and has imposed upon it the performance of
impossible rules and regulations as a condition precedent to the granting of the
permit.

As Lewis' Sutherland says:


. . . therefore, the former law is constructively repealed, since it cannot
be supposed that the law-making power intends to enact or continue in
force laws which are contradictions. The repugnancy being ascertained,
the later act or provision in date or position has full force, and displaces
by repeal whatever in the precedent law is inconsistent with it.
And
Subsequent legislation repeals previous inconsistent legislation
whether it expressly declares such repeal or not. In the nature of things
it would be so, not only on the theory of intention, but because
contradictions cannot stand together.
It must be conceded that any authority of the defendants to promulgated rules
and regulations must be found upon some legislative act, and that in the
absence of legislative authority, the defendants have no right or license to
promulgate any rules and regulations for any purpose. Hence, you have this
situation; that the Legislature in positive and express language has said that
"the Director of Agriculture shall in all cases permit the importation, bringing
and introduction of draft cattle and bovine cattle for the manufacture of
serum," and the defendants have said that we will not comply with the
legislative act, you shall not import cattle until you comply with rules and
regulations which we have made and promulgated, which rules and regulations,
in legal effect, absolutely prohibit the importation of such cattle for any
purpose.
It is not for this court to legislate or to say whether or not Act No. 3052 is a
good law or a bad law. Suffice it to say that it was enacted by the Legislative,
which, to say the least, knows as much about the cattle business in the
Philippine Islands as do the members of this court.
In its petition, the plaintiff offers to comply with all the port, harbor and
quarantine rules and regulations of the Philippine Islands. But it is contended
that they are not sufficient to prevent the spread of disease among the cattle. If
not, they should be amended, and other and more strict quarantine regulations
within the Philippine Islands should be adopted, and the Legislature has the
power to absolutely prohibited the importation of cattle into the Islands for any
and all purposes, which it did in Act No. 3052, except as to certain limitations
and provisions, among which are "that in all cases the Director of Agriculture
shall permit the importation, bringing and introduction of draft cattle and
bovine cattle for the manufacture of serum."

Under the majority opinion, as to the importation of draft and bovine cattle, we
have a government of rules and regulations promulgated by a subordinate of
the government which are in direct conflict with the legislative Act.
By the majority opinion all that portion of Act No. 3052, which says "that the
Director of Agriculture shall in all cases permit the importation, etc.," becomes
a nullity and is overruled by a subordinate branch of the Government. In legal
effect, it holds that, in so far as there is a conflict between them, the provisions
of section 1770 must prevail over the provisions of Act No. 3052. That is not
good law. In so far as there is a conflict, Act No. 3052 should be construed as
repealing section 1770, for the simple reason that Act No. 3052 became a law
about five years after section 1770.
The majority opinion violates every canon of statutory construction. For such
reasons, with all due respect to it, I vigorously dissent.
EN BANC
[G.R. No. 100210. April 1, 1998]
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. OSCAR B.
PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148
and ANTONIO A. TUJAN, respondents.
DECISION
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court,
correct in ruling that Subversion is the main offense in a charge of Illegal
Possession
of
Firearm
and Ammunition
in
Furtherance of
Subversion under P.D. No. 1866, as amended, and that, therefore, the said
charge should be quashed in view of a previous charge of Subversion under
R.A. No. 1700, as amended by P.D. No. 885, against the same accused pending
in another court?
Stated differently, is the accused charged with the same offense in both
cases, which would justify the dismissal of the second charge on the ground of
double jeopardy?

Under the facts alleged, the petitioner has brought itself squarely within those
provisions and the Director of Agriculture has denied him the permit which the

96

This is the pith issue presented before us in this appeal


by certiorari interposed by the People under Rule 45 of the Revised Rules of
Court, seeking a review of the decision[1] of the Court of Appeals (Sixteenth
Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled THE PEOPLE OF
THE PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of
Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN, Respondents.
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with
Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as
amended, before the Regional Trial Court of Manila (Branch 45), National
Capital Region, docketed as Criminal Case No. 64079. [2] As a consequence
thereof, a warrant for his arrest was issued on July 29, 1983, [3] but it remained
unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was
arrested on the basis of the warrant of arrest in the subversion case. [4] When
arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live
ammunition were found in his possession.[5]
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
Presidential Decree No. 1866, as amended, before the Regional Trial Court of
Makati (Branch 148), docketed as Criminal Case No. 1789. The Information
reads:
That on or about the 5th day of June, 1990, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being a member of a
communist party of the Philippines, and its front organization, did then
and there willfully, unlawfully and feloniously have in his possession,
control and custody, in furtherance of or incident to, or in connection
with the crime of subversion, a special edition ARMSCOR PHILS. caliber
.38 special revolver with Serial No. 1026387 and with six (6) live
ammunitions, without first securing the necessary license or permit
thereof from competent government authority. [6]
The above Information recommended no bail for Antonio Tujan, which
recommendation was approved by the trial court in an Order dated June 19,
1990.[7] The same order also directed the continued detention of Antonio Tujan
at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines
(ISAFP), Bago Bantay, Quezon City, while his case is pending.

On June 26, 1990, Antonio Tujan, through counsel, filed a


motion[8] invoking his right to a preliminary investigation pursuant to Section 7,
Rule 112 of the Revised Rules of Court and praying that his arraignment be held
in abeyance until the preliminary investigation is terminated.
However, on June 27, 1990, during the hearing of Antonio Tujans motion
for preliminary investigation, his counsel withdrew the motion since he would
file a motion to quash the Information, for which reason counsel requested a
period of twenty (20) days to do so. This was granted by the trial court on that
same day.[9]
On July 16, 1990, Antonio Tujan did file the motion to quash [10] the
Information in Criminal Case No. 1789 on the ground that he has been
previously in jeopardy of being convicted of the offense charged in Criminal
Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch
45). The said ground is based on Sections 3 (h) and 7, Rule 117 of the 1985
Rules on Criminal Procedure. In support of the motion, Antonio Tujan contends
that common crimes such as illegal possession of firearms and ammunition
should actually be deemed absorbed in subversion, [11] citing the cases
of Misolas vs. Panga, et al. (G. R. No. 83341, January 30, 1990, 181 SCRA 648)
and Enrile vs. Salazar, et al. (G. R. No. 92163, June 5, 1990, 186 SCRA
217). Antonio Tujan then avers that the present case is the twin prosecution of
the earlier subversion case and, therefore, he is entitled to invoke the
constitutional protection against double jeopardy. [12]
The petitioner opposed[13] the motion to quash, arguing that Antonio Tujan
does not stand in jeopardy of being convicted a second time because: (a) he
has not even been arraigned in the subversion case, and (b) the offense
charged against him in Criminal Case No. 64079 is for Subversion, punishable
under Republic Act No. 1700; while the present case is for Illegal Possession of
Firearm and Ammunition in Furtherance of Subversion, punishable under a
different law (Presidential Decree No. 1866). Moreover, petitioner contends that
Antonio Tujans reliance on the Misolas and Enrile cases is misplaced.[14] Tujan
merely
relies
on
the
dissenting
opinions in the Misolas case. Also,
the Enrile case which involved a complex crime of rebellion with murder is
inapplicable to the instant case which is not a complex offense. Thus, the
absorption rule as held applicable in the Enrile ruling has no room for
application in the present case because (illegal) possession of firearm and
ammunition is not a necessary means of committing the offense of subversion,
nor is subversion a necessary means of committing the crime of illegal
possession of firearm and ammunition.[15]

97

The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion of the
order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED,
but only in so far as the accused may be placed in jeopardy or in danger
of being convicted or acquitted of the crime of Subversion and as a
consequence the Information is hereby quashed and the case dismissed
without prejudice to the filing of Illegal Possession of Firearm.

On the other submissions by the prosecution, that the possession of firearms


and ammunitions is not a necessary means of committing the offense of
subversion or vice versa, then if the court follows such argument, there could
be no offense of Illegal Possession of Firearm and Ammunition in furtherance of
Subversion, for even the prosecution admits also that in subversion which is an
offense involving propaganda, counter propaganda, a battle of the hearts and
mind of the people does not need the possession or use of firearms and
ammunitions.
The prosecution even admits and to quote:

SO ORDERED.[16]
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxxxxxxxx
In other words, the main offense the accused is being charged in this
case is also Subversion considering that the alleged Illegal Possession
of the Firearm and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by the
Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is just
a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution
that this case is very different from the other case and that double jeopardy will
attach in this particular case.
This court agrees with the position taken by the defense that double jeopardy
will attach to the accusation of subversion, punishable now under Republic Act
1700, as Rule 117 of the Rules of Court particularly Section 1 thereof, provides:
Time to move to quash- At any time before entering his plea, the accused may
move to quash the complaint or information.(1a)
In other words, there is no necessity that the accused should be arraigned first
before he can move to quash the information. It is before he pleads which the
accused did in this case.

The defense of double jeopardy, while unquestionably available to the accused,


had not been clearly shown to be invokable(sic) at this point in time.
But the rule says otherwise as previously stated as provided for under Section 1
of Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and
ammunition which is separate and distinct from the crime of
subversion and is not a necessary ingredient thereof and the court
believed so, the prosecution will have to file another information as
they may wish. The court therefore has to grant the motion to quash
on the aforestated grounds, subject to Section 5 of Rule 117,
considering that the only offense to which the accused in this case
may be placed in jeopardy is Subversion and not Illegal Possession of
Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days
from receipt of this order otherwise the court will order the release of the
accused, unless he is in custody for some other offense. [17](Emphasis ours)
Petitioners motion for reconsideration [18] was also denied in an order dated
December 28, 1990.[19]
The petitioner elevated the case to the Court of Appeals through a petition
for certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate court
found that the trial court did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in quashing the questioned
Information. In dismissing the petition, the appellate court, in its decision dated
May 27, 1991, basically reiterated the aforequoted ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the
Court of Appeals is not in accord with the law and applicable jurisprudence; and

98

(2) it was deprived of due process to prosecute and prove its case against
private respondent Antonio Tujan in Criminal Case No. 1789.

entity, who shall willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity to be used by any person or persons found
guilty of violating the provisions of the preceding paragraphs.

We agree with the petitioner.


The Court of Appeals considered as duplicitous the Information for
violation of P.D. No. 1866 filed against private respondent Antonio Tujan. It
ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion) filed before the Makati court shows that the main
case is subversion considering that there is an allegation that the alleged illegal
possession of firearms was made in furtherance of or incident to, or in
connection with the crime of subversion. Also, the information alleged likewise
that the accused is a member of a communist party of the Philippines and its
front organization. Basically, the information refers to the crime of Subversion
qualified by Illegal Possession of Firearms. x x x.[20]
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is
charged in Criminal Case No. 1789 before the Regional Trial Court of Makati
(Branch 148), provides as follows:
Section
1. Unlawful Manufacture,
Sales,
Acquisition,
Disposition
or Possession of Firearms or Ammunition or Instruments Used or Intended
to be Used in the Manufacture of Firearms or Ammunition. The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms, the
penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion,
the penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation or

The penalty of prision mayor shall be imposed upon any person who shall carry
any licensed firearm outside his residence without legal authority therefor.
(Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under
the first paragraph of Section 1, the mere possession of an unlicensed
firearm or ammunition is the crime itself which carries the penalty
of reclusion temporal in its maximum period to reclusion perpetua. The third
paragraph of the same Section makes the use of said firearm and ammunition
in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion a circumstance to increase the penalty to death.
Thus, the allegation in the Information in Criminal Case No. 1789 that the
unlicensed firearm found in the possession of Antonio Tujan, a member of the
communist party of the Philippines and its front organization, was used in
furtherance of or incident to, or in connection with the crime of
subversion does not charge him with the separate and distinct crime of
Subversion in the same Information, but simply describes the mode or
manner by which the violation of Section 1 of P.D. No. 1866 was
committed[21] so as to qualify the penalty to death.
There is, therefore, only one offense charged in the questioned
information, that is, the illegal possession of firearm and ammunition,
qualified by its being used in furtherance of subversion. [22] There is nothing in
P.D. No. 1866, specifically Section 1 thereof, which decrees categorically or by
implication that the crimes of rebellion, insurrection or subversion are the very
acts that are being penalized. This is clear from the title of the law itself which
boldly indicates the specific acts penalized under it:
CODIFYING
THE
LAWS
ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING
IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR
EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS,
AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES.
(Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan
in Criminal Case No. 64079, before the Regional Trial Court of Manila (Branch
45), is based on a different law, that is, Republic Act No. 1700, as
amended. Section 3 thereof penalizes any person who knowingly, wilfully and

99

by overt act affiliates with, becomes or remains a member of a subversive


association or organization x x x. Section 4 of said law further penalizes such
member [of the Communist Party of the Philippines and/or its successor or of
any
subversive
association]
(who)
takes
up
arms
against
the
Government. Thus, in the present case, private respondent Antonio Tujan could
be charged either under P.D. No. 1866 or R.A. No. 1700, [23] or both.
This leads us to the issue of whether or not private respondent Antonio
Tujan was placed in double jeopardy with the filing of the second Information for
Illegal Possession of Firearm and Ammunition in Furtherance of Subversion.

xxxxxxxxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the
benefit of an accused, the following requisites must have obtained in
the first criminal action: (a) a valid complaint or information; (b) a competent
court; (c) the defendant had pleaded to the charge; [24] and (d) the defendant
was acquitted, or convicted, or the case against him was dismissed or
otherwise terminated without his express consent. [25]

We rule in the negative.


Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act. (Emphasis ours)

Suffice it to say that in the present case, private respondents motion to


quash filed in the trial court did not actually raise the issue of double jeopardy
simply because it had not arisen yet. It is noteworthy that the private
respondent has not even been arraigned in the first criminal action for
subversion. Besides, as earlier discussed, the two criminal charges against
private respondent are not of the same offense as required by Section 21,
Article III of the Constitution.

Complementing the above constitutional provision, Rule 117 of the


Revised Rules of Court states:

It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus should be
reversed.

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has


been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the
former complaint or information.

While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition in
furtherance of subversion under P.D. No. 1866, as amended, can co-exist,
the subsequent enactment of Republic Act No. 7636 on September 22,
1992, totally repealing R.A. No. 1700, as amended, has substantially changed
the complexion of the present case, inasmuch as the said repealing law being
favorable to the accused-private respondent, who is not a habitual delinquent,
should be given retroactive effect.[26]

x x x x x x x x x.
The right of an accused against double jeopardy is a matter which he may
raise in a motion to quash to defeat a subsequent prosecution for
the same offense. The pertinent provision of Rule 117 of the Revised Rules of
Court provides:
SEC. 3. Grounds. The accused may move to quash the complaint or information
on any of the following grounds:

Although this legal effect of R.A. No. 7636 on private-respondents case has
never been raised as an issue by the parties obviously because the said law
came out only several months after the questioned decision of the Court of
Appeals was promulgated and while the present petition is pending with this
Court we should nonetheless fulfill our duty as a court of justice by applying the
law to whomsoever is benefited by it regardless of whether or not the accused
or any party has sought the application of the beneficent provisions of the
repealing law.[27]
That R.A. No. 7636 should apply retroactively to accused-private
respondent is beyond question. The repeal by said law of R.A. No. 1700, as

100

amended, was categorical, definite and absolute. There was no saving clause in
the repeal. The legislative intent of totally abrogating the old anti-subversion
law is clear. Thus, it would be illogical for the trial courts to try and sentence
the accused-private respondent for an offense that no longer exists. [28]

WHEREFORE, the assailed decision of the Court of Appeals dated May 27,
1991, in CA-G.R. SP No. 24273, including the orders dated October 12, 1990
and December 28, 1990 of the Regional Trial Court of Makati (Branch 148),
National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and
SET ASIDE.

As early as 1935, we ruled in People vs. Tamayo:[29]


There is no question that at common law and in America a much more
favorable attitude towards the accused exists relative to statutes that have
been repealed than has been adopted here. Our rule is more in conformity with
the Spanish doctrine, but even in Spain, where the offense ceases to be
criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296)
(Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act
which was penalized by a prior law ceases to be criminal under the new law,
the previous offense is obliterated. [30] It is a recognized rule in this jurisdiction
that a total repeal deprives the courts of jurisdiction to try, convict and
sentence persons charged with violation of the old law prior to the repeal. [31]

The subversion charge against accused-private respondent Antonio A.


Tujan in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch
45, is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition in
furtherance of subversion against the same accused in Criminal Case No. 1789
of the Regional Trial Court of Makati, Branch 148, is DEEMED AMENDED
to Simple Illegal Possession of Firearm and Ammunition. The accusedappellant is hereby ordered RELEASED IMMEDIATELY from detention for the
reason stated above, unless he is being detained for any other offense.
This decision is IMMEDIATELY EXECUTORY.
No pronouncement as to costs.

With the enactment of R.A. No. 7636, the charge of subversion against the
accused-private respondent has no more legal basis and should be dismissed.

SO ORDERED.

As regards the other charge of illegal possession of firearm and


ammunition, qualified by subversion, this charge should be amended to simple
illegal possession of firearm and ammunition since, as earlier discussed,
subversion is no longer a crime.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

Moreover, the offense of simple illegal possession of firearm and


ammunition is now bailable under Republic Act No. 8294 which was enacted on
June 6, 1997. R.A. No. 8294 has amended Presidential Decree No. 1866, as
amended, by eliminating the provision in said P.D. that if the unlicensed firearm
is used in furtherance of subversion, the penalty of death shall be imposed.
[32]
Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal
possession of firearm (.38 caliber) is now reduced to prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos
(P15,000.00).[33] The reduced penalty of imprisonment - which is four (4) years,
two (2) months and one (1) day to six (6) years - entitles the accused-private
respondent to bail. Considering, however, that the accused-private respondent
has been detained since his arrest on June 5, 1990 up to the present (as far as
our record has shown), or more than seven (7) years now, his immediate
release is in order. This is so because even if he were convicted for illegal
possession of firearm and ammunition, the length of his detention while his
case is pending has already exceeded the penalty prescribed by the new law.

G.R. No. L-18535

August 15, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
VENANCIO CONCEPCION, defendant-appellant.
Hartigan
and
Welch,
and
Recaredo
Attorney-General Villa-Real for appellee.

M.a

Calvo

for

appellant.

STATEMENT
February 4, 1916, the Legislature of the Philippine Islands passed Act No. 2612,
known as the charter of the Philippine National Bank, under which it was
organized with plenary powers and a capital stock of P20,000,000 divided into
200,000 shares of the par value of P100 each, 101,000 of which to be

101

subscribed, owned and held by the Government, and the remainder by private
persons.
Section 37 provides:
The National Bank shall never at any time, under any circumstances,
directly or indirectly grant to any individual, company of individuals,
firm, corporation, Insular, provincial or municipal government any real
estate mortgage loan exceeding the sum of fifty thousand pesos, or
any other loan exceeding the sum of three hundred thousand pesos.

Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
January 30, 1921, the Legislature passed Act No. 2938 entitled "An Act to
amend Act Numbered Twenty-six hundred and twelve, entitled 'An Act creating
the Philippine National Bank,' as amended by Act Numbered Twenty-seven
hundred and forty-seven."
It also provides:

Section 38 provides:
The National Bank shall not directly or indirectly grant loans to any of
the members of the board of directors of the bank nor to agents of the
branch banks. Said National Bank is hereby prohibited from making
any loan directly or indirectly in excess of one thousand pesos to any
member of the Philippine Legislature or to any official or employee of
the Insular, provincial, or municipal governments except upon
satisfactory real estate security.
Section 53:
Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
February 20, 1918, the Legislature passed Act No. 2747, entitled "An Act to
amend in certain particulars Act Numbered Twenty-six hundred and twelve,
entitled 'An Act creating the Philippine National Bank,' which provides:"
In order to explain certain provisions, increase the stability of the
institution, and extend its powers, Act Numbered Twenty-six hundred
and twelve, entitled "An Act creating the Philippine National Bank," is
hereby amended in certain particulars, so that hereafter the said Act
shall read as follows:
Section 35 of which provides:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank nor to agents of the
branch banks.
Section 49:

Act Numbered Twenty-six hundred and twelve, entitled "An Act creating
the Philippine National Bank, as amended by Act Numbered Twentyseven hundred and forty-seven, is hereby amended in certain
particulars, so that hereafter the said Act shall read as follows:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors, the general manager, assistant
general manager, and employees of the bank, nor to agents or
employees of the branch banks, and no loan shall be granted to a
corporation, partnership or company wherein any member of the board
of directors is a shareholder, agent or employee in any manner, except
by the unanimous vote of the members of the board, excluding the
member interested: Provided, That the total liabilities to the Bank of
any corporation wherein any of the members of the board of directors
is a shareholder, agent or employee in any manner, shall at no time
exceed ten per centum of the surplus and paid-up capital of the Bank.
All Acts or parts of Acts inconsistent or incompatible with the provisions
of this Act are hereby repealed.
Section 43:
Any member of the board of directors of the National Bank who
knowingly violates or knowingly permits any of the officers, agents, or
servants of the Bank to violate any of the provisions of this Act, and
any officer, employee, agent, or servant of the Bank who violates any
of the provisions of this Act and any person aiding and abetting the
violations of any of the provisions of this Act, shall be punished by a
fine not to exceed ten thousand pesos or by imprisonment not to
exceed five years or by both such fine and imprisonment.
At all of the material times hereinafter stated, the defendant, Venancio
Concepcion, was the duly elected, qualified and acting President of the
Philippine National Bank, which was organized and continued to exist under the
respective legislative acts.

102

June, 1918, what is known in the record as the Binalbagan Estate, Inc., was
organized by the agriculturists in the provinces of Occidental Negros and Iloilo,
with a capital stock of P10,000. Its primary purpose was to foster the
manufacture and refinement of centrifugal sugar and its by-products. Only
P2,500 of the capital stock was paid, and, for a long time, little, if anything, was
done. In 1920 its corporate interests were acquired by Phil. C. Whitaker and the
defendant, who reorganized the company with a capital stock of P500,000
divided into 5,000 shares of the par value of P100 each, out of which Whitaker
was issued a certificate for 1,865 shares and the defendant 1,615 shares, and
the firm of Puno, Concepcion and Co. a certificate for 250 shares, and the
remainder to other and different persons. In the month of November, 1910, the
capital stock was increased to P1,500,000, and 6,053 shares of stock were
issued to the defendant, portions of which he transferred to other persons,
among whom were his immediate relatives. Notwithstanding the fact that the
original capital stock was for P10,000, and that it was increased to P500,000
and again to P1,500,000, there is no registered document in the Bureau of
Commerce and Industry in either case showing the increase of the capital stock
of the estate.
January 30, 1920, Whitaker, Luzuriaga, and the defendant entered into an
agreement as partners to acquire and operate what is known as the "Palma"
sugar central and hacienda in the municipality of Ilog, Occidental Negros, a
short distance from the property of the Binalbagan Estate. Under this
agreement, Whitaker and the defendant were to each have 40 per cent and
Luzuriaga 20 per cent. Concurrent therewith, the three entered into another
agreement with Salvador Serra for the sale and purchase of his business known
as central and hacienda "Palma" at an agreed price of P1,500,000, P150,000 of
which was to be paid on or before June 30, 1920, when the property was to be
actually conveyed, and to assume a mortgage on the property for P600,000,
the remainder to be paid in three installments of P250,000 each, respectively,
on or before June 30, 1921, 1922, and 1923. January 29, 1920, this contract
was duly signed by all of the respective parties, and was duly witnessed and
acknowledged before a notary public.
On January 10, 1919, Salvador Serra executed a mortgage upon all of this
property in favor of the Philippine National Bank for P600,000, which was then
owned and held by the bank, and in full force and effect.
On July 17, 1920, in the office of the Philippine National Bank and in the
presence of the defendant and Whitaker, and in accord with the terms and
provisions of the instrument of January 29, 1920, Salvador Serra made,
executed and delivered a deed of conveyance of the property described in the
contract of January 29, 1920, and at the same time and place, and as a part of
the transaction, Whitaker delivered to Salvador Serra the check of the
Binalbagan Estate drawn upon the Philippine National Bank for P750,000, which
was honored and paid by the bank, and out of which it satisfied the mortgage,
which it then held on the "Palma" hacienda, for P600,000 with accrued interest
amounting to P26,218.66, and gave Salvador Serra credit in his current account
in its branch at Iloilo for P123,781.34, making a total of P750,000, which the
defendant and his associates had agreed to pay under the contract of January
29, 1920, thus consummating the deal.

On July 17, 1920, the Binalbagan Estate was indebted to the Philippine National
Bank more than P3,000,000, and did not have the money with which to pay the
check of P750,000. To provide the necessary funds, it executed its promissory
note payable on sight for that amount to the Philippine National Bank, which
was presented to Vicente Gaskell, then in charge of loans and discounts, who in
turn presented the note to the defendant for his approval, and the defendant
then and there approved the loan to the estate, and initialed the note "V. C."
which was his customary and usual method of approving loans, and after the
defendant approved the loan, the check of the Binalbagan Estate for P750,000
was honored by the bank, and the account of the Binalbagan Estate was then
credited with the amount of P750,000.
In his weekly report of July 22, it appears that Gaskell made a report of the
P750,000 loan to the Binalbagan Estate, but that no specific mention was made
of the loan by the defendant in his report, and that no record of the loan was
made in the corporate minutes of the Board of Directors as of July 23, 1920.
By the provisions of Act No. 2938, the capital stock of the bank was increased
from P20,000,000 to P50,000,000.
Following an investigation, an information was filed in the Court of First Instance
against the defendant, which was later amended, charging him, as President of
the Bank, with a violation of the provisions of section 35 as it relates to section
49 of Act No. 2747 of the Philippine Legislature above quoted. In substance,
and to the effect that, through the commission of such acts and in the making
of the loan of P750,000 to the Binalbagan Estate, the defendant was guilty of a
violation of section 35, and should be punished under section 49 of Act No.
2747. Upon this charge, he was arraigned, tried, convicted and sentenced to
two years of imprisonment and to pay a fine of P5,000 and costs, from which
the defendant appeals and assigns the following errors:
I. The trial court erred in overruling the demurrer interposed by the defense on
the ground that the facts alleged in the complaint do not constitute a violation
of Act No. 2747.
II. The trial court likewise erred in overruling the motion for dismissal,
interposed by the defense, on the ground that the prosecution has not proved
the essential facts alleged in the complaint.
III. The trial court likewise erred in not ordering the striking out of the hearsay
testimony of the witnesses for the prosecution, notwithstanding the petition of
the defense, as well as in permitting the fiscal to ask leading questions on
incompetent, immaterial and irrelevant facts, to the witnesses for the
prosecution, and the latter to answer said questions which were objected to by
the defense.
IV. The court likewise erred in admitting as proof Exhibits B, C, D, E, F, F-1, G, H,
K, L, P, V-15, X, Y, Y-1, AA, BB, CC, DD, FF, GG, GG-1, HH, HH-1 to HH-12, JJ, JJ-1,
and JJ-2 of the prosecution, notwithstanding that they were objected to by the

103

defense as being incompetent, irrelevant, and immaterial, for they are not the
best proof and not having been duly authenticated.

loan granted on said date and not on the date on which the credit contract was
perfected.

V. The trial court likewise erred in declaring that about the first months of the
year, 1920, a great portion of the interests of the Binalbagan Estate, Inc., was
acquired by Phil. C. Whitaker and the accused, V. Concepcion.

XV. The lower court lastly erred in finding the accused guilty of the violation
with which he is charged in the complaint, sentencing him to two years of
imprisonment, and to pay a fine of P5,000 and costs of the action.

VI. The lower court likewise erred in declaring that the firm of Puno, Concepcion
and Co., Ltd., is exclusively composed of the accused and the members of his
family.
VII. The lower court also erred in declaring that the writing executed on January
29, 1920, by Salvador Serran, the owner of the hacienda and the central
"Palma" in favor of Whitaker, Concepcion, and Luzuriaga was an option and not
a purchase and sale.

JOHNS, J.:

IX. The lower court likewise erred in declaring that the limit of the credit allowed
by the National Bank to the Binalbagan Estates, Inc., in the week which
terminated on the 22d of July, 1920, was P3,660,000.

There is a clear and correct analysis of the facts in the exhaustive opinion of the
trial court, and there is but little, if any, dispute about any of the material facts.
The testimony is conclusive that the defendant either owned or controlled
about 40 per cent of the capital stock of the Binalbagan Estate, which, at the
time of the above transaction, was indebted to the Philippine National Bank
more than P3,000,000. That the bank then owned and held a first mortgage lien
upon the "Palma" property for P600,000, which it satisfied and discharged out
of the proceeds of the check of Binalbagan Estate for P750,00. That is to say, as
a result of the transaction, the bank satisfied its mortgage lien for P600,000
with accrued interest, and in lieu thereof took and accepted the unsecured
promissory note of Binalbagan Estate for P750,000, and, including the amount
of that note, the total indebtedness to the bank then amounted to
P3,952,672.77.

X. The lower court likewise erred in declaring that the Binalbagan Estate, Inc.,
had been obtaining credits from the Philippine National Bank for various
amounts, against which it was obtaining loans for amounts which at times were
included in the total sum of the credit allowed, and at times exceeded the limit
of said credit.

The testimony is also conclusive that the P750,00 loan was personally approved
by the defendant, and was made upon his personal responsibility, and that, so
far as it appears in the record, no other officer or director was ever consulted
about the transaction or the making of the loan at any time prior to its
consummation.

XI. The lower court likewise erred in not declaring that the concession by the
Philippine National Bank to the Binalbagan Estate, Inc., of P750,000 on July 17,
1920, has been made with the unanimous consent of the members of the Board
of Directors of the bank.

The testimony is also conclusive that on the very day that the note was
presented to the bank by the Binalbagan Estate, the loan was consummated,
and the amount of it was placed to the credit of the Binalbagan Estate, which in
turn drew its check for the full amount of the loan, which was honored by the
bank when presented.

XII. The lower court likewise erred in declaring contrary to section 10 of Act No.
2612, as amended by Act No. 2938, that the obligations contracted with the
National Bank by virtue of the discount of negotiable papers, bills of exchange,
and promissory notes, are loans.

In this connection, it will be noted that the capital stock of the bank was then
P20,000,00, and the total amount of the indebtedness of Binalbagan Estate to
the bank was P3,952,672.77.

VII. The lower court likewise erred in declaring that at the time in which the
Binalbagan Estate, Inc., drew the check for P750,000 in favor of Salvador
Serran, the same had obtained from the National Bank, under the signature
and authorization of its president, the accused herein, several credits,
overdrafts and loans, which amounted to several millions of pesos.

XIII. The lower court also erred in declaring that the opinion of the Insular
Auditor, the ex-officio Auditor of the Bank, cannot in any manner serve as a
standard of conduct for the officers of the bank.
XIV. The lower court likewise erred in declaring that the sum of P750,000 given
to the Binalbagan Estate, Inc., by the National Bank on July 17, 1920, was a

Section 35 of Act No. 2747 provides:


The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank nor to agents of the
branch banks.

104

Section 37 of Act No. 2612, above quoted, limits the amount of any real estate
mortgage loan to P50,000 or any other loan to P300,000. There is no such
limitation in Act No. 2747, and in so far as it is material to this opinion, section
38 of Act No. 2612 is identical with section 35 of Act No. 2747.

he was a member, and that it was done through the direction, permission,
advice, and procurement of the defendant.

Defendant's counsel ably and adroitly contend that the limitation provided for
in the act is upon the bank itself, and that it does not apply to the defendant, as
President of the Bank.

We are of opinion the statute forbade the loan to his copartnership firm
as well as to himself directly. The loan was made indirectly to him
through his firm. . . .

The bank is a corporation organized by special act of the Legislature, and it


could only act or operate through its officers and board of directors. While the
corporation itself might be made subject to a fine for a criminal offense, it could
not be imprisoned, and it will be noted that section 53 of the original Act, which
is identical with the other two Acts, says:

An appeal was taken, and the lower court was affirmed in (206 N. Y. 373), and
the case is reported in 11 Am. Ann. Cases, p. 243, in which the syllabus says:

Any person who shall violate any of the provisions of this Act shall be
punished by a fine not to exceed ten thousand pesos, or by
imprisonment not to exceed five years, or by both such fine and
imprisonment.
The limitation in Section 35 of Act No. 2747 says:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors of the bank not to agents of the
branch banks.
And section 53 of Act No. 2612 says:
Any person who shall violate any of the provisions of this Act, etc.," and
provides for a fine or imprisonment or both, and it must be conceded
that the bank itself could not be imprisoned for a violation of section
35.
It is very apparent that section 35 was intended to prohibit the making of any
loan by the bank to an officer or director of the bank.
It is also claimed that the loan to the defendant within the meaning of section
35. He was the President and active Manager of the Bank, and was the owner
and had under his control about 40 per cent of the capital stock of the
Binalbagan Estate, which was also a corporation, which was then indebted to
the bank more than 15 per cent of the capital stock of the bank. With P750,000
loan, its idebtedness to the bank amounted to very little less than 20 per cent
of the capital stock of the bank.
Upon that question, the case of People vs. Knapp (132 N.Y. Supp., 747), is
square in point. There, third count of the indictment charged the defendant with
violating subdivision 11 of section 186 of the banking law in the making of a
loan to him as director by a loaning of the money to the copartnership of which

The court said:

The prohibition in a statute forbidding a corporation to do an act


extends to the board of directors and to each director separately and
individually.
And the opinion says:
As to the remaining counts the defendant insists that the command
that a corporation shall not do a certain act is not a command that he
directors shall not do the act. A corporation, however, is a mere
conception of the legislative mind. It exists only on paper through the
command of the legislature that its mental conception shall be clothed
with power. All its power resides in the directors. Inanimate and
incapable of thought, action or neglect, it cannot hear or obey the
voice of the legislature except through its directors. It can neither act
nor omit to act except through them. Hence a command addressed to
a corporation would be idle and vain unless the legislature in directing
the corporate body, acting wholly by its directors, to do a thing
required or not to do a thing prohibited, meant that the directors
should not make or cause the corporation to do what was forbidden, or
omit to do what was directed. We think, as the appellate division held,
that when the corporation itself is forbidden to do an act, the
prohibitions extends to the board of directors and to each director,
separately and individually.
. . . The Banking Law should be construed in accordance with the
obvious intention of the legislature so as to permit flexibility and to
prevent looseness in doing business. The prime object is to protect the
public, including depositors, and after that to enable the stockholders
to secure a fair return from their investment. Banking institutions are
not created for the benefit of the directors. While directors have great
powers as directors, they have no special privileges as individuals.
They cannot use the assets of the bank for their own benefit except as
permitted by law. Stringent restrictions are placed about them so that
when acting both for the bank and for one of themselves at the same
time, they must keep within certain prescribed lines regarded by the
legislature as essential to safety in the banking business.

105

The only difference as to the facts is that, there, the money was loaned to a
copartnership of which the defendant was a member, and, here it is loaned to a
corporation of which the defendant was one of the heaviest stockholders. Here,
good faith on the part of the defendant and sound banking would not permit
the personal satisfaction by him, as President of the Bank, of a first mortgage
loan of P600,000, and the taking in lieu thereof, and as a substitute therefor, of
the unsecured promissory note of the Binalbagan Estate in which he owned and
controlled at least 40 per cent of its capital stock and it is very apparent that
the defendant would never have authorized the loan of P750,000, or satisfied
the mortgage of P600,000, if he had not been a heavy stockholder in the
Binalbagan Estate. The fact that he was such a stockholder was one of the main
inducements and the primary consideration for his approval of the transaction.
It will be noted that section 35 of Act No. 2747 does not contain any exception
or proviso, and that section 29 of Act No. 2938, which was enacted in 1921,
says:
The National Bank shall not, directly or indirectly, grant loans to any of
the members of the board of directors, the general manager, assistant
general manager, and employees of the Bank, nor to agents or
employees of the branch banks, and no loan shall be granted to a
corporation, partnership or company wherein any member of the board
of directors is a shareholder, agent or employee in any manner, except
by the unanimous vote of the members of the board, excluding the
member interested: Provided, That the total liabilities to the Bank of
any corporation wherein any of the members of other board of
directors is a shareholder, agent or employee in any manner, shall at
no time exceed ten per centum of the surplus and paid-up capital of
the bank.
This section was enacted in 1921, and section 35 above quoted was enacted in
1918, and section 42 of Act No. 2938 expressly provides that:
All Acts or parts of Acts inconsistent or incompatible with the provisions
of this Act are hereby repealed.
Defendant's counsel vigorously contend that the P750,000 loan to Banalbagan
Estate was reported to, and approved by, the Board of Directors; that section
35 of Act No. 2747 was repealed, and that section 29 of Act No. 2939 is the law
under which the defendant should be prosecuted.

Construing section 29, the record here is conclusive that the defendant, acting
and representing the bank, personally made and consummated the loan, and
that upon his personal advice and instructions, the check was paid, and that
personally, as President, he satisfied the mortgage for P600,000. He not only
authorized the making of the loan, but made the loan himself without the
consent or the authority of the Board of Directors, and the loan was
consummated, and the bank parted with the money without the knowledge of
the Board of Directors. It was a completed transaction. There is a marked
difference between the authority of the president of the bank to promise or
negotiate a loan and the making of the loan itself.
Section 29 of Act No. 2938 contemplates that no loan shall ever be made to any
officer o the bank until such time as it is submitted to, and approved by, the
unanimous vote of the Board of Directors, excluding the applicant for the loan.
But, here, the loan was consummated and the transaction was completed
several days before it was ever brought to the knowledge or attention of the
directors, and, even assuming that they did ratify a loan of that character, it
would not constitute a defense. The law was violated in the making and
consummation of the loan without the knowledge or consent of the Board of
Directors. If the Binalbagan Estate had applied to the defendant, as President of
the Bank, for the loan in question, and if, upon its receipt, he had submitted the
application to the Board of Directors recommending the loan, and acting upon
his advice the Board had approved the loan, and the loan had been made after
such approval by the board, another and different question would have been
presented, and there would have been merit in such a defense, but that is not
this case.
Even under section 29, the consent and approval of the Board of Directors was
a condition precedent to the making of the loan in question, and the fact that
the Board of Directors a few days after the offense was committed may have
approved it would not be a defense to the commission of the crime. In other
words, assuming that the Board of Directors did approve of a violation of the
law, it would not aid the defendant. He was occupying a position of special trust
and confidence, and was the president and head of the most important
financial institution in the whole Philippine Islands. His powers and duties were
defined and described in the corporate charter of the bank. It was organized
under a special act, and the Government itself subscribed for, and was the
owner of, the majority of its capital stock. It was the purpose and intent to
make it a conservative, strong and safe bank, and numerous provisions were
made in the Act for its safety an stability, among which was section 35 of Act
No. 2747.
Here, you have the President of the Bank upon his own initiative and his sole
approval authorizing, making and perfecting a loan of P750,000 to a
corporation in which he owned and controlled 40 per cent of its capital stock. It
was never the purpose or intent of the corporate charter that any officer of the
bank should have, assume or exercise any such arbitrary or autocratic power.

106

It is worthy of note that the material provisions of the law prohibiting a loan to
an officer of the bank are almost identical in each legislative act. Also, that the
punishment for a violation is the same in each Act.
Hence, we must assume that at all times, it was the purpose and intent of the
Legislature that no loan should ever be made by the bank to any officer or
director, except under the express provisions of the law.
The loan was maid while Act No. 2747 was in force and effect and before the
passage of Act No. 2938, and appellant's counsel vigorously contend that Act
No. 2747 was repealed by Act No. 2938, and appellant's counsel vigorously
contend that Act No. 2747 was repealed by Act No. 2938, and that the repeal of
the one and the enactment of the other operated as a release and discharge of
all crime which were committed prior to the passage of Act No. 2938. In other
words, that the Act of the Legislature released the defendant of any crime
which he may have committed prior to January, 1921.
We do not believe that it was ever the purpose or intention of the Legislature to
release anyone from a crime committed under either one of the Acts, and, in
particular, as to the offense described in the information. As stated upon the
question here involved, each one of the legislative acts expressly prohibits the
bank from loaning any of its money to an officer or director, and the only
difference is found in the latter portion of section 29 of Act No. 2938, which,
upon the undisputed facts, is not material to the question involved here.
Section 42 of Act No. 2938 says:
All Acts or parts of Acts inconsistent or incompatible with the
provisions of this Act are hereby repealed.
Upon the disputed facts, there is nothing inconsistent or incompatible with
either section 37 of Act No. 2612, or section 35 of Act No. 2747, as construed
with section 29 of Act No. 2938. Each section expressly prohibits the making of
a loan by the Bank to an officer, and the only difference is the proviso in section
29, which does not apply to the facts here. There is nothing in section 37 or in
section 35 which is inconsistent or incompatible with section 29. Each of them
was intended to prohibit the Bank from loaning money to an officer of the bank.
Much stress is laid upon article 22 of the Penal Code, which says:
Penal laws shall have a retroactive effect in so far as they favor the
person guilty of a felony or misdemeanor, although at the time of the
publication of such laws a final sentence has been pronounced and the
convict is serving same.
For the reason that the bank here was incorporated under a special Act, that
article should be construed as it relates to article 7, which says:

Offenses punishable under special laws are not subject to the


provisions of this code.
This was construed in United States vs. Cuna (12 Phil., 241), in which this court
held:
Where an Act of the Commission or of the Philippine Legislature which
penalizes an offense repeals a former Act which penalizes the same
offense, such repeal does not have the effect of thereafter depriving
the courts of jurisdiction to try, convict, and sentence offenders
charged with violations of the old law prior to its repeal.
Article 22 was further construed and applied in United States vs. Parrone (24
Phil., 29).
But, in the instant case, there is no change in the law for the punishment of the
crime, and section 42 of Act No. 2938 limits the repeal to such portions only of
the previous law as are inconsistent or incompatible with Act No. 2938.
Section 35 says:
The National Bank shall not, directly or indirectly, grant loans to any of
the members, etc.
Appellant contends that the transaction involved here was a discount of the
note of the estate as distinguished from a loan, and, hence, that it was not a
violation of the law. Suffice it to say that, in enacting the law, the Legislature
was not dealing with, and knew but very little, if anything, of, the subtle
distinction between loans and discounts. Section 35 was intended to prohibit
any officer of the bank from borrowing or using any money of the bank for any
purpose. Again, an analysis of the facts clearly shows that the transaction was
a loan, and that it did not have any of the elements of a discount.
The face value of the original mortgage, which the bank held on the
"Palma" hacienda, was P600,000, and the accrued interest was P26,218.66, and
the amount of the check, which the bank gave to Salvador Serra was
P123,781.34, the amount of the check, which the bank gave to Salvador Serra
was P123,781.34, the total amount of which was P750,000, which is the
identical amount of the note which was executed by the Binalbagan Estate to
the bank at the time the deal was closed, hence, the evidence is conclusive
that it was a loan as distinguished from a discount.
In August, 1916, a question arose as to the construction which should be placed
upon sections 37 and 38 of Act No. 2612, and an opinion of the then Insular
Auditor was rendered, which apparently gave color to the legal right of the
Bank to defeat the purpose and intent of those sections, and the defendant
claims that he was justified in his conduct through the previous acts and the
established custom of the bank, and it is true that, in the ordinary course of

107

business, but little attention was paid to the provisions of those sections. The
Auditor was not the legal adviser of the Bank.
Section 25 of the original act expressly provides that:
The Attorney-General of the Philippine Islands shall be attorney for said
National Bank: Provided, however, That the Board of Directors of said
bank shall have power to employ other attorneys in special cases.
Hence, it must follow that the Attorney-General was the legal adviser of the
bank, and there is nothing to show that he was ever requested to, or that he
ever did, render a legal opinion upon the construction which should be placed
upon sections 37 and 38 of Act No. 2612. But giving the Auditor's opinion its
broadest construction, it would not justify the commission by the defendant of
the acts shown in the record. It might tend to mitigate, but it would not legalize
the offense.
The record further shows that on September 15, 1916, Mr. Ferguson, as Acting
President of the Bank, addressed a letter to Mr. Dexter, as Acting Insular
Auditor, in which he says:
We can readily see where loans directly made to Directors would be
very harmful, and it is a wise provision in the Act which makes this
impossible, but there is a wide difference between loaning money to a
Director, and discounting the single name paper or Bills receivable of a
business house, with whom such a Director might be interested.

The whole tenor of the letter clearly reveals that the defendant realized and
was very uneasy about the condition of the bank, and yet seventeen days
before that letter was written, he personally made an unsecured loan to the
Binalbagan Estate for P750,000, because of the very apparent reason that he
was one of its heaviest stockholders.
We have given this case the careful consideration which its importance
demands, and have examined each of the numerous assignments of error.
Defendant's case was skillfully presented in an exhaustive brief by able
counsel, but in the final analysis, the stubborn, undisputed fact remains that
the defendant did personally make a large unsecured loan to a corporation in
which he was one of its heaviest stockholders, and that the loan was
consummated and the money paid over without the knowledge of the Board of
Directors, and that it was made to the prejudice and injury of the bank, and to
further and promote his own personal interests, and that, as President of the
Bank, he personally released the mortgage of the bank upon the property
which his corporation acquired through the deal, and that upon the undisputed
facts, it was done in violation not only of section 35 of Act No. 2747, but also of
section 38 of Act No. 2612, and of section 29 of Act No. 2938.
Criticism is made of the penal clause, and its validity is attacked. It will be
noted that it is the same in each act, and that a large discretion is given to the
trial court, varying from a minimum fine to P10,000, or imprisonment not to
exceed five years, or both fine and imprisonment. Its purpose was to prohibit a
violation of any provision of the bank's charter, and to make the penalty
correspond to the gravity of the offense, and that question was left to the
discretion of the court.

As we have pointed out, the transaction here was a loan and not a discount.
The judgement of the lower court is affirmed, with costs. So ordered.
Again, any mitigation of the offense is more than offset by the subsequent
conduct of the defendant.
August 3, 1920, the defendant wrote a letter to the Governor-General in which
he complains of official treatment, and clearly points out the serious financial
condition of the Bank, in which, among other things, he says:
If this Bank is compelled to adopt drastic measures as to the liquidation
of its loans we would be placed in the position of having to shirk the
responsibility for any serious consequences that may arise, and to
point to the Department of Finance for insisting on such a policy.
The policy of contraction which is now in force in the operations of
the Bank and with the party payments on our loans to sugar central,
our cash reserve will be up to the requirements next year aside from
our ability to replenish our cash reserve in substantial amounts.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-58284 November 19, 1981
IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS,
BERNABE BUSCAYNO, JOSE MA. SISON and JULIET SISON, petitioners,
vs.
MILITARY COMMISSIONS NOS. 1, 2, 6 and 25, GENERAL FABIAN VER,
GENERAL FIDEL RAMOS, LIEUTENANT COLONEL VIRGILIO SALDAJENO,
CAPTAIN MELCHOR A. ACOSTA and REVIEW BOARD OF THE ARMED
FORCES OF THE PHILIPPINES, respondents.

108

3. Aquino in August, 1967 in the house of Leonida Arceo


located at Barrio San Francisco, Tarlac, Tarlac gave to
Buscayno two .45 caliber pistols to be used against the
government.

AQUINO, J.:
Bernabe Buscayno alias Commander Dante and Jose Ma. Sison alias Amado
Guerrero, alleged subversives classified as "PKP/HMB/CPP/MAMAO and
Traditional Armed Group personalities", were wanted by the authorities since
1971.
In Department Order No. 610 Undersecretary of National Defense Efren I. Plana
fixed P150,000 and P50,000 as the prizes to be paid to any person who kills,
captures or causes the killing, capture or surrender of Buscayno and Sison,
respectively, or who furnishes information directly leading to and which is the
proximate result of their killing or capture. (p. 96, Rollo of L-47185.)
Buscayno and Sison were included in the so-called "National Target List" of
active participants in the conspiracy to seize political and state power and to
take over the government by force whose arrest was ordered under 'General
Order No. 2 dated September 22, 1972. The list was prepared by Colonel
Hamilton B. Dimaya. (p. 95, Rollo of L-47185.)
Buscayno's case Even before Buscayno's arrest, he and Benigno S. Aquino, Jr.
(arrested on September 23, 1972) were charged before Military Commission No.
2 in an amended charge sheet dated August 14, 1973 with subversion or
violation of the Anti-Subversion Law, Republic Act No. 1700.
It was alleged that as ranking leaders of the Communist Party of the Philippines
and its military arms, the Hukbong Mapagpalaya ng Bayan and the New
People's Army, constituting an organized conspiracy to overthrow the
government by force or placing it under the control of an alien power, they
committed the following acts (Criminal Case No. MC-223, pp. 71-75, Rollo of L47185):
1. In April 1969, Aquino at 25 Times Street, Quezon City gave
P15,000 to the said organizations for the purpose of staging an
NPA-sponsored demonstration in Manila which was in fact
carried out in Congress, Malacaang and the American
Embassy on April 19, 1969 to achieve the objectives of the
said organizations.
2. Aquino in 1967 gave to Buscayno in Concepcion, Tarlac a .
45 caliber pistol with magazine and ammunition to be used
against the government.

4. Aquino in October, 1969 in Barrio Alto, Hacienda Luisita, San


Miguel, Tarlac, Tarlac, gave to Commanders Arthur Garcia and
Jose Buscayno two armored vests and a pair of walkie-talkies
to be used against the government.
5. Aquino on November 1 and 2, 1965 in San Miguel, Tarlac,
Tarlac, gave to Commander Alibasbas through Commander
Danilo several firearms and ammunition which were taken
from the house of Manuel Rodriguez and which were to be
used against the government and in fact the said firearms
were recovered from Commander Alibasbas and his group
when they were killed in Barrio Almendras, Concepcion, Tarlac.
6. Aquino in 1970 and 1971 at 25 Times Street, Quezon City
provided shelter and medical treatment for Roberto Santos
alias Commander Felman Benjamin Sanguyo alias Commander
Pusa and eight other sick or wounded officers or members of
the HMB and NPA.
Aquino, Buscayno, Peter Ilocano and Puriok, as conspirators, were also charged
with murder before Military Commission No. 2 in a charge sheet dated August
7, 1973. It was alleged that during the last days of November to December 2,
1967 they took Cecilio Sumat a barrio captain of Motrico, La Paz, Tarlac, from
his house and killed him in Barrio San Miguel, Tarlac, Tarlac (Criminal Case No.
MC-2-22, pp. 76-77, Rollo of L-47185).
In Criminal Case No. MC-1-92, Buscayno, with ninety-one other persons
including Sison and his wife, Juliet de Lima, Saturnino Ocampo and Mila
Astorga-Garcia, were charged with rebellion before Military Commission No. 1in
a charge sheet dated March 18, 1977.
It was alleged that on or about February 4, 1972 and for sometime prior or
subsequent thereto the ninety-two accused as officers and leaders of the
Communist Party of the Philippines and its military arm, the New People's Army,
and as conspirators rose publicly and took up arms against the government in
Navotas, Rizal and elsewhere in the Philippines for the purpose of removing
from the allegiance to said government or its laws the territory of the
Philippines or any part thereof or of its armed forces by organizing the
Karagatan Fishing Corporation and operating the M/V Karagatan a fishing

109

vessel, to procure firearms and ammunition for the CPP and NPA as in fact war
materials and armanents were landed at Digoyo Point, Palanan, Isabela on July
2, 1972 from Communist China and were used against the army.
The second specification in Criminal Case No. MC-1-92 is that Buscayno, Sison
and others during the period from August, 1973 to February, 1974 committed
rebellion in Manila, Baguio, La Union, Pangasinan, Bulacan and elsewhere in the
Philippines by acquiring, purchasing and operating vessels, motor vehicles,
beach houses, lots and other real and personal properties for use in distributing
firearms and ammunition for the CPP and NPA to be utilized in resisting the
army and overthrowing the government. (pp. 78-91, Rollo of L-47185.)
The said case was refiled in Special Military Commission No. 1 as Criminal Case
No. SMC-1-1 with an amended charge sheet dated November 8, 1977 (pp. 189205, Rollo of G.R. No. 58284).
Buscayno was arrested on August 26. 1976 in Barrio Sto. Rosario, Mexico,
Pampanga by operatives of the armed forces. He was detained in the
Constabulary Security Unit at Camp Crame. When the trial counsel informed
Buscayno that his presence at the hearing on September 15, 1976 before
Military Commission No. 2 was necessary, Buscayno in a letter dated
September 7, 1976 addressed to the President of the Commission declared that
he had no intention of appearing before the tribunal; that he did not need a
lawyer; that he would not contest the tribunal's jurisdiction and that any
reference by the prosecution witnesses to Buscayno alias Commander Dante
would be to him and to no other person.
At Buscayno's arraignment in the subversion and murder cases, he waived his
right to be present and to have counsel. He said that he was not challenging
any member of the tribunal. He just wanted to have a record of the trial. He
pleaded not guilty. After the prosecution had finished the presentation of its
evidence, Buscayno was asked whether he wanted to present evidence. He
answered in writing that he did not want to present evidence.
On July 18, 1977, Juan T. David entered his appearance as counsel for Buscayno
in Criminal Case No. MC-2-23 for subversion. On October 25, 1977, lawyer
David filed in this Court in behalf of Buscayno a petition for habeas corpus and
prohibition.
As no restraining order was issued, the Commission continued its proceeding
against Buscayno and Aquino. On November 25, 1977, after Buscayno failed to
present any evidence in spite of having been given another chance to do so, his
case was deemed submitted for decision. After deliberation, the Commission
found all the accused guilty as charged and imposed death by firing squad. The

complete records of the cases were transmitted to the Secretary of National


Defense.
However, four days later or on November 29, the President of the Philippines
directed the Commission to reopen the trial and give Aquino and Buscayno
another chance to present their evidence. According to the petitioners, on
December 15, 1977, this Court enjoined the Commission from rehearing the
two cases (p. 20, Petition) but no restraining order was actually issued.
This Court in its decision dated January 15, 1981 dismissed Buscayno's petition
(L-47185, 102 SCRA 7). We reiterated the rule that a military tribunal has
jurisdiction to try civilians and that the proceeding in a military commission is
not violative of procedural due process and would not be vitiated by partiality.
(Aquino vs. Ponce Enrile, L-37364, May 9, 1975, 63 SCRA 546; Gamaua vs.
Espino, L-36188-37586, February 29, 1980, 96 SCRA 402.) *
On March 27, 1981, Military Commission No. 2 convened to hear Buscayno's
evidence in the subversion and murder cases. His counsel asked for
postponement on the ground that he requested the President of the Philippines
to transfer the two cases to the civil courts and that he should be furnished
with the transcripts of the hearings held on November 25 and December 5,
1977. The truth is that he was furnished with those transcripts on January 8,
1978.
The postponement was granted. The hearing was reset for April 23. At the
hearing on that date, Buscayno's counsel again asked for postponement
because the President had not yet acted upon his request for the transfer of his
cases to the civil courts. He challenged the competency of the president of the
Commission on the ground of lack of adequate knowledge of the two cases. The
challenge was rejected. Buscayno did not present any evidence. The
Commission considered the cases re-submitted for decision.
On May 4, 1981, the Commission denied Buscayno's motion for the
reconsideration of the ruling that his case was already submitted for decision. It
reaffirmed its 1977 decision imposing on Buscayno the penalty of death by
firing squad.
Cases against Sison and spouses. They were arrested on November 10, 1977
by virtue of arrest, search and seizure orders issued by the Secretary of
National Defense.
As already stated in connection with the Buscayno case, the Sison spouses and
ninety-one other persons including Buscayno and Victor Corpus were charged

110

with rebellion on two counts before Special Military Commission No. 1 as shown
in the amended charge sheet dated November 8,1977.
Even before her arrest, Juliet Sison, with fifty-five other persons including Victor
Corpus, was charged with subversion before Military Commission No. 6 (Case
No. 55), as shown in the charge sheet dated November 16, 1972.
It was alleged therein that the fifty-six accused, in 1968 and for sometime prior
and subsequent thereto, became and have remained officers and ranking
leaders of the CPP and the NPA, the CPP's military arm, and the CPP's front
organizations such as the Kabataang Makabayan (KM), Samahang
Demokratikong Kabataan (SDK), Malayang Samahan ng Magsasaka (MASAKA),
Student Alliance for National Democracy (STAND), Movement for Democratic
Philippines
(MDP) and Malayang Kilusan ng Bagong Kababaihan
(MAKIBAKA), whose objective is the overthrow of the government for the
purpose of establishing a totalitarian regime and placing the government under
the control and domination of an alien power.
It was specified that the accused engaged in extensive indoctrination, agitation
and promotion of rallies (ten instances) and in propagandas, speeches, teachins, messages, lectures, all intended to promote the communist pattern of
subversion (eleven instances).
The same charge sheet indicated that the accused rose publicly and took up
arms against the government, engaging in war against the forces of the
government and committing serious violence (eight instances).
Juliet Sison was pinpointed as a ranking leader of the Kabataang Makabayan
operating in the Bicol region, helping her husband Jose as KM chairman and
editing the periodical Ang Bayan in Isabela in 1971-72 (Annex 3 of Return).
Jose Ma. Sison, with Juanito Canlas, Cesario Diego, Saturnino Ocampo, Antonio
Liao, Mila Roque, Alfredo Granada, Ramon Isberto, Ester Ceniza and Evelyn
Sarmiento were charged with subversion under Presidential Decree No. 885
(which superseded Republic Act No. 1700) before Military Commission No. 25 in
Case No. 113 as shown in the charge sheet dated October 3, 1978.
It was alleged that the ten accused, in or about 1968 and for sometime prior
and subsequent thereto and continuously thereafter, in Capas, Tarlac and
elsewhere in the Philippines, wilfully organized and joined as officers and
ranking members of the CPP and the NPA for the purpose of overthrowing the
government through armed revolution, violence and subversion with the covert
assistance and support of a foreign power in order to establish therein a
totalitarian regime subject to alien control and domination (Annex 4 of Return).

In the rebellion case, Case No. SMC-1-1, the Sison spouses and the Buscayno
spouses assailed the jurisdiction of the military tribunal to try civilians like
them.
On January 3, 1979, the Sison spouses, together with the Buscayno spouses,
Peter Mutuc, Edgar Pilapil, Eduardo Lingat, Joaquin Rivera, Leonila Lumbang and
Juanito Canlas, filed in this Court a petition for habeas corpus, prohibition and
mandamus (L-49579).
That petition, like Buscayno's petition in L-47185, was dismissed in this Court's
decision dated January 15, 1981 (102 SCRA 33).
The instant case. On October 2, 1981, Buscayno and the Sison spouses filed
the instant omnibus catchall petition for habeas corpus, prohibition and
mandamus couched in repetitious, involuted and obfuscatory verbiage
They prayed that the decision of Military Commission No. 2 dated May -1. 1981,
convicting Buscayno of subversion and murder and sentencing him to death by
firing squad, be declared void because he was denied his constitutional right to
present evidence and that he be released from detention.
They also prayed that the charges of rebellion and subversion be dismissed for
being in contravention of the rule on double jeopardy, that Military
Commissions Nos. 1, 6 and 25 be enjoined from proceeding with the trial of the
petitioners and that the petitioners be released. They also prayed that they be
granted bail.
The petitioners also asked for the issuance of a temporary restraining order,
enjoining the three Commissions from trying the petitioners, enjoining Military
Commission No. 1 from continuing with the perpetuation of testimonies and
from requiring the petitioners to attend the perpetuation proceedings and
enjoining the Review Board-AFP from reviewing the decision in the subversion
and murder cases.
Habeas corpus and petitioners' release on bail. - This is Buscayno's third
petition for habeas corpus and the second petition of the Sison spouses. The
ultimate issue is whether they are legally detained. We find that they have not
been illegally deprived of their liberty and that there is no justification to order
their release.
Proclamation No. 2045 dated January 17, 1981, which terminated martial law,
sanctions the continued confinement of the petitioners. It provides (77 OG
441):

111

... Now, therefore, I, Ferdinand E. Marcos, President/Prime


Minister of the Philippines, ... proclaim the termination of the
state of martial law throughout the Philippines;

interlocutory rulings and decisions may be reviewed by this Court. (See Kuroda
vs. Jalandoni, 83 Phil. 171; Martelino vs. Alejandro, L-30894, March 25, 1970, 32
SCRA 106).

Provided, that the call to the Armed Forces of the Philippines to


prevent or suppress lawless violence, insurrection, rebellion
and subversion shall continue to be in force and effect; and

So, the issue as to whether Buscayno was denied his constitutional right to
present evidence should first be passed upon by the reviewing military
authority and not by this Court. The propriety of the perpetuation proceedings
in the rebellion case and the conduct of the trial in the Commission cannot at
this stage be passed upon by this Court.

Provided, that in the two autonomous regions in Mindanao,


upon the request of the residents therein, the suspension of
the privilege of the writ of habeas corpus shall continue;
and in all other places the suspension of the privilege of the
writ shall also continue with respect to persons at present
detainedas well as others who may hereafter be similarly
detained for the crimes of insurrection or rebellion,
subversion conspiracy or proposal to commit such crimes, and
for all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or
in connection therewith;
General Order No. 8 is also hereby revoked and the military
tribunals created pursuant thereto are hereby dissolved
upon final determination of cases pending therein which may
not be transferred to the civil courts without irreparable
prejudice to the state in view of the rules on double jeopardy,
or other circumstances which render further prosecution of the
cases difficult, if not impossible;
Proclamation No. 2045 explicitly provides that persons, like petitioners who are
under detention for rebellion and the capital offense of subversion, cannot
enjoy the privilege of the writ of habeas corpus. Because the privilege of the
writ of habeas corpus is suspended as to them, they are not entitled to bail
(Lansang vs. Garcia, L-33964, December 11, 1971 and eight other cases, 42
SCRA 448).
Review of rulings of the military commission. Ordinarily, this Court cannot
review the rulings and proceedings of the military commission. The National
Security Code, Presidential Decree No. 1498, which was issued on June 11,
1978 (74 OG 11066), provides in its sections 86(f) and 87(e) that what this
Court can review are the decisions of the Court of Military Appeals in cases
appealed to it from the military commission.
Generally, this Court does not exercise over military commissions the
supervisory jurisdiction which it possesses over civil trial courts whose

We have definitively ruled that the petitioners can be tried by the military
commissions and that their cases are within the jurisdiction and competence of
military tribunals.
Nevertheless, two legal issues regarding double jeopardy and the alleged
repeal of the Anti-Subversion Law may be resolved in the interest of justice, to
dissipate any uncertainty and for the guidance of the parties.
Alleged repeal of the Anti-Subversion Law. Juliet de Lima Sison contends that
her criminal liability for subversion was extinguished when Presidential Decree
No. 885 (which took effect on May 11, 1976, 72 OG 3826) repealed Republic Act
No. 1700. This contention is bereft of merit.
That decree, which is the Revised Anti-Subversion Law, in repealing or
superseding Republic Act No. 1700, expressly provides in its section 7 that "acts
committed in violation" of the former law before the effectivity of the said
decree "shall be prosecuted and punished in accordance with the provisions of
the former Act" and that nothing in the said decree "shall prevent prosecution
of cases pending for violation of" Republic Act No. 1700. That saving or
transitory clause is reenacted in section 14(i) of the National Security Code.
It is similar to article 366 of the Revised Penal Code which provides that felonies
and misdemeanors committed prior to the effectivity of the Revised Penal Code
shall be punished in accordance with the old Penal Code and the laws in force
at the time of their commission.
The fact that Presidential Decree No. 885 does not mention the CPP does not
mean that that party is no longer regarded as a subversive organization. The
purpose of the party is the decisive factor in determining whether it is a
subversive organization.
The issue of double jeopardy. The petitioners invoke their constitutional right
not to be put twice in jeopardy of punishment for the same offense. As may be

112

gleaned from section 9, Rule 117 of the Rules of Court, "same offense" means
the offense charged, or an attempt to commit it or a frustrated stage thereof, or
"any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information."

In this Court, he contended that because rebellion is an offense cognate with


subversion and that the two informations contain the same facts, he could not
be tried for rebellion and subversion without being placed twice in jeopardy for
the same acts.

For an accused to be in jeopardy, it is necessary (1) that a valid complaint or


information or other formal charge sufficient in form and substance to sustain a
conviction is filed against him; (2) that the charge is filed in a court of
competent jurisdiction and (3) that after he had pleaded to the charge, he was
convicted or acquitted or the case against him was dismissed or
otherwise terminated without his express consent (People vs. Pilpa, L-30250,
September 22, 1977, 79 SCRA 81).

It was held that the defense of double jeopardy should be interposed by


Bulaong in the subversion case. He could not plead double jeopardy in
the rebellion case because the subversion case had not yet been terminated.
(See Silvestre vs. Military Commission No. 21, L-46366, March 8, 1978, 82 SCRA
10; Jimenez vs. Military Commission No. 34, G.R. No. 54577, January 15, 1981,
102 SCRA 39).

To be in jeopardy, the case against the accused must be terminated by means


of a final conviction, acquittal or dismissal without his express consent, If the
case is not yet terminated, then jeopardy does not set in. After the accused has
been put in jeopardy, the filing against him of another charge for the same
offense or for an attempt or frustrated stage thereof or for any offense which
necessarily includes or is included in the offense originally charged places him
in double jeopardy.
That is forbidden by section 22, Article IV of the Constitution or by the rule
against double jeopardy: nemo bis punitur pro eodem delicto (no one is twice
punished for the same offense) or non bis in Idem which is analogous to res
judicata in civil cases.
As stated earlier, Buscayno was charged with subversion together with Aquino
in a 1973 charge sheet. Jose Ma. Sison was charged with subversion in a 1978
charge sheet. His wife, Juliet de Lima, was charged with subversion in
a 1972 charge sheet. The three petitioners were all charged with rebellion in an
amended charge sheet datedNovember 8, 1977. Only the subversion case
against Buscayno was decided but the decision is still subject to review.
Because no case against the petitioners has been terminated, it is once evident
that they cannot invoke the rule on double jeopardy. The petitioners have not
yet been placed in jeopardy.
In Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746, Agaton Bulaong
was charged with rebellion in the Laguna Court of First Instance and later with
subversion in the Manila Court of First Instance in connection with his activities
as an officer of the CPP and HMB He was convicted of rebellion by the Laguna
court. The Court of Appeals affirmed the judgment of conviction. He appealed
to this Court. The subversion case was still pending in the Manila court.

Petitioners contend that rebellion is an element of the crime of subversion. That


contention is not correct because subversion does not necessarily include
rebellion. Subversion, like treason, is a crime against national security. Rebellion
is a crime against public order.
Republic Act No. 1700 (quoted in full in People vs. Ferrer, L-32613-14,
December 27, 1972, 48 SCRA 382), which took effect on June 20, 1957 and
which outlaws the Communist Party and similar associations because their
existence and activities constitute a clear, present and grave danger to national
security, punishes the following acts:
1. By arresto mayor, anyone who knowingly, wilfully and by
overt acts affiliates himself with, becomes or remains
a member of the Communist Party or its successor or any
subversive association as defined in the law. Prision
correccional shall be imposed for a second conviction. Prision
mayor shall be imposed for subsequent convictions.
2. By prision mayor to death, being an officer or a ranking
leader of the Communist Party or of any subversive association
as defined in the law.
3. By prision mayor to death, any member of the Communist
Party or similar subversive association who takes up arms
against the government.
4. By prision correccional to prision mayor, one who conspires
with any other person to overthrow the Government of the
Republic of the Philippines or the government of any of its
political subdivisions by force, violence, deceit, subversion or
other illegal means for the purpose of placing such

113

Government or political subdivision under the control and


donation of any alien power.

amended by Batas Pambansa Blg. 31, effective on June 6,


1979 and P.D. No. 1736, Sept. 12, 1980.).

5. By prision correccional any person who knowingly furnishes


false evidence in any action brought under the Anti-Subversion
Law.

Sec. 3. Penalties (a) Members. Whoever knowingly,


wilfully and by overt act affiliates with, becomes or remains a
member of a subversive association or organization as defined
in Section 2 hereof shall be punished by arresto mayor and
shall be disqualified permanently from holding any public
office, appointive or elective, and from exercising the right to
vote; in case of a second conviction, the principal penalty shall
be prision correccional and in all subsequent convictions the
penalty of prision mayor shall be imposed.

As already noted, Republic Act No. 1700 was superseded by Presidential Decree
No. 885 which reads as follows:
PRESIDENTIAL DECREE NO. 885
OUTLAWING
SUBVERSIVE
ORGANIZATIONS;
PENALIZING
MEMBERSHIP THEREIN AND FOR OTHER PURPOSES
Whereas, there are certain associations or organizations in the
Republic of the Philippines, not covered by Republic Act No.
1700, which are seeking to overthrow the Government of the
Republic of the Philippines or to dismember a portion thereof;
and
Whereas, in order to protect the Government of the Republic of
the Philippines and the people, it has become necessary to
revise Republic Act No. 1700 to broaden its coverage;
Now, therefore, I, Ferdinand E. Marcos, President of the
Philippines by virtue of the powers in me vested by the
Constitution, do hereby decree as follows:
Section 1. Short Title This decree shall be known as the
Revised Anti-Subversion Law.
Sec. 2. Subversive Associations and Organizations - Any
association, organization, political party, or group of persons
organized for the purpose of overthrowing the Government of
the Republic of the Philippines or for the purpose of removing
from the allegiance to said Government or its laws, the
territory of the Philippines or any part thereof, with the open or
covert assistance or support of a foreign power or the open or
covert support from a foreign source of any association, group
or person, whether public or private, by force, violence,
terrorism, arson, petition, deceit or other illegal shall be
considered and is hereby d a subversive organization. (As

The following acts shall constitute prima facie evidence of


membership in any subversive association:
(1) Allowing himself to be listed as a member
in any book or any of the lists records,
correspondence, or any other document of
the organization;
(2) Subjecting himself to the discipline of such
association or organization in any form
whatsoever;
(3) Giving financial contribution to such
association
or
organization
in
dues,
assessments, loans, or in any other forms;
(4) Executing orders, plans or directives of
any kind of such association or organization;
(5) Acting as an agent, courier, messenger,
correspondent, organizer, or in any other
capacity, on behalf of such association or
organization;
(6) Conferring with officers or other members
of such association or organization in
furtherance of any plan or enterprise thereof;

114

(7) Transmitting orders, directives, or plans of


such association or organization orally or in
writing or any other means of communication
such as by signal, semaphore, sign or code;
(8) Preparing documents, pamphlets, leaflets,
books, or any other type of publication to
promote the objectives and purposes of such
association or organization;
(9)
Mailing,
shipping,
.
circulating,
distributing, or delivering to other persons
any material or propaganda of any kind on
behalf of such association or organization;
(10) Advising, counselling, or in other way
giving instruction, information, suggestions,
or recommendations to officers or members
or to any other person to further the
objectives of such association or organization;
(11) Participating in any way in the activities,
planning action, objectives, or purposes of
such association or organization.
(b) Officers or Ranking Leaders. If such member is an officer
or a ranking leader of any subversive association or
organization as defined in Section 2 hereof, or if such member
takes up arms against the Government, he shall be punished
by prision mayor to death with all the accessory penalties
provided therefor in the Revised Penal Code.
(c) Deportation Any alien convicted under this decree shall
be deported immediately after he shall have served the
sentence imposed upon him.
Sec. 4. False Testimony. Any person who knowingly
furnishes false evidence in any action brought under this
decree shall be punished by prision correccional.
Sec. 5. Sufficiency of Evidence. Except as provided in
Section 7 hereof, the two-witness rule heretofore provided in
Republic Act Numbered Seventeen hundred is hereby

obrogated and the accused may be convicted on the


testimony of one witness if sufficient under the rules of
evidence, or on his confession given in open court.
Sec. 6. No Restriction of Thought. Nothing in this decree
shall be interpreted as a restriction on freedom of thought, of
assembly and of association for purposes not contrary to law
as guaranteed by the Constitution.
Sec. 7. Repealing Clause. This decree supersedes Republic
Act Numbered Seventeen Hundred, but acts committed in
violation thereof and before the effectivity of this decree, shall
be prosecuted and punished in accordance with the provisions
of the former Act. Nothing in this decree shall prevent
prosecution of cases pending for violation of Republic Act
Numbered Seventeen Hundred.
Sec. 8. Sequestration of Property. The sequestration of the
property of any person, natural or artificial, engaged in
subversive activities against the Government and its duly
constituted authorities, is hereby authorized, in accordance
with implementing rules and regulations as may be issued by
the Secretary of National Defense.
As used herein, the terms "sequester" and "sequestration"
shall mean the seizure of private property or assets in the
hands of any person or entity in order to prevent the
utilization, transfer or conveyance of the same for purposes
inimical to national security, or when necessary to protect the
interest of the Government or any of its instrumentalities. It
shall include the taking over and assumption of the
management, control and operation of the private property or
assets seized.
Sec. 9. Effectivity. This decree shall take effect thirty days
after its publication in the Official Gazette. Done in the City of
Manila, this 3rd day of February, in the year of Our Lord,
nineteen hundred and seventy-six.
Presidential Decree No. 885 is incorporated in section 14 of the National
Security Code.
On the other hand, rebellion or insurrection is committed by rising publicly and
taking arms against the Government for the purpose of removing from the

115

allegiance to said Government or its laws, Philippine territory or any part


thereof, or any body of land, naval or other armed forces, or of depriving the
Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
Rebellion is distinct from participation or membership in an organization
committed to overthrow the duly constituted government (People vs.
Hernandez, 120 Phil. 191, 220).
The petitioners were accused of rebellion for having allegedly undertaken
a public uprising to overthrow the government. In contrast, they were accused
of subversion for being allegedly officers and ranking members of the
Communist Party and similar subversive groups. The alleged overt acts of
resisting the armed forces were only incidental to the main charge of being
leaders of subversive or revolutionary organizations collaborating with an alien
power to make the country a satellite thereof, like Cuba, North Korea and North
Vietnam in relation to Soviet Russia.
The issue on double jeopardy raised by the petitioners was resolved by this
Court in People vs. Liwanag alias Linda Bie, L-27683, October 19, 1976, 73
SCRA 473. In that case, Silvestre Liwanag was charged in 1960 with subversion
for being an officer and ranking member of the CPP and HMB.
He filed a motion to quash the information on the ground of double jeopardy
because he had already been convicted of rebellion based on the same overt
acts allegedly constituting the crime of subversion. The trial court denied the
motion. After trial he was convicted and sentenced to reclusion perpetua. He
appealed to this Court where he again raised the issue that the charge of
subversion placed him in double jeopardy.

committed overt acts as alleged communists or leftists. The overt acts in the
two charges are different.
Rebellion is an offense that has existed in the Penal Code for a long time. It may
be committed by non-communists without collaborating with the agents of an
alien power. In contrast, the crime of subversion came into existence when the
communists sought to dominate the world in order to establish a new social
economic and political order.
The constitutionality of the Anti-Subversion Law was upheld in People vs.
Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382 and 56 SCRA 793. Long
before the passage of the Anti-Subversion Law membership in illegal
associations has been penalized (Art. 146, Revised Penal Code).
A statute which punishes membership in a party or association that advocates
the overthrow or destruction of the government by force or violence is justified
on the ground of self-preservation (Dennis vs. U.S., 341 U.S. 494, 509; Scales
vs. U.S. 367 U.S. 203).
The unavoidable conclusion is that in the present posture of the pending cases
against the petitioners their plea of double jeopardy cannot be sustained.
WHEREFORE, the petition is dismissed. The restraining order is lifted. No costs.
SO ORDERED.
Barredo, Fernandez, Guerrero and De Castro, JJ., concur.
Makasiar, J., concur in the result.

It was held that there was no double jeopardy because Liwanag was convicted
of rebellion for acts committed before the Anti-Subversion Law took effect while
the subversion charge referred to his act of having remained an officer and
ranking leader of the CPP and HMB from the time the Anti-Subversion Law took
effect on June 20, 1957 up to his capture in 1960. Moreover. the crime of
subversion is distinct from rebellion.
In the instant case, the rebellion charge against the petitioners embraced the
acts committed by them on or about February 4, 1972 and during the period
from August, 1973 to February, 1974. The subversion charge against Buscayno
involved his acts committed in 1965, 1967, 1969, 1970 and 1971. The
subversion charge against the Sison spouses referred to their acts committed in
1968 and for sometime prior and subsequent thereto. The common
denominator of the rebellion and subversion charges is that the petitioners

Concepcion Jr., J., took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

116

Except as to the statement that "ordinarily, this Court cannot review the rulings
and proceedings of the military commission" (p. 11) in respect of which I
reserve my vote.
Abad Santos, J., concur.
FERNANDO, C.J., concurring and dissenting:
With regret and with due recognition that with the approach taken the
conclusion reached by the Court expressed with his usual clarity in the
able ponencia of justice Aquino was inevitable I find myself unable to agree
with my brethren on the question of the scope of our power of review over
military tribunals, especially so where the accused are civilians. Moreover, while
it is not inaccurate to state that the suspension of the privilege of the writ of
habeas corpus carries with it the suspension of the right to bail. 1 I am for a
reexamination of such a doctrine, Moreover, even if I did not succeed, it is my
submission that there may be a question of unconstitutional application of such
a principle if, notwithstanding the advanced stage of pregnancy of Mrs. Juliet
Sison, she is not released on bail.
I am led to concur in the result primarily on the concept of the law of the case,
the present petitioners having failed in their previous petitions to transfer their
cases to civilian tribunals. 2 I likewise concur with my brethren on the lack of
merit in the petition insofar as it contended that there was double jeopardy.
Also, while being the lone dissenter in People v. Ferrer, 3 where the validity of
the Anti-Subversion Act was challenged, I must perforce yield to the prevailing
doctrine that it is not unconstitutional.
Hence this separate concurring and dissenting opinion.
1. On the question of the power of this Court to review actuations of military
tribunals, I adhere to our decision in Go v. Gen. Olivas. 4 That petition for
habeas corpus was dismissed on the basic principle that no jurisdictional
question was raised by the person detained. Nonetheless, this Court made clear
what are the guiding principles to determine its jurisdiction whenever the
actuation of a military tribunal is challenged before it. Thus: "1. This Court
in Aquino v. Military Commission No. 2 ruled that there is no constitutional
objection to military tribunals conducting trials of civilians for certain specified
offenses, among which is kidnapping. That does not preclude the judiciary, of
course, from granting in appropriate cases applications for the return of habeas
corpus. There is, however, this limitation. The jurisdictional question must be
squarely raised. That is a doctrine implicit in the In re Carr 1902 decision, the
opinion being penned by Justice Willard. The leading case of Payomo v. Floyd, a
1922 decision, made it explicit. As set forth by its ponente, Justice Street: "The

next point to be observed upon it that, where the detained person is held in
restraint by virtue of a judgment rendered by a military or naval court, tribunal,
or officer, no court entertaining an application for the writ of habeas corpus has
authority to review the proceedings of that tribunal, court, or officer in the
sense of determining whether the judgment was erroneous. The only question
to be considered is whether the court, tribunal, or officer rendering the
judgment had jurisdiction to entertain the case and render judgment at all. As
was said by the Supreme Court of the United States in a case where the writ of
habeas corpus had been sued out to liberate a person detained by virtue of the
sentence of a court-martial, the civil courts exercise no supervisory or
correcting power by the writ of habeas corpus over the proceedings of a courtmartial and no mere errors in their proceedings are open to consideration. "The
single inquiry, the test, is jurisdiction. That being established, the habeas
corpus must be denied and the petitioner remanded. That wanting, it must be
sustained and the petitioner discharged." ... As otherwise stated the rule is that
the proceedings of a military or naval court cannot be reviewed upon habeas
corpus when it appears that such tribunal had jurisdiction over the offense
charged and that the offender was a person amenable to its authority." The first
Supreme Court decision after the Liberation in 1945, Cabiling v. Prison Officer,
reiterated such a doctrine. As set forth in the opinion of Chief Justice Moran: "It
is alleged in the petition for habeas corpus filed in his behalf that he is illegally
detained, the General Court-Martial having no jurisdiction to try and convict him
for the crime charged. ... [The only] question to be determined is whether or
not the General Court-Martial was vested with jurisdiction to try and convict the
petitioner for the crime of murder. There seems to be no doubt that it had such
jurisdiction. According to Article of War 12 "General Courts-Martial shall have
power to try any person subject to military law for any crime or offense made
punishable by these articles, ... " The petitioner, being a staff sergeant of the
Philippine Scouts, United States Army, is a person subject to military law, under
Article of War 2, and in time of war, the crime of murder committed by a person
subject to military law, comes within the jurisdiction of a court-martial, in
accordance with Article of War 92." 2. What minimizes the difficulty facing a
detained person, triable by a military tribunal, is this categorical
pronouncement by Justice Antonio, speaking for the Court, in the
aforesaid Aquino v. Militar00y Commission decision: "It is important to note
here that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be
heard by himself and counsel to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf, and to be exempt from being a witness against himself. As in trial before
civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in
general, are "bound to observe the fundamental rules of law and principles of
justice observed and expounded by the civil judicature" ... There is, therefore,

117

no justification for petitioner's contention that such military tribunals are


concerned primarily with the conviction of an accused and that proceedings
therein involve the complete destruction and abolition of petitioner's
constitutional rights." Such being the case, the well-settled doctrine announced
as early as 1924 by Justice Malcolm in Conde v. Rivera and subsequently
reiterated, the latest case being Gumabon v. Director of Prisons that came out
in 1971, to the effect that a denial of a constitutional right may oust the Court
of jurisdiction, finds pertinence. In this petition, however, counsel failed to
invoke such a principle, relying instead on Jovito Go not falling within
Proclamation No. 1081. There is plausibility to the argument that under the
ruling in Aquino v. Ponce Enrile, the offense for which Go was indicted is not
included in the crime of insurrection or rebellion which supplied the basis for
preventive detention under martial law proclamation. That is not decisive of the
controversy before us in view of the fact, as mentioned above, that a military
tribunal is vested with jurisdiction where the prosecution is one for
kidnapping." 5
2. I am for the reexamination of the doctrine that the suspension of the
privilege of habeas corpus carries with it the suspension of the right to bail.
That was my view as one of the counsel in Hernandez v. Montesa, 6 heard and
thereafter decided in one opinion with Nava v. Gatmaitan. As set forth in the
dissenting opinion of Justice Teehankee, the majority was of that view but
unfortunately there was one vote short of the necessary six affirmative votes at
that time. It is quite understandable if I find nothing objectionable in his opinion
when he cited extensively from Tanada and Fernando on the Constitution of the
Philippines Annotated. 7
3. A few additional observations. The petition made mention of the efforts of
counsel to have the President transfer the cases to the civil courts. The success
of such endeavor would be for me a cause for gratification. It would mean that
the lifting of martial law would likewise put an end to the jurisdiction of military
tribunals over civilians, necessitated by the past period of emergency. At any
rate, to the extent that the evidence before respondent Military Commission
found in the records was offered with due regard to the constitutional rights of
an accused, it could still be relied upon by the court to which the cases may be
transferred. In the event that such efforts would not be attended to with
success, it would be desirable, to my way of thinking, if there be only one
military commission to continue with the trial of petitioners. There is this last
point. The opinion of the United States Supreme Court in Dennis v. United
States 8 and Scales v. United States 9 were cited in the ponencia. The later case,
as made clear in the opinion of Justice Harlan while upholding the applicability
of the Smith Act likewise emphasized that such statute requires proof of a
specific intent to bring about the violent overthrow of the government and
proof of "active" as distinguished from mere "nominal" or "passive,"
membership. Nonetheless, the more liberal view which for me expresses the

current state of American constitutional law is that set forth in Brandenburg v.


Ohio 10 decided in 1969 at the end of the last term of the Warren Court. To cite
from the opinion of the United States Supreme Court: "These later decisions
have fashioned the principle that the constitutional guarantees of free speech
and free press do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action." 11
TEEHANKEE, J., dissenting:
The principal questions presented in the case at bar assert (1) the
constitutional right of civilians like petitioners to the judicial process of civilian
trials by the regular civil courts composed of judges trained in the law whose
objectivity and independence are protected by tenure and undiminished salary
and are nurtured by the judicial tradition as against the executive process of
trial by military tribunals composed of military officers, specially so with the
lifting of martial law on January 17, 1981 through the President's Proclamation
No. 2045, and (2) petitioners' constitutional right to bail unless it could be
shown that evidence of guilt for the capital offense of subversion for which they
are charged were strong. I dissent from the majority decision's dismissal of the
petition and denial of these constitutional rights invoked by them.
I. On the first question of the right of civilians to trial by judicial process, I
dissent o the grounds stated in my separate opinions in Aquino vs. Military
Commission No. 2 1 and in the latest cases this year of Buscayno vs. Enrile 2,
Sison vs. Enrile 3 , and Luneta vs. Special Military Commission No. 1. 4
These cases were all decided before the President's issuance of Proclamation
No. 2045 on January 17, 1981 revoking his previous proclamations of martial
law (Nos. 1081 and 1104) as well as General Order No. 8, and directing that
"the Military tribunals created pursuant thereto are hereby dissolved upon final
determination of cases pending therein which may not be transferred to the
civil courts without irreparable prejudice to the state in view of the rules on
double jeopardy, or other circumstances which render further prosecution of
the cases difficult, if not impossible."
In Sison particularly, the Court in dismissing the petition, unanimously noted
that "(T)he President of the Philippines has announced that the military
tribunals are being phased out. It is reported that the Ministry of Justice is now
taking steps to transfer cases pending before the military tribunals to the civil
courts. Hence, the issues raised by the petitioners have become moot and
academic."

118

With the official lifting of martial law under Proclamation No. 2045 and the
revocation thereunder of General Order No. 8 creating military tribunals, and
pursuant to the Court's abovequoted pronouncement in Sison on the phaseout
of military tribunals, there is no longer any justification for continuing to subject
petitioners-civilians to trial by military commissions in derogation of the judicial
power vested exclusively in the civil courts.

neither the respondents nor the State claim, much less have shown, that the
transfer of petitioners' cases to the civil courts would result in "irreparable
prejudice" to the State because of double jeopardy or that such transfer to the
civil courts would render further prosecution "difficult, if not impossible" in the
face of petitioners' assertion and insistence that the military tribunals have no
jurisdiction over them as civilians.

As stressed in my separate opinion in Aquino, civilians like petitioners placed on


trial for offenses under general law are entitled to trial by judicial process, not
by executive or military process. Judicial power is vested by the Constitution
exclusively in the Supreme Court and in such inferior courts as are duly
established by law. Military commissions or tribunals are not courts and do not
form part of the judicial system. Since we are not enemy-occupied territory nor
are we under a military government, the military tribunals cannot try and
exercise jurisdiction over civilians for civil offenses committed by them which
are properly cognizable by the civil courts that have remained open and have
been regularly functioning.

II. On the second question on the right of petitioners to bail, absent a showing
of strong evidence of guilt of the capital offense of subversion, notwithstanding
the saving. clause in Proclamation No. 2045 maintaining the suspension of the
privilege of the writ of habeas corpus as to them as persons detained for
rebellion and subversion, I reiterate my adherence to the majority holding in
the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs.
Montesa 7 (although it000 failed one vote short of the required majority of six
affirmative votes at the time ) as expounded by then Chief Justice Ricardo Paras
and Associate Justice (later Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after formal indictment in
court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are entitled to the right
to bail. As stressed by then Chief Justice Paras, "(T)he right to bail, along with
the right of an accused to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the rights to be tried by a court) that
may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable."

As was held in a leading U.S. Supreme Court case, 5 "the assertion of military
authority over civilians [discharged servicemen] cannot rest on the President's
power as Commander-in-Chief or on any theory of martial law." The late Justice
Hugo Black speaking for that Court aptly pointed out that "the presiding officer
at a court martial [or military commission] is not a judge whose objectivity and
independence are protected by tenure and undiminished salary and nurtured
by the judicial tradition, but is a military law officer. Substantially different rules
of evidence and procedure apply in military trials. Apart from these differences,
the suggestion of the possibility of influence on the actions of the court-martial
by the officer who convenes it, selects its members and the counsel on both
sides, and who usually has direct command authority over its members is a
pervasive one in military law, despite strenuous efforts to eliminate the
danger," and "(A) Court-Martial is not yet an independent instrument of justice
but remains to a significant degree a specialized part of the over-all mechanism
by which military discipline is preserved," and ex-servicemen should be given
"the benefits of a civilian court trial when they are actually civilians. ... Free
countries of the world have tried to restrict military tribunals to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline among troops
in active service."
Finally, it should be noted that there has been no showing by respondents that
the cases against petitioners fall within the only exception provided in
Proclamation No. 2045 6 wherein the military tribunals which are therein
dissolvedmay make a "final determination " to wit, "cases pending therein
which may not be transferred to the civil courts without irreparable prejudice to
the State in view of rules on double jeopardy, or other circumstances which
render further prosecution of the cases difficult, if not impossible." Certainly,

I cannot improve on the presentation of the rationale of the failed majority in


the cited right to bail cases as made in the oft-cited work of Tanada and
Fernando, and herewith reproduce the same:
In Nava v. Gatmaitan and Hernandez v. Montesa, the question
presented before the Supreme Court was the effect on the
right to bail of the suspension of the writ of habeas corpus. For
lack of one vital vote, to make a majority of six as required by
the Judiciary Act, the Supreme Court missed an opportunity to
speak in unmistakable language that constitutional rights
mean what they say and that the Constitution is supreme,
emergency to the contrary notwithstanding. Respondent

119

judges in the above two petitions ruled that the petitioners


were included among those coming within the terms of the
suspension of the privilege of the writ of habeas corpus and
were for that reason not entitled to their constitutional right to
bail Upon the matter being taken before the Supreme Court,
five of the nine Justices who voted on the question were of the
opinion that petitioners under the Constitution have the right
to bail unless it could be shown that evidence of guilt for the
capital offense of which they were charged were strong. In
thus arriving at that conclusion, the above five justices merely
applied literally the terms of the controlling constitutional
provision.

so-called
"judicial
statesmanship."
The
Legislature itself cannot infringe them, and no
court
conscious
of
its
responsibilities
limitations would do so. If the Bill of Rights are
incompatible with stable government and a
menace to the Nation, let the Constitution be
amended, or abolished. It is trite to say that,
while the Constitution stands, the courts of
justice as the repository of civil liberty are
bound to protect and maintain undiluted
individual rights.
From Justice Bengzon, . . . .

As Chief Justice Paras expressed it:


* * * The privilege of the writ of habeas corpus
and the right to bail guaranteed under the Bill
of Rights are separate and co-equal. If the
intention of the framers of the Constitution
was that the suspension of the privilege of the
writ of habeas corpus carries or implies the
suspension of the right to bail they would
have very easily provided that all persons
shall before conviction be bailable by
sufficient sureties, except those charged with
capital offenses when evidence of guilt is
strong and except when the privilege of the
writ of habeas corpus is suspended. As stated
in the case of Ex Parte Milligan. 4 Wall. 2, 18
L. ed. 297, the Constitution limited the
suspension to only one great right, leaving
the rest to remain forever inviolable.
Justice Tuason had no doubts on the matter
either:
To the plea that the security of the State
would be jeopardized by the release of the
defendants on bail, the answer is that the
existence of danger is never a justification for
courts to tamper with the fundamental rights
expressly granted by the Constitution. These
rights are immutable, inflexible, yielding to no
pressure of convenience, expediency or the

there is a cogent and forceful presentation of the argument


that respect for constitutional rights would aid in the fight
against Communism in the Philippines.
And in my opinion, one of the surest means to
ease the uprising is a sincere demonstration
of this Government's adherence to the
principles of the Constitution together with an
impartial application thereof to all citizens,
whether dissidents or not. Let the rebels have
no reason to apprehend that their comrades
now under custody are being railroaded into
Muntinlupa,
without
benefit
of
those
fundamental privileges which the experience
of the ages has deemed essential for the
protection of all persons accused of crane
before the tribunal of justice. Give them the
assurance that the judiciary, ever mindful of
its sacred mission, will not, thru faulty or
misplaced devotion, uphold any doubtful
claims of Governmental power in diminution
of individual rights, but will always cling to the
principles uttered long ago by Chief Justice
Marshall that when in doubt as to the
construction of the Constitution, "the Courts
will favor personal liberty." (Ex parte Burford 3
Cranch, & U.S., Law Ed. Book 2, at p. 495). 8
III. A final word on the statements in the main opinion 9 that would deny to this
Supreme Court the right to "review the rulings and proceedings of the military

120

commission" or at best limit such review "to decisions of the Court of Military
Appeals 10 in cases appealed to it from the military commission." It must first be
noted that these statements do not carry the affirmance of a majority of the
Court that would unsettle or overthrow this Courts consistent exercise of its
judicial power and jurisdiction through the prerogative writs of certiorari and
prohibition or habeas corpus over cases, including military commissions (in
whatever stage of the proceedings), where a violation or denial of constitutional
rights is asserted by the aggrieved party, although not always with successful
results. In this very case, the Court did again exercise, with the required
concurrence of at least eight (8) members, its jurisdiction over proceedings in
the military commissions per its Resolution of October 22, 1981 through the
issuance of a temporary restraining order enjoining respondent military
commissions "from proceeding with the trial of petitioners ... until otherwise
ordered by the Court."

Separate Opinions
MELENCIO-HERRERA, J., concurring:
Except as to the statement that "ordinarily, this Court cannot review the rulings
and proceedings of the military commission" (p. 11) in respect of which I
reserve my vote.
Abad Santos, J., concur.
FERNANDO, C.J., concurring and dissenting:
With regret and with due recognition that with the approach taken the
conclusion reached by the Court expressed with his usual clarity in the
able ponencia of justice Aquino was inevitable I find myself unable to agree
with my brethren on the question of the scope of our power of review over
military tribunals, especially so where the accused are civilians. Moreover, while
it is not inaccurate to state that the suspension of the privilege of the writ of
habeas corpus carries with it the suspension of the right to bail. 1 I am for a
reexamination of such a doctrine, Moreover, even if I did not succeed, it is my
submission that there may be a question of unconstitutional application of such
a principle if, notwithstanding the advanced stage of pregnancy of Mrs. Juliet
Sison, she is not released on bail.
I am led to concur in the result primarily on the concept of the law of the case,
the present petitioners having failed in their previous petitions to transfer their

cases to civilian tribunals. 2 I likewise concur with my brethren on the lack of


merit in the petition insofar as it contended that there was double jeopardy.
Also, while being the lone dissenter inPeople v. Ferrer, 3 where the validity of
the Anti-Subversion Act was challenged, I must perforce yield to the prevailing
doctrine that it is not unconstitutional.
Hence this separate concurring and dissenting opinion.
1. On the question of the power of this Court to review actuations of military
tribunals, I adhere to our decision inGo v. Gen. Olivas. 4 That petition for habeas
corpus was dismissed on the basic principle that no jurisdictional question was
raised by the person detained. Nonetheless, this Court made clear what are the
guiding principles to determine its jurisdiction whenever the actuation of a
military tribunal is challenged before it. Thus: "1. This Court in Aquino v. Military
Commission No. 2 ruled that there is no constitutional objection to military
tribunals conducting trials of civilians for certain specified offenses, among
which is kidnapping. That does not preclude the judiciary, of course, from
granting in appropriate cases applications for the return of habeas corpus.
There is, however, this limitation. The jurisdictional question must be squarely
raised. That is a doctrine implicit in the In re Carr 1902 decision, the opinion
being penned by Justice Willard. The leading case of Payomo v. Floyd, a 1922
decision, made it explicit. As set forth by its ponente, Justice Street: "The next
point to be observed upon it that, where the detained person is held in restraint
by virtue of a judgment rendered by a military or naval court, tribunal, or
officer, no court entertaining an application for the writ of habeas corpus has
authority to review the proceedings of that tribunal, court, or officer in the
sense of determining whether the judgment was erroneous. The only question
to be considered is whether the court, tribunal, or officer rendering the
judgment had jurisdiction to entertain the case and render judgment at all. As
was said by the Supreme Court of the United States in a case where the writ of
habeas corpus had been sued out to liberate a person detained by virtue of the
sentence of a court-martial, the civil courts exercise no supervisory or
correcting power by the writ of habeas corpus over the proceedings of a courtmartial and no mere errors in their proceedings are open to consideration. "The
single inquiry, the test, is jurisdiction. That being established, the habeas
corpus must be denied and the petitioner remanded. That wanting, it must be
sustained and the petitioner discharged." ... As otherwise stated the rule is that
the proceedings of a military or naval court cannot be reviewed upon habeas
corpus when it appears that such tribunal had jurisdiction over the offense
charged and that the offender was a person amenable to its authority." The first
Supreme Court decision after the Liberation in 1945, Cabiling v. Prison Officer,
reiterated such a doctrine. As set forth in the opinion of Chief Justice Moran: "It
is alleged in the petition for habeas corpus filed in his behalf that he is illegally
detained, the General Court-Martial having no jurisdiction to try and convict him
for the crime charged. ... [The only] question to be determined is whether or

121

not the General Court-Martial was vested with jurisdiction to try and convict the
petitioner for the crime of murder. There seems to be no doubt that it had such
jurisdiction. According to Article of War 12 "General Courts-Martial shall have
power to try any person subject to military law for any crime or offense made
punishable by these articles, ... " The petitioner, being a staff sergeant of the
Philippine Scouts, United States Army, is a person subject to military law, under
Article of War 2, and in time of war, the crime of murder committed by a person
subject to military law, comes within the jurisdiction of a court-martial, in
accordance with Article of War 92." 2. What minimizes the difficulty facing a
detained person, triable by a military tribunal, is this categorical
pronouncement by Justice Antonio, speaking for the Court, in the
aforesaid Aquino v. Military Commission decision: "It is important to note here
that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be
heard by himself and counsel to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf, and to be exempt from being a witness against himself. As in trial before
civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in
general, are "bound to observe the fundamental rules of law and principles of
justice observed and expounded by the civil judicature" ... There is, therefore,
no justification for petitioner's contention that such military tribunals are
concerned primarily with the conviction of an accused and that proceedings
therein involve the complete destruction and abolition of petitioner's
constitutional rights." Such being the case, the well-settled doctrine announced
as early as 1924 by Justice Malcolm in Conde v. Rivera and subsequently
reiterated, the latest case being Gumabon v. Director of Prisons that came out
in 1971, to the effect that a denial of a constitutional right may oust the Court
of jurisdiction, finds pertinence. In this petition, however, counsel failed to
invoke such a principle, relying instead on Jovito Go not falling within
Proclamation No. 1081. There is plausibility to the argument that under the
ruling in Aquino v. Ponce Enrile, the offense for which Go was indicted is not
included in the crime of insurrection or rebellion which supplied the basis for
preventive detention under martial law proclamation. That is not decisive of the
controversy before us in view of the fact, as mentioned above, that a military
tribunal is vested with jurisdiction where the prosecution is one for
kidnapping." 5
2. I am for the reexamination of the doctrine that the suspension of the
privilege of habeas corpus carries with it the suspension of the right to bail.
That was my view as one of the counsel in Hernandez v. Montesa, 6 heard and
thereafter decided in one opinion with Nava v. Gatmaitan. As set forth in the
dissenting opinion of Justice Teehankee, the majority was of that view but
unfortunately there was one vote short of the necessary six affirmative votes at

that time. It is quite understandable if I find nothing objectionable in his opinion


when he cited extensively from Tanada and Fernando on the Constitution of the
Philippines Annotated. 7
3. A few additional observations. The petition made mention of the efforts of
counsel to have the President transfer the cases to the civil courts. The success
of such endeavor would be for me a cause for gratification. It would mean that
the lifting of martial law would likewise put an end to the jurisdiction of military
tribunals over civilians, necessitated by the past period of emergency. At any
rate, to the extent that the evidence before respondent Military Commission
found in the records was offered with due regard to the constitutional rights of
an accused, it could still be relied upon by the court to which the cases may be
transferred. In the event that such efforts would not be attended to with
success, it would be desirable, to my way of thinking, if there be only one
military commission to continue with the trial of petitioners. There is this last
point. The opinion of the United States Supreme Court in Dennis v. United
States 8 and Scales v. United States 9 were cited in the ponencia. The later case,
as made clear in the opinion of Justice Harlan while upholding the applicability
of the Smith Act likewise emphasized that such statute requires proof of a
specific intent to bring about the violent overthrow of the government and
proof of "active" as distinguished from mere "nominal" or "passive,"
membership. Nonetheless, the more liberal view which for me expresses the
current state of American constitutional law is that set forth in Brandenburg v.
Ohio 10 decided in 1969 at the end of the last term of the Warren Court. To cite
from the opinion of the United States Supreme Court: "These later decisions
have fashioned the principle that the constitutional guarantees of free speech
and free press do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action." 11
TEEHANKEE, J., dissenting:
The principal questions presented in the case at bar assert (1) the
constitutional right of civilians like petitioners to the judicial process of civilian
trials by the regular civil courts composed of judges trained in the law whose
objectivity and independence are protected by tenure and undiminished salary
and are nurtured by the judicial tradition as against the executive process of
trial by military tribunals composed of military officers, specially so with the
lifting of martial law on January 17, 1981 through the President's Proclamation
No. 2045, and (2) petitioners' constitutional right to bail unless it could be
shown that evidence of guilt for the capital offense of subversion for which they
are charged were strong. I dissent from the majority decision's dismissal of the
petition and denial of these constitutional rights invoked by them.

122

I. On the first question of the right of civilians to trial by judicial process, I


dissent o the grounds stated in my separate opinions in Aquino vs. Military
Commission No. 2 1 and in the latest cases this year of Buscayno vs. Enrile 2,
Sison vs. Enrile 3 , and Luneta vs. Special Military Commission No. 1. 4
These cases were all decided before the President's issuance of Proclamation
No. 2045 on January 17, 1981 revoking his previous proclamations of martial
law (Nos. 1081 and 1104) as well as General Order No. 8, and directing that
"the Military tribunals created pursuant thereto are hereby dissolved upon final
determination of cases pending therein which may not be transferred to the
civil courts without irreparable prejudice to the state in view of the rules on
double jeopardy, or other circumstances which render further prosecution of
the cases difficult, if not impossible."
In Sison particularly, the Court in dismissing the petition, unanimously noted
that "(T)he President of the Philippines has announced that the military
tribunals are being phased out. It is reported that the Ministry of Justice is now
taking steps to transfer cases pending before the military tribunals to the civil
courts. Hence, the issues raised by the petitioners have become moot and
academic."
With the official lifting of martial law under Proclamation No. 2045 and the
revocation thereunder of General Order No. 8 creating military tribunals, and
pursuant to the Court's abovequoted pronouncement in Sison on the phaseout
of military tribunals, there is no longer any justification for continuing to subject
petitioners-civilians to trial by military commissions in derogation of the judicial
power vested exclusively in the civil courts.
As stressed in my separate opinion in Aquino, civilians like petitioners placed on
trial for offenses under general law are entitled to trial by judicial process, not
by executive or military process. Judicial power is vested by the Constitution
exclusively in the Supreme Court and in such inferior courts as are duly
established by law. Military commissions or tribunals are not courts and do not
form part of the judicial system. Since we are not enemy-occupied territory nor
are we under a military government, the military tribunals cannot try and
exercise jurisdiction over civilians for civil offenses committed by them which
are properly cognizable by the civil courts that have remained open and have
been regularly functioning.
As was held in a leading U.S. Supreme Court case, 5 "the assertion of military
authority over civilians [discharged servicemen] cannot rest on the President's
power as Commander-in-Chief or on any theory of martial law." The late Justice
Hugo Black speaking for that Court aptly pointed out that "the presiding officer
at a court martial [or military commission] is not a judge whose objectivity and

independence are protected by tenure and undiminished salary and nurtured


by the judicial tradition, but is a military law officer. Substantially different rules
of evidence and procedure apply in military trials. Apart from these differences,
the suggestion of the possibility of influence on the actions of the court-martial
by the officer who convenes it, selects its members and the counsel on both
sides, and who usually has direct command authority over its members is a
pervasive one in military law, despite strenuous efforts to eliminate the
danger," and "(A) Court-Martial is not yet an independent instrument of justice
but remains to a significant degree a specialized part of the over-all mechanism
by which military discipline is preserved," and ex-servicemen should be given
"the benefits of a civilian court trial when they are actually civilians . . . . Free
countries of the world have tried to restrict military tribunals to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline among troops
in active service."
Finally, it should be noted that there has been no showing by respondents that
the cases against petitioners fall within the only exception provided in
Proclamation
No.
2045 6 wherein the military tribunals which are therein dissolved may make
a "final determination " to wit, "cases pendingtherein which may not be
transferred to the civil courts without irreparable prejudice to the State in view
of rules on double jeopardy, or other circumstances which render further
prosecution of the cases difficult, if not impossible." Certainly, neither the
respondents nor the State claim, much less have shown, that the transfer of
petitioners' cases to the civil courts would result in "irreparable prejudice" to
the State because of double jeopardy or that such transfer to the civil courts
would render further prosecution "difficult, if not impossible" in the face of
petitioners' assertion and insistence that the military tribunals have no
jurisdiction over them as civilians.
II. On the second question on the right of petitioners to bail, absent a showing
of strong evidence of guilt of the capital offense of subversion, notwithstanding
the saving. clause in Proclamation No. 2045 maintaining the suspension of the
privilege of the writ of habeas corpus as to them as persons detained for
rebellion and subversion, I reiterate my adherence to the majority holding in
the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs.
Montesa 7 (although it failed one vote short of the required majority of six
affirmative votes at the time ) as expounded by then Chief Justice Ricardo Paras
and Associate Justice (later Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after formal indictment in
court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are entitled to the right
to bail. As stressed by then Chief Justice Paras, "(T)he right to bail, along with
the right of an accused to be heard by himself and counsel, to be informed of

123

the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortioriimply the
suspension of all his other rights (even the rights to be tried by a court) that
may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable."
I cannot improve on the presentation of the rationale of the failed majority in
the cited right to bail cases as made in the oft-cited work of Tanada and
Fernando, and herewith reproduce the same:
In Nava v. Gatmaitan and Hernandez v. Montesa, the question
presented before the Supreme Court was the effect on the
right to bail of the suspension of the writ of habeas corpus. For
lack of one vital vote, to make a majority of six as required by
the Judiciary Act, the Supreme Court missed an opportunity to
speak in unmistakable language that constitutional rights
mean what they say and that the Constitution is supreme,
emergency to the contrary notwithstanding. Respondent
judges in the above two petitions ruled that the petitioners
were included among those coming within the terms of the
suspension of the privilege of the writ of habeas corpus and
were for that reason not entitled to their constitutional right to
bail Upon the matter being taken before the Supreme Court,
five of the nine Justices who voted on the question were of the
opinion that petitioners under the Constitution have the right
to bail unless it could be shown that evidence of guilt for the
capital offense of which they were charged were strong. In
thus arriving at that conclusion, the above five justices merely
applied literally the terms of the controlling constitutional
provision.

suspension of the right to bail they would


have very easily provided that all persons
shall before conviction be bailable by
sufficient sureties, except those charged with
capital offenses when evidence of guilt is
strong and except when the privilege of the
writ of habeas corpus is suspended. As stated
in the case of Ex Parte Milligan. 4 Wall. 2, 18
L. ed. 297, the Constitution limited the
suspension to only one great right, leaving
the rest to remain forever inviolable.
Justice Tuason had no doubts on the matter
either:
To the plea that the security of the State
would be jeopardized by the release of the
defendants on bail, the answer is that the
existence of danger is never a justification for
courts to tamper with the fundamental rights
expressly granted by the Constitution. These
rights are immutable, inflexible, yielding to no
pressure of convenience, expediency or the
so-called
"judicial
statesmanship."
The
Legislature itself cannot infringe them, and no
court
conscious
of
its
responsibilities
limitations would do so. If the Bill of Rights are
incompatible with stable government and a
menace to the Nation, let the Constitution be
amended, or abolished. It is trite to say that,
while the Constitution stands, the courts of
justice as the repository of civil liberty are
bound to protect and maintain undiluted
individual rights.
From Justice Bengzon, ...

As Chief Justice Paras expressed it:


* * * The privilege of the writ of habeas corpus
and the right to bail guaranteed under the Bill
of Rights are separate and co-equal. If the
intention of the framers of the Constitution
was that the suspension of the privilege of the
writ of habeas corpus carries or implies the

there is a cogent and forceful presentation of the argument


that respect for constitutional rights would aid in the fight
against Communism in the Philippines.
And in my opinion, one of the surest means to
ease the uprising is a sincere demonstration
of this Government's adherence to the

124

principles of the Constitution together with an


impartial application thereof to all citizens,
whether dissidents or not. Let the rebels have
no reason to apprehend that their comrades
now under custody are being railroaded into
Muntinlupa,
without
benefit
of
those
fundamental privileges which the experience
of the ages has deemed essential for the
protection of all persons accused of crane
before the tribunal of justice. Give them the
assurance that the judiciary, ever mindful of
its sacred mission, will not, thru faulty or
misplaced devotion, uphold any doubtful
claims of Governmental power in diminution
of individual rights, but will always cling to the
principles uttered long ago by Chief Justice
Marshall that when in doubt as to the
construction of the Constitution, "the Courts
will favor personal liberty." (Ex parte Burford 3
Cranch, & U.S., Law Ed. Book 2, at p. 495). 8
III. A final word on the statements in the main opinion 9 that would deny to this
Supreme Court the right to "review the rulings and proceedings of the military
commission" or at best limit such review "to decisions of the Court of Military
Appeals 10 in cases appealed to it from the military commission." It must first be
noted that these statements do not carry the affirmance of a majority of the
Court that would unsettle or overthrow this Courts consistent exercise of its
judicial power and jurisdiction through the prerogative writs of certiorari and
prohibition or habeas corpus over cases, including military commissions (in
whatever stage of the proceedings), where a violation or denial of constitutional
rights is asserted by the aggrieved party, although not always with successful
results. In this very case, the Court did again exercise, with the required
concurrence of at least eight (8) members, its jurisdiction over proceedings in
the military commissions per its Resolution of October 22, 1981 through the
issuance of a temporary restraining order enjoining respondent military
commissions "from proceeding with the trial of petitioners . . . .until otherwise
ordered by the Court."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-23127 April 29, 1971


FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,
vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF
PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendantappellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.

FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if any, to be
attached to a statute subsequently adjudged invalid, is decisive of this appeal
from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now
appellee, was able to obtain a favorable judgment in her suit against
defendant, now appellant Philippine National Bank, permanently enjoining the
other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an
extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to
appellant Bank to secure a loan declared no longer enforceable, the
prescriptive period having lapsed. There was thus a failure to sustain the
defense raised by appellant that if the moratorium under an Executive Order
and later an Act subsequently found unconstitutional were to be counted in the
computation, then the right to foreclose the mortgage was still subsisting. In
arriving at such a conclusion, the lower court manifested a tenacious adherence
to the inflexible view that an unconstitutional act is not a law, creating no rights
and imposing no duties, and thus as inoperative as if it had never been. It was
oblivious to the force of the principle adopted by this Court that while a
statute's repugnancy to the fundamental law deprives it of its character as a
juridical norm, its having been operative prior to its being nullified is a fact that
is not devoid of legal consequences. As will hereafter be explained, such a
failing of the lower court resulted in an erroneous decision. We find for
appellant Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of
P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered covering property described in

125

T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the
balance due on said loan was in the amount of P1,294.00. As early as July 13 of
the same year, defendant instituted extra-judicial foreclosure proceedings in
the office of defendant Provincial Sheriff of Pangasinan for the recovery of the
balance of the loan remaining unpaid. Plaintiff countered with his suit against
both defendants on August 10, 1959, her main allegation being that the
mortgage sought to be foreclosed had long prescribed, fifteen years having
elapsed from the date of maturity, July 19, 1944. She sought and was able to
obtain a writ of preliminary injunction against defendant Provincial Sheriff,
which was made permanent in the decision now on appeal. Defendant Bank in
its answer prayed for the dismissal of the suit as even on plaintiff's own theory
the defense of prescription would not be available if the period from March 10,
1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the
subsequent legislative act 2 extending the period of moratorium was declared
invalid, were to be deducted from the computation of the time during which the
bank took no legal steps for the recovery of the loan. As noted, the lower court
did not find such contention persuasive and decided the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there
being a failure on the part of the lower court to adhere to the applicable
constitutional doctrine as to the effect to be given to a statute subsequently
declared invalid.
1. The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a municipal
ordinance likewise suffering from that infirmity, cannot be the source of any
legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being
to all intents and purposes a mere scrap of paper. As the new Civil Code puts it:
"When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern. Administrative or executive
acts, orders and regulations shall be valid only when they are not contrary to
the laws of the Constitution. 3 It is understandable why it should be so, the
Constitution being supreme and paramount. Any legislative or executive act
contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may
not however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary,
in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions.
What could be more fitting than that in a subsequent litigation regard be had to
what has been done while such legislative or executive act was in operation
and presumed to be valid in all respects. It is now accepted as a doctrine that

prior to its being nullified, its existence as a fact must be reckoned with. This is
merely to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or
executive measure is valid, a period of time may have elapsed before it can
exercise the power of judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and justice then, if there be
no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence
of a statute, prior to such a determination [of unconstitutionality], is an
operative fact and may have consequences which cannot justly be ignored. The
past cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and
particular conduct, private and official." 4 This language has been quoted with
approval in a resolution inAraneta v. Hill 5 and the decision in Manila Motor Co.,
Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power
legislation intended to promote public welfare but adversely affecting property
rights is involved. While subject to be assailed on due process, equal protection
and non-impairment grounds, all that is required to avoid the corrosion of
invalidity is that the rational basis or reasonableness test is satisfied. The
legislature on the whole is not likely to allow an enactment suffering, to
paraphrase Cardozo, from the infirmity of out running the bounds of reason and
resulting in sheer oppression. It may be of course that if challenged, an adverse
judgment could be the result, as its running counter to the Constitution could
still be shown. In the meanwhile though, in the normal course of things, it has
been acted upon by the public and accepted as valid. To ignore such a fact
would indeed be the fruitful parent of injustice. Moreover, as its constitutionality
is conditioned on its being fair or reasonable, which in turn is dependent on the
actual situation, never static but subject to change, a measure valid when
enacted may subsequently, due to altered circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the
moratorium legislation, which continued Executive Order No. 32, issued by the
then President Osmea, suspending the enforcement of payment of all debts
and other monetary obligations payable by war sufferers. So it was explicitly
held in Rutter v. Esteban 8 where such enactment was considered in 1953
"unreasonable and oppressive, and should not be prolonged a minute longer,
and, therefore, the same should be declared null and void and without
effect." 9 At the time of the issuance of the above Executive Order in 1945 and
of the passage of such Act in 1948, there was a factual justification for the
moratorium. The Philippines was confronted with an emergency of impressive

126

magnitude at the time of her liberation from the Japanese military forces in
1945. Business was at a standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over until some semblance of
normalcy could be restored and an improvement in her economy noted. No
wonder then that the suspension of enforcement of payment of the obligations
then existing was declared first by executive order and then by legislation. The
Supreme Court was right therefore in rejecting the contention that on its face,
the Moratorium Law was unconstitutional, amounting as it did to the
impairment of the obligation of contracts. Considering the circumstances
confronting the legitimate government upon its return to the Philippines, some
such remedial device was needed and badly so. An unyielding insistence then
on the rights to property on the part of the creditors was not likely to meet with
judicial sympathy. Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was
its satisfying the rational basis test, not as of the time of its enactment but as
of such date. Clearly, if then it were found unreasonable, the right to nonimpairment of contractual obligations must prevail over the assertion of
community power to remedy an existing evil. The Supreme Court was
convinced that such indeed was the case. As stated in the opinion of Justice
Bautista Angelo: "But we should not lose sight of the fact that these obligations
had been pending since 1945 as a result of the issuance of Executive Orders
Nos. 25 and 32 and at present their enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would continue to be unenforceable
during the eight-year period granted to prewar debtors to afford them an
opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they
could affect a liquidation of their investment dating as far back as 1941. This
period seems to us unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, the relief accorded works
injustice to creditors who are practically left at the mercy of the debtors. Their
hope to effect collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law the debtor is
not even required to pay interest during the operation of the relief, unlike
similar statutes in the United States. 10 The conclusion to which the foregoing
considerations inevitably led was that as of the time of adjudication, it was
apparent that Republic Act No. 342 could not survive the test of validity.
Executive Order No. 32 should likewise be nullified. That before the decision
they were not constitutionally infirm was admitted expressly. There is all the
more reason then to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a
valid governmental response to the plight of the debtors who were war

sufferers, this Court has made clear its view in a series of cases impressive in
their number and unanimity that during the eight-year period that Executive
Order No. 32 and Republic Act No. 342 were in force, prescription did not run.
So
it
has
been
held
from Day
v.
Court
of
First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last
year. What is deplorable is that as of the time of the lower court decision on
January 27, 1960, at least eight decisions had left no doubt as to the
prescriptive period being tolled in the meanwhile prior to such adjudication of
invalidity. 13 Speaking of the opposite view entertained by the lower court, the
present Chief Justice, in Liboro v. Finance and Mining Investments Corp. 14 has
categorized it as having been "explicitly and consistently rejected by this
Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From
July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial
foreclosure proceedings were started by appellant Bank, the time consumed is
six days short of fifteen years. The prescriptive period was tolled however, from
March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953,
when the decision of Rutter v. Esteban was promulgated, covering eight years,
two months and eight days. Obviously then, when resort was had extrajudicially to the foreclosure of the mortgage obligation, there was time to spare
before prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of
plaintiff filed August 10, 1959 dismissed. No costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.

127

SECTION 2. This Executive Order shall take effect immediately.


CRUZ, J.:

Done in the City of Manila, this 25th day of October, in the


year of Our Lord, nineteen hundred and eighty.

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. 626A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive
Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against
inter-provincial movement of carabaos by transporting
carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the
disposition of the carabaos and carabeef subject of the
violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such
that henceforth, no carabao regardless of age, sex, physical
condition or purpose and no carabeef shall be transported
from one province to another. The carabao or carabeef
transported in violation of this Executive Order as amended
shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat
Inspection Commission may ay see fit, in the case of carabeef,
and to deserving farmers through dispersal as the Director of
Animal Industry may see fit, in the case of carabaos.

(SGD.) FERDINAND E. MARCOS


President
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.

128

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

129

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. ...

130

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.

there is no reason either to prohibit their transfer as, not to be flippant dead
meat.

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.

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.

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

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.

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.

131

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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15127

May 30, 1961

EMETERIO CUI, plaintiff-appellant,


vs.
ARELLANO UNIVERSITY, defendant-appellee.
G.A.S.
Sipin,
Jr.,
E. Voltaire Garcia for defendant-appellee.

for

plaintiff-appellant.

CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of
Manila, absolving defendant Arellano University from plaintiff's complaint, with
costs against the plaintiff, and dismissing defendant's counter claim, for
insufficiency of proof thereon.
In the language of the decision appealed from:

132

The essential facts of this case are short and undisputed. As


established by the agreement of facts Exhibits X and by the respective
oral and documentary evidence introduced by the parties, it appears
conclusive that plaintiff, before the school year 1948-1949 took up
preparatory law course in the defendant University. After finishing his
preparatory law course plaintiff enrolled in the College of Law of the
defendant from the school year 1948-1949. Plaintiff finished his law
studies in the defendant university up to and including the first
semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R.
Capistrano, brother of the mother of plaintiff, was the dean of the
College of Law and legal counsel of the defendant university. Plaintiff
enrolled for the last semester of his law studies in the defendant
university but failed to pay his tuition fees because his uncle Dean
Francisco R. Capistrano having severed his connection with defendant
and having accepted the deanship and chancellorship of the College of
Law of Abad Santos University, plaintiff left the defendant's law college
and enrolled for the last semester of his fourth year law in the college
of law of the Abad Santos University graduating from the college of law
of the latter university. Plaintiff, during all the time he was studying law
in defendant university was awarded scholarship grants, for scholastic
merit, so that his semestral tuition fees were returned to him after the
ends of semester and when his scholarship grants were awarded to
him. The whole amount of tuition fees paid by plaintiff to defendant
and refunded to him by the latter from the first semester up to and
including the first semester of his last year in the college of law or the
fourth year, is in total P1,033.87. After graduating in law from Abad
Santos University he applied to take the bar examination. To secure
permission to take the bar he needed the transcripts of his records in
defendant Arellano University. Plaintiff petitioned the latter to issue to
him the needed transcripts. The defendant refused until after he had
paid back the P1,033 87 which defendant refunded to him as above
stated. As he could not take the bar examination without those
transcripts, plaintiff paid to defendant the said sum under protest. This
is the sum which plaintiff seeks to recover from defendant in this case.
Before defendant awarded to plaintiff the scholarship grants as above
stated, he was made to sign the following contract covenant and
agreement:
"In consideration of the scholarship granted to me by the University, I
hereby waive my right to transfer to another school without having
refunded to the University (defendant) the equivalent of my
scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued
Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed
to "All heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show
that some schools offer full or partial scholarships to deserving
students for excellence in scholarship or for leadership in extracurricular activities. Such inducements to poor but gifted students
should be encouraged. But to stipulate the condition that such
scholarships are good only if the students concerned continue in the
same school nullifies the principle of merit in the award of these
scholarships.
2. When students are given full or partial scholarships, it is understood
that such scholarships are merited and earned. The amount in tuition
and other fees corresponding to these scholarships should not be
subsequently charged to the recipient students when they decide to
quit school or to transfer to another institution. Scholarships should not
be offered merely to attract and keep students in a school.
3. Several complaints have actually been received from students who
have enjoyed scholarships, full or partial, to the effect that they could
not transfer to other schools since their credentials would not be
released unless they would pay the fees corresponding to the period of
the scholarships. Where the Bureau believes that the right of the
student to transfer is being denied on this ground, it reserves the right
to authorize such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked
the Bureau of Private Schools to pass upon the issue on his right to secure the
transcript of his record in defendant University, without being required to
refund the sum of P1,033.87; that the Bureau of Private Schools upheld the
position taken by the plaintiff and so advised the defendant; and that, this
notwithstanding, the latter refused to issue said transcript of records, unless
said refund were made, and even recommended to said Bureau that it issue a
written order directing the defendant to release said transcript of record, "so
that the case may be presented to the court for judicial action." As above
stated, plaintiff was, accordingly, constrained to pay, and did pay under protest,
said sum of P1,033.87, in order that he could take the bar examination in 1953.
Subsequently, he brought this action for the recovery of said amount, aside
from P2,000 as moral damages, P500 as exemplary damages, P2,000 as
attorney's fees, and P500 as expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of
Private Schools, namely, that the provisions of its contract with plaintiff are
valid and binding and that the memorandum above-referred to is null and void.
It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as
attorney's fees.

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The issue in this case is whether the above quoted provision of the contract
between plaintiff and the defendant, whereby the former waived his right to
transfer to another school without refunding to the latter the equivalent of his
scholarships in cash, is valid or not. The lower court resolved this question in
the affirmative, upon the ground that the aforementioned memorandum of the
Director of Private Schools is not a law; that the provisions thereof are advisory,
not mandatory in nature; and that, although the contractual provision "may be
unethical, yet it was more unethical for plaintiff to quit studying with the
defendant without good reasons and simply because he wanted to follow the
example of his uncle." Moreover, defendant maintains in its brief that the
aforementioned memorandum of the Director of Private Schools is null and void
because said officer had no authority to issue it, and because it had been
neither approved by the corresponding department head nor published in the
official gazette.
We do not deem it necessary or advisable to consider as the lower court did,
the question whether plaintiff had sufficient reasons or not to transfer from
defendant University to the Abad Santos University. The nature of the issue
before us, and its far reaching effects, transcend personal equations and
demand a determination of the case from a high impersonal plane. Neither do
we deem it essential to pass upon the validity of said Memorandum No. 38, for,
regardless of the same, we are of the opinion that the stipulation in question is
contrary to public policy and, hence, null and void. The aforesaid memorandum
merely incorporates a sound principle of public policy. As the Director of Private
Schools correctly pointed, out in his letter, Exhibit B, to the defendant,
There is one more point that merits refutation and that is whether or
not the contract entered into between Cui and Arellano University on
September 10, 1951 was void as against public policy. In the case of
Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case
127, the court said: 'In determining a public policy of the state, courts
are limited to a consideration of the Constitution, the judicial decisions,
the statutes, and the practice of government officers.' It might take
more than a government bureau or office to lay down or establish a
public policy, as alleged in your communication, but courts consider
the practices of government officials as one of the four factors in
determining a public policy of the state. It has been consistently held in
America that under the principles relating to the doctrine of public
policy, as applied to the law of contracts, courts of justice will not
recognize or uphold a transaction which its object, operation, or
tendency is calculated to be prejudicial to the public welfare, to sound
morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S.
139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y.
359). If Arellano University understood clearly the real essence of
scholarships and the motives which prompted this office to issue
Memorandum No. 38, s. 1949, it should have not entered into a
contract of waiver with Cui on September 10, 1951, which is a direct
violation of our Memorandum and an open challenge to the authority of
the Director of Private Schools because the contract was repugnant to
sound morality and civic honesty. And finally, in Gabriel vs. Monte de
Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to

declare a contract void as against public policy, a court must find that
the contract as to consideration or the thing to be done, contravenes
some established interest of society, or is inconsistent with sound
policy and good morals or tends clearly to undermine the security of
individual rights. The policy enunciated in Memorandum No. 38, s.
1949 is sound policy. Scholarship are awarded in recognition of merit
not to keep outstanding students in school to bolster its prestige. In the
understanding of that university scholarships award is a business
scheme designed to increase the business potential of an education
institution. Thus conceived it is not only inconsistent with sound policy
but also good morals. But what is morals? Manresa has this definition.
It is good customs; those generally accepted principles of morality
which have received some kind of social and practical confirmation.
The practice of awarding scholarships to attract students and keep
them in school is not good customs nor has it received some kind of
social and practical confirmation except in some private institutions as
in Arellano University. The University of the Philippines which
implements Section 5 of Article XIV of the Constitution with reference
to the giving of free scholarships to gifted children, does not require
scholars to reimburse the corresponding value of the scholarships if
they transfer to other schools. So also with the leading colleges and
universities of the United States after which our educational practices
or policies are patterned. In these institutions scholarships are
granted not to attract and to keep brilliant students in school for their
propaganda mine but to reward merit or help gifted students in whom
society has an established interest or a first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one
shall be entered sentencing the defendant to pay to the plaintiff the sum of
P1,033.87, with interest thereon at the legal rate from September 1, 1954, date
of the institution of this case, as well as the costs, and dismissing defendant's
counterclaim. It is so ordered.

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