Thus, an Information was filed against petitioner for the crime of
G.R. No. 180016 April 29, 2014 estafa, which reads as follows:
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45
of the Rules of Court, dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set aside the Decision1
dated March 22, 2007 and Resolution2 dated September 5, 2007 of
the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC),
Branch 46, San Fernando City, finding the petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph
(1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the Admiral
Royale Casino in Olongapo City sometime in 1990. Private
complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of
jewelry for sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a consequence,
he turned over to petitioner the following items: an 18k diamond ring
for men; a woman's bracelet; one (1) men's necklace and another
men's bracelet, with an aggregate value of ₱98,000.00, as evidenced
by a receipt of even date. They both agreed that petitioner shall remit
the proceeds of the sale, and/or, if unsold, to return the same items,
within a period of 60 days. The period expired without petitioner
remitting the proceeds of the sale or returning the pieces of jewelry.
When private complainant was able to meet petitioner, the latter
promised the former that he will pay the value of the said items
entrusted to him, but to no avail.
1
That on or about the fifth (5th) day of July 1991, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00;
one (1) three-baht men's bracelet, 22k, worth ₱25,000.00; one (1)
two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total
amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine
currency, under expressed obligation on the part of said accused to
remit the proceeds of the sale of the said items or to return the same,
if not sold, said accused, once in possession of the said items, with
intent to defraud, and with unfaithfulness and abuse of confidence,
and far from complying with his aforestated obligation, did then and
there wilfully, unlawfully and feloniously misappropriate, misapply
and convert to his own personal use and benefit the aforesaid
jewelries (sic) or the proceeds of the sale thereof, and despite repeated
demands, the accused failed and refused to return the said items or to
remit the amount of Ninety- Eight Thousand Pesos (₱98,000.00),
Philippine currency, to the damage and prejudice of said Danilo
Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy. On the other hand, the defense
presented the lone testimony of petitioner, which can be summarized,
as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans
to Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private
complainant.
However, he admitted obtaining a loan from Balajadia sometime in
1989 for which he was made to sign a blank receipt. He claimed that
the same receipt was then dated May 2, 1991 and used as evidence
against him for the supposed agreement to sell the subject pieces of
jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of
the crime charged in the Information. The dispositive portion of the
decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315,
paragraph one (1), subparagraph (b) of the Revised Penal
Code;
there being no offsetting generic aggravating nor ordinary
mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the
penalty of deprivation of liberty consisting of an imprisonment
under the Indeterminate Sentence Law of FOUR (4) YEARS
AND TWO (2) MONTHS of Prision Correccional in its medium
period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT
(8) MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy
the amount of ₱98,000.00 as actual damages, and to pay the
costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal
of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed
Judgment dated July 30, 2004 of the RTC of San Fernando
City (P), Branch 46, is hereby AFFIRMED with MODIFICATION
on the imposable prison term, such that accused-appellant
shall suffer the indeterminate penalty of 4 years and 2 months
of prision correccional, as minimum, to 8 years of prision
mayor, as maximum, plus 1 year for each additional
2
₱10,000.00, or a total of 7 years. The rest of the decision
stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed
with this Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
T H E L O W E R C O U RT ' S F I N D I N G T H AT T H E C R I M I N A L
INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER
ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN
WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED,
IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME
ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS
MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY
THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS
PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE
WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS
OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED
TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE
STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General
(OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner
failed to object to their admissibility.
The information was not defective inasmuch as it sufficiently
established the designation of the offense and the acts
complained of.
The prosecution sufficiently established all the elements of the
crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court affirms the findings of
the trial court, absent any showing that the findings are totally devoid
of support in the records, or that they are so glaringly erroneous as to
constitute grave abuse of discretion.4 Petitioner is of the opinion that
the CA erred in affirming the factual findings of the trial court. He
now comes to this Court raising both procedural and substantive
issues.
According to petitioner, the CA erred in affirming the ruling of the trial
court, admitting in evidence a receipt dated May 2, 1991 marked as
Exhibit "A" and its submarkings, although the same was merely a
3
photocopy, thus, violating the best evidence rule. However, the records
show that petitioner never objected to the admissibility of the said
evidence at the time it was identified, marked and testified upon in
court by private complainant. The CA also correctly pointed out that
petitioner also failed to raise an objection in his Comment to the
prosecution's formal offer of evidence and even admitted having
signed the said receipt. The established doctrine is that when a party
failed to interpose a timely objection to evidence at the time they were
offered in evidence, such objection shall be considered as waived.5
Another procedural issue raised is, as claimed by petitioner, the
formally defective Information filed against him. He contends that the
Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime
occurred was different from the one testified to by private
complainant. This argument is untenable. The CA did not err in
finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in
the Information cannot be made for the first time on appeal. It is true
that the gravamen of the crime of estafa under Article 315, paragraph
1, subparagraph (b) of the RPC is the appropriation or conversion of
money or property received to the prejudice of the owner6 and that
the time of occurrence is not a material ingredient of the crime, hence,
the exclusion of the period and the wrong date of the occurrence of
the crime, as reflected in the Information, do not make the latter
fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions
constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
provides that a complaint or information is sufficient if it states the
name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and the
place wherein the offense was committed. In the case at bar, a reading
of the subject Information shows compliance with the foregoing rule.
That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the
prosecution's cause considering that Section 11 of the same Rule
requires a statement of the precise time only when the same is a
material ingredient of the offense. The gravamen of the crime of estafa
under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is
the appropriation or conversion of money or property received to the
prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein
charged, the failure of the prosecution to specify the exact date does
not render the Information ipso facto defective. Moreover, the said
date is also near the due date within which accused-appellant should
have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with
the rules. Accused-appellant, therefore, cannot now be allowed to
claim that he was not properly apprised of the charges proferred
against him.7
It must be remembered that petitioner was convicted of the crime of
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
another; and (d) that there is a demand made by the offended party on
the offender.8
Petitioner argues that the last element, which is, that there is a
demand by the offended party on the offender, was not proved. This
Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the
time he gave the pieces of jewelry and asked petitioner about the same
items with the latter promising to pay them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction
could have been finished on 5 July 1991, the question is what happens (sic)
when the deadline came?
a I went looking for him, sir.
q For whom?

a Lito Corpuz, sir.

ART. 315. Swindling (estafa). – Any person who shall defraud another by
any of the means mentioned hereinbelow. q Were you able to look (sic) for him?

1. With unfaithfulness or abuse of confidence, namely: a I looked for him for a week, sir.

q Did you know his residence?

xxxx
a Yes, sir.
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the offender in q Did you go there?
trust or on commission, or for administration, or under any other
a Yes, sir.
obligation involving the duty to make delivery of or to return the same,
even though such obligation be totally or partially guaranteed by a bond; q Did you find him?
or by denying having received such money, goods, or other property; x x x
a No, sir.
The elements of estafa with abuse of confidence are as follows: (a) that
q Were you able to talk to him since 5 July 1991?
money, goods or other personal property is received by the offender in
trust, or on commission, or for administration, or under any other a I talked to him, sir.
obligation involving the duty to make delivery of, or to return the same;
(b) that there be misappropriation or conversion of such money or q How many times?
property by the offender or denial on his part of such receipt; (c) that
such misappropriation or conversion or denial is to the prejudice of a Two times, sir.

4

q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him
where the items are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him
partially or full?
a No, sir.9
No specific type of proof is required to show that there was demand.
10 Demand need not even be formal; it may be verbal.11 The specific
word "demand" need not even be used to show that it has indeed been
made upon the person charged, since even a mere query as to the
whereabouts of the money [in this case, property], would be
tantamount to a demand.12 As expounded in Asejo v. People:13
With regard to the necessity of demand, we agree with the CA that
demand under this kind of estafa need not be formal or written. The
appellate court observed that the law is silent with regard to the form
of demand in estafa under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a
written demand be necessary, the law would have stated so.
Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure
of the prosecution to present a written demand as evidence is not
fatal.
In Tubb v. People, where the complainant merely verbally inquired
about the money entrusted to the accused, we held that the query was
tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to
the existence of the crime of embezzlement. It so happens only that
failure to account, upon demand for funds or property held in trust, is
circumstantial evidence of misappropriation. The same way, however,
5
be established by other proof, such as that introduced in the case at
bar.14
In view of the foregoing and based on the records, the prosecution
was able to prove the existence of all the elements of the crime.
Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with
an obligation to sell or return the same within sixty (60) days, if
unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the prejudice
of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious. Settled is the rule
that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their
deportment on the witness stand, an opportunity denied the appellate
courts, which merely rely on the records of the case.15 The assessment
by the trial court is even conclusive and binding if not tainted with
arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.16 Truth
is established not by the number of witnesses, but by the quality of
their testimonies, for in determining the value and credibility of
evidence, the witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was
deliberating on this case, the question of the continued validity of
imposing on persons convicted of crimes involving property came up.
The legislature apparently pegged these penalties to the value of the
money and property in 1930 when it enacted the Revised Penal Code.
Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to
refer the case to the Court en banc for consideration and resolution.
Thus, several amici curiae were invited at the behest of the Court to
give their academic opinions on the matter. Among those that
graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M.
Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the
Speaker of the House of Representatives. The parties were later heard
on oral arguments before the Court en banc, with Atty. Mario L.
Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the
matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against
property committed today, based on the amount of damage measured
by the value of money eighty years ago in 1932. However, this Court
cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure
in amending the penalties provided for in the said crimes cannot be
remedied through this Court's decisions, as that would be encroaching
upon the power of another branch of the government. This, however,
does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code
(RPC) had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable
by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be made
the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through
the Department of Justice, such statement as may be deemed proper,
without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts
bourne out of a case which is not punishable by law and the court
finds it proper to repress, the remedy is to render the proper decision
and thereafter, report to the Chief Executive, through the Department
6
of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is
not the subject of any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make that act punishable by
law through legislation. The second paragraph is similar to the first
except for the situation wherein the act is already punishable by law
but the corresponding penalty is deemed by the court as excessive.
The remedy therefore, as in the first paragraph is not to suspend the
execution of the sentence but to submit to the Chief Executive the
reasons why the court considers the said penalty to be non-
commensurate with the act committed. Again, the court is tasked to
inform the Chief Executive, this time, of the need for a legislation to
provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Guevara opined that in Article 5, the duty of the court is merely to
report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to
be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act except
those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does
not deem it necessary to prohibit its perpetration with penal sanction,
the Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement of
the provisions of this Code would cause excessive or harsh penalty. All
that the Court could do in such eventuality is to report the matter to
the Chief Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired
Chief Justice Ramon C. Aquino and retired Associate Justice Carolina
C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the
above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the
courts have nothing to do with the wisdom or justness of the penalties
fixed by law. "Whether or not the penalties prescribed by law upon
conviction of violations of particular statutes are too severe or are not
severe enough, are questions as to which commentators on the law
may fairly differ; but it is the duty of the courts to enforce the will of
the legislator in all cases unless it clearly appears that a given penalty
falls within the prohibited class of excessive fines or cruel and unusual
punishment." A petition for clemency should be addressed to the Chief
Executive.22
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of ₱1.00
is equal to ₱100.00 . However, it would be dangerous as this would
result in uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy fluctuates and if
the proposed imposition of the penalties in crimes against property be
adopted, the penalties will not cease to change, thus, making the RPC,
a self-amending law. Had the framers of the RPC intended that to be
so, it should have provided the same, instead, it included the earlier
cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject
penalties in order to conform with the present times. For all we know,
the legislature intends to retain the same penalties in order to deter
the further commission of those punishable acts which have increased
tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those
who violate penal laws. In the crime of Plunder, from its original
minimum amount of ₱100,000,000.00 plundered, the legislature
lowered it to ₱50,000,000.00. In the same way, the legislature
lowered the threshold amount upon which the Anti-Money Laundering
Act may apply, from ₱1,000,000.00 to ₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the
present penalties do not seem to be excessive compared to the
proposed imposition of their corresponding penalties. In Theft, the
provisions state that:
7
Art. 309. Penalties. — Any person guilty of theft shall be
punished by:
1. The penalty of prision mayor in its minimum and medium periods, if
the value of the thing stolen is more than 12,000 pesos but does not
exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in
this paragraph, and one year for each additional ten thousand pesos, but
the total of the penalty which may be imposed shall not exceed twenty
years. In such cases, and in connection with the accessory penalties which
may be imposed and for the purpose of the other provisions of this Code,
the penalty shall be termed prision mayor or reclusion temporal, as the
case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but does
not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but
does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos but
does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does
not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does
not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of the
next preceding article and the value of the thing stolen does not exceed 5
pesos. If such value exceeds said amount, the provision of any of the five
preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
when the value of the thing stolen is not over 5 pesos, and the offender
shall have acted under the impulse of hunger, poverty, or the difficulty of
earning a livelihood for the support of himself or his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the
above-provision states that the penalty is prision correccional in its
minimum and medium periods (6 months and 1 day to 4 years and 2
months). Applying the proposal, if the value of the thing stolen is
₱6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period (2 months
and 1 day to 2 years and 4 months). It would seem that under the
present law, the penalty imposed is almost the same as the penalty
proposed. In fact, after the application of the Indeterminate Sentence
Law under the existing law, the minimum penalty is still lowered by
one degree; hence, the minimum penalty is arresto mayor in its
medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole after
serving the said minimum period and may even apply for probation.
Moreover, under the proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in its maximum period
to arresto mayor in its minimum period (21 days to 2 months) is not
too far from the minimum period under the existing law. Thus, it
would seem that the present penalty imposed under the law is not at
all excessive. The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of
the thing stolen in the crime of Theft and the damage caused in the
crime of Estafa, the gap between the minimum and the maximum
amounts, which is the basis of determining the proper penalty to be
imposed, would be too wide and the penalty imposable would no
longer be commensurate to the act committed and the value of the
thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would
be modified but the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to
₱2,200,000.00, punished by prision mayor minimum to prision mayor
medium (6 years and 1 day to 10 years).
8
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
punishable by arresto mayor medium to prision correccional minimum
(2 months and 1 day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by
arresto mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum
to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would
also be modified but the penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punishable by prision correccional minimum to prision
correccional medium (6 months and 1 day to 4 years and 2 months).
26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional
minimum (4 months and 1 day to 2 years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our xxxx
esteemed amici curiae, is that the incremental penalty provided under
Article 315 of the RPC violates the Equal Protection Clause. JUSTICE PERALTA:

The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness,27 which has
four requisites:
(1) The classification rests on substantial distinctions;
Now, your position is to declare that the incremental penalty should be struck
down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.

(2) It is germane to the purposes of the law; JUSTICE PERALTA:

(3) It is not limited to existing conditions only; and Then what will be the penalty that we are going to impose if the amount is
more than Twenty-Two Thousand (₱22,000.00) Pesos.
(4) It applies equally to all members of the same class.28
DEAN DIOKNO:

According to Dean Diokno, the Incremental Penalty Rule (IPR) does Well, that would be for Congress to ... if this Court will declare the
not rest on substantial distinctions as ₱10,000.00 may have been incremental penalty rule unconstitutional, then that would ... the void should
substantial in the past, but it is not so today, which violates the first be filled by Congress.
requisite; the IPR was devised so that those who commit estafa
JUSTICE PERALTA:
involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals ₱142,000.00 But in your presentation, you were fixing the amount at One Hundred
would receive the same penalty as someone who steals hundreds of Thousand (₱100,000.00) Pesos ...
millions, which violates the second requisite; and, the IPR violates
requisite no. 3, considering that the IPR is limited to existing DEAN DIOKNO:
conditions at the time the law was promulgated, conditions that no
Well, my presen ... (interrupted)
longer exist today.
JUSTICE PERALTA:
Assuming that the Court submits to the argument of Dean Diokno and
declares the incremental penalty in Article 315 unconstitutional for For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-
violating the equal protection clause, what then is the penalty that Two Thousand (₱22,000.00) Pesos you were suggesting an additional penalty
of one (1) year, did I get you right?
should be applied in case the amount of the thing subject matter of the
crime exceeds ₱22,000.00? It seems that the proposition poses more DEAN DIOKNO:
questions than answers, which leads us even more to conclude that
the appropriate remedy is to refer these matters to Congress for them Yes, Your Honor, that is, if the court will take the route of statutory
to exercise their inherent power to legislate laws. interpretation.

JUSTICE PERALTA:
Even Dean Diokno was of the opinion that if the Court declares the
IPR unconstitutional, the remedy is to go to Congress. Thus: Ah ...

9
DEAN DIOKNO:
... and determine the value or the amount.
If the Court will say that they can go beyond the literal wording of the law...
DEAN DIOKNO:
JUSTICE PERALTA:
Yes, Your Honor.
But if we de ... (interrupted)
JUSTICE PERALTA:
DEAN DIOKNO:
That will be equivalent to the incremental penalty of one (1) year in excess of
....then.... Twenty-Two Thousand (₱22,000.00) Pesos.

JUSTICE PERALTA: DEAN DIOKNO:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the Yes, Your Honor.
court cannot fix the amount ...
JUSTICE PERALTA:
DEAN DIOKNO:
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
No, Your Honor.
Thank you, Dean.
JUSTICE PERALTA:
DEAN DIOKNO:
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two
Thousand (₱22,000.00) Pesos. Thank you.
DEAN DIOKNO:
x x x x29
No, Your Honor.
Dean Diokno also contends that Article 315 of the Revised Penal Code
JUSTICE PERALTA: constitutes cruel and unusual punishment. Citing Solem v. Helm,30
Dean Diokno avers that the United States Federal Supreme Court has
The Court cannot do that.
expanded the application of a similar Constitutional provision
DEAN DIOKNO: prohibiting cruel and unusual punishment, to the duration of the
penalty, and not just its form. The court therein ruled that three things
Could not be. must be done to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and gravity of the offense,
JUSTICE PERALTA:
and the harshness of the penalty; (2) Compare the sentences imposed
The only remedy is to go to Congress... on other criminals in the same jurisdiction, i.e., whether more serious
crimes are subject to the same penalty or to less serious penalties; and
DEAN DIOKNO: (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.
Yes, Your Honor.

JUSTICE PERALTA:

10
However, the case of Solem v. Helm cannot be applied in the present
case, because in Solem what respondent therein deemed cruel was the
penalty imposed by the state court of South Dakota after it took into
account the latter’s recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the maximum punishment for
the crime would have been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to life imprisonment
without the possibility of parole under South Dakota’s recidivist
statute because of his six prior felony convictions. Surely, the factual
antecedents of Solem are different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that
the imposable penalty for the offense is high. Nevertheless, the
rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will
essentially gravely abuse the trust and confidence reposed upon her by
her employer. After accepting and allowing the helper to be a member
of the household, thus entrusting upon such person the protection and
safekeeping of the employer’s loved ones and properties, a subsequent
betrayal of that trust is so repulsive as to warrant the necessity of
imposing a higher penalty to deter the commission of such wrongful
acts.
There are other crimes where the penalty of fine and/or imprisonment
are dependent on the subject matter of the crime and which, by
adopting the proposal, may create serious implications. For example,
in the crime of Malversation, the penalty imposed depends on the
amount of the money malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption
of malversation. — Any public officer who, by reason of the
duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or
shall consent, through abandonment or negligence, shall permit
any other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
11
misappropriation or malversation does not exceed two hundred
pesos.
2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos
but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount involved
is more than six thousand pesos but is less than twelve thousand
pesos.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal
in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty
of perpetual special disqualification and a fine equal to the amount of
the funds malversed or equal to the total value of the property
embezzled.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the offender.
Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and
the penalty is prision correccional in its medium and maximum
periods (2 years 4 months and 1 day to 6 years). The penalty may not
be commensurate to the act of embezzlement of ₱20,000.00 compared
to the acts committed by public officials punishable by a special law,
i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act,
specifically Section 3,31 wherein the injury caused to the government
is not generally defined by any monetary amount, the penalty (6 years
and 1 month to 15 years)32 under the Anti-Graft Law will now
become higher. This should not be the case, because in the crime of
malversation, the public official takes advantage of his public position
to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the penalty
of imprisonment or fine is dependent on the cost of the damage
caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now be the value of the
thing unlawfully taken and no longer the element of force employed
in entering the premises. It may likewise cause an inequity between
the crime of Qualified Trespass to Dwelling under Article 280, and this
kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4 months
and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main
justification of the penalty. Whereas in the crime of Robbery with force
upon things, it is punished with a penalty of prision mayor (6 years
and 1 day to 12 years) if the intruder is unarmed without the penalty
of Fine despite the fact that it is not merely the illegal entry that is the
basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium
and maximum periods (2 months and 1 day to 6 months) if the value
of the damage caused exceeds ₱1,000.00, but under the proposal, the
value of the damage will now become ₱100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if
the value of the damaged property does not exceed ₱200.00, the
penalty is arresto menor or a fine of not less than the value of the
damage caused and not more than ₱200.00, if the amount involved
does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the
fine of ₱200.00 under the existing law will now become ₱20,000.00.
12
The amount of Fine under this situation will now become excessive
and afflictive in nature despite the fact that the offense is categorized
as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be
grave implications on the penalty of Fine, but changing the same
through Court decision, either expressly or impliedly, may not be
legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that
may also be affected by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the
National Library and National Museum), Article 312 (Occupation of
real property or usurpation of real rights in property), Article 313
(Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be
affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions), Article 216
(Possession of prohibited interest by a public officer), Article 218
(Failure of accountable officer to render accounts), Article 219 (Failure
of a responsible public officer to render accounts before leaving the
country).
In addition, the proposal will not only affect crimes under the RPC. It
will also affect crimes which are punishable by special penal laws,
such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34 The law treats cutting, gathering,
collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 31036 of the Revised
Penal Code, which means that the penalty imposable for the offense is,
again, based on the value of the timber or forest products involved in
the offense. Now, if we accept the said proposal in the crime of Theft,
will this particular crime of Illegal Logging be amended also in so far
as the penalty is concerned because the penalty is dependent on
Articles 309 and 310 of the RPC? The answer is in the negative
because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these
laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions
of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised
Penal Code by merely making a study of the applicability of the
penalties imposable in the present times. Such is not within the
competence of the Court but of the Legislature which is empowered to
conduct public hearings on the matter, consult legal luminaries and
who, after due proceedings, can decide whether or not to amend or to
revise the questioned law or other laws, or even create a new
legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend
the Revised Penal Code. During the oral arguments, counsel for the
Senate informed the Court that at present, fifty-six (56) bills are now
pending in the Senate seeking to amend the Revised Penal Code,37
each one proposing much needed change and updates to archaic laws
that were promulgated decades ago when the political, socio-
economic, and cultural settings were far different from today’s
conditions.
Verily, the primordial duty of the Court is merely to apply the law in
such a way that it shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to its terms.38
The Court should apply the law in a manner that would give effect to
their letter and spirit, especially when the law is clear as to its intent
and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of
the doctrine of separation of powers by means of judicial legislation.
13
Moreover, it is to be noted that civil indemnity is, technically, not a
penalty or a Fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime
or quasi-delict shall be at least three thousand pesos, even though
there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the
heirs of the latter; such indemnity shall in every case be assessed
and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had
no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called
to the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to
be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as
a kind of monetary restitution or compensation to the victim for the
damage or infraction that was done to the latter by the accused, which
in a sense only covers the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to
pay the victim a sum of money as restitution. Clearly, this award of
civil indemnity due to the death of the victim could not be
contemplated as akin to the value of a thing that is unlawfully taken
which is the basis in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the value of civil indemnity
awarded in some offense cannot be the same reasoning that would
sustain the adoption of the suggested ratio. Also, it is apparent from
Article 2206 that the law only imposes a minimum amount for awards
of civil indemnity, which is ₱3,000.00. The law did not provide for a
ceiling. Thus, although the minimum amount for the award cannot be
changed, increasing the amount awarded as civil indemnity can be
validly modified and increased when the present circumstance
warrants it. Corollarily, moral damages under Article 222039 of the
Civil Code also does not fix the amount of damages that can be
awarded. It is discretionary upon the court, depending on the mental
anguish or the suffering of the private offended party. The amount of
moral damages can, in relation to civil indemnity, be adjusted so long
as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the
offense committed as tantamount to cruel punishment. However, all
penalties are generally harsh, being punitive in nature. Whether or not
they are excessive or amount to cruel punishment is a matter that
should be left to lawmakers. It is the prerogative of the courts to apply
the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio
Carpio’s opinions is that the incremental penalty provision should be
declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of ₱22,000.00, regardless if the actual
amount involved exceeds ₱22,000.00. As suggested, however, from
now until the law is properly amended by Congress, all crimes of
Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when
every accused convicted of the crime of estafa will be meted penalties
different from the proper penalty that should be imposed. Such drastic
twist in the application of the law has no legal basis and directly runs
counter to what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by virtue
of Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more
cruel than that of death. Yet still, from the time the death penalty was
re-imposed until its lifting in June 2006 by Republic Act No. 9346,41
the Court did not impede the imposition of the death penalty on the
14
ground that it is a "cruel punishment" within the purview of Section 19
(1),42 Article III of the Constitution. Ultimately, it was through an act
of Congress suspending the imposition of the death penalty that led to
its non-imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court
cannot declare the provision of the law from which the proper penalty
emanates unconstitutional in the present action. Not only is it violative
of due process, considering that the State and the concerned parties
were not given the opportunity to comment on the subject matter, it is
settled that the constitutionality of a statute cannot be attacked
collaterally because constitutionality issues must be pleaded directly
and not collaterally,43 more so in the present controversy wherein the
issues never touched upon the constitutionality of any of the
provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or character of
the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has
regarded as cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition.
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. The fact that
the punishment authorized by the statute is severe does not make it
cruel and unusual. Expressed in other terms, it has been held that to
come under the ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as to
shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend
the law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely
adjusting the questioned monetary values to the present value of
money based only on the current inflation rate. There are other factors
and variables that need to be taken into consideration, researched,
and deliberated upon before the said values could be accurately and
properly adjusted. The effects on the society, the injured party, the ... and so on. Is the Supreme Court equipped to determine those factors?
accused, its socio-economic impact, and the likes must be
PROFESSOR TADIAR:
painstakingly evaluated and weighed upon in order to arrive at a
wholistic change that all of us believe should be made to our existing There are many ways by which the value of the Philippine Peso can be
law. Dejectedly, the Court is ill-equipped, has no resources, and lacks determined utilizing all of those economic terms.
sufficient personnel to conduct public hearings and sponsor studies
and surveys to validly effect these changes in our Revised Penal Code. JUSTICE PERALTA:
This function clearly and appropriately belongs to Congress. Even
Yeah, but ...
Professor Tadiar concedes to this conclusion, to wit:
xxxx PROFESSOR TADIAR:

JUSTICE PERALTA: And I don’t think it is within the power of the Supreme Court to pass upon
and peg the value to One Hundred (₱100.00) Pesos to ...
Yeah, Just one question. You are suggesting that in order to determine the
value of Peso you have to take into consideration several factors. JUSTICE PERALTA:

PROFESSOR TADIAR: Yeah.

Yes. PROFESSOR TADIAR:

JUSTICE PERALTA: ... One (₱1.00.00) Peso in 1930.

Per capita income. JUSTICE PERALTA:

PROFESSOR TADIAR: That is legislative in nature.

Per capita income. PROFESSOR TADIAR:

JUSTICE PERALTA: That is my position that the Supreme Court ...

Consumer price index. JUSTICE PERALTA:

PROFESSOR TADIAR: Yeah, okay.

Yeah.
PROFESSOR TADIAR:
JUSTICE PERALTA:
... has no power to utilize the power of judicial review to in order to adjust, to
Inflation ... make the adjustment that is a power that belongs to the legislature.

PROFESSOR TADIAR: JUSTICE PERALTA:

Yes. Thank you, Professor.

JUSTICE PERALTA: PROFESSOR TADIAR:

Thank you.46

15
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A.
Sereno echoes the view that the role of the Court is not merely to
dispense justice, but also the active duty to prevent injustice. Thus, in
order to prevent injustice in the present controversy, the Court should
not impose an obsolete penalty pegged eighty three years ago, but
consider the proposed ratio of 1:100 as simply compensating for
inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in
circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving
into the validity of the substance of a statute. The issue is no different
from the Court’s adjustment of indemnity in crimes against persons,
which the Court had previously adjusted in light of current times, like
in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code
mandates a presumption that the lawmaking body intended right and
justice to prevail.
With due respect to the opinions and proposals advanced by the Chief
Justice and my Colleagues, all the proposals ultimately lead to
prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the Court
to legislate laws, such immense power belongs to Congress and the
Court should refrain from crossing this clear-cut divide. With regard to
civil indemnity, as elucidated before, this refers to civil liability which
is awarded to the offended party as a kind of monetary restitution. It
is truly based on the value of money. The same cannot be said on
penalties because, as earlier stated, penalties are not only based on the
value of money, but on several other factors. Further, since the law is
silent as to the maximum amount that can be awarded and only
pegged the minimum sum, increasing the amount granted as civil
indemnity is not proscribed. Thus, it can be adjusted in light of current
conditions.
Now, with regard to the penalty imposed in the present case, the CA
modified the ruling of the RTC. The RTC imposed the indeterminate
penalty of four (4) years and two (2) months of prision correccional in
its medium period, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum period, as maximum.
However, the CA imposed the indeterminate penalty of four (4) years
16
and two (2) months of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum, plus one (1) year for each
additional ₱10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in
Cosme, Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal
Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period to
prision mayor in its minimum period, if the amount of the fraud
is over 12,000 but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such
case, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not
three, periods, in which case, Article 65 of the same Code requires the
division of the time included in the penalty into three equal portions
of time included in the penalty prescribed, forming one period of each
of the three portions. Applying the latter provisions, the maximum,
medium and minimum periods of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
To compute the maximum period of the prescribed penalty, prisión
correccional maximum to prisión mayor minimum should be divided
into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the
RPC.51 In the present case, the amount involved is ₱98,000.00, which
exceeds ₱22,000.00, thus, the maximum penalty imposable should be
within the maximum period of 6 years, 8 months and 21 days to 8
years of prision mayor. Article 315 also states that a period of one year
shall be added to the penalty for every additional ₱10,000.00
defrauded in excess of ₱22,000.00, but in no case shall the total
penalty which may be imposed exceed 20 years.
San Fernando City, finding petitioner guilty beyond reasonable doubt
of the crime of Estafa under Article 315, paragraph (1), sub-paragraph
(b) of the Revised Penal Code, are hereby AFFIRMED with
MODIFICATION that the penalty imposed is the indeterminate penalty
of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS
and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN
(15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this
Decision be furnished the President of the Republic of the Philippines,
through the Department of Justice.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than Also, let a copy of this Decision be furnished the President of the
the ₱22,000.00 ceiling set by law, then, adding one year for each Senate and the Speaker of the House of Representatives.
additional ₱10,000.00, the maximum period of 6 years, 8 months and
21 days to 8 years of prision mayor minimum would be increased by 7 SO ORDERED.
years. Taking the maximum of the prescribed penalty, which is 8 years,
plus an additional 7 years, the maximum of the indeterminate penalty
is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed

by law for the estafa charge against petitioner is prision correccional
maximum to prision mayor minimum, the penalty next lower would
then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be

anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its
primordial duty of lawmaking. The Court should not pre-empt
Congress and usurp its inherent powers of making and enacting laws.
While it may be the most expeditious approach, a short cut by judicial
fiat is a dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5,

2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the
Decision dated March 22, 2007 and Resolution dated September 5,
2007 of the Court of Appeals, which affirmed with modification the
Decision dated July 30, 2004 of the Regional Trial Court, Branch 46,
17
 G.R. No. 102858 July 28, 1997
THE DIRECTOR OF LANDS, petitioner,
vs.
COURT OF APPEALS and TEODORO ABISTADO, substituted by
MARGARITA, MARISSA, MARIBEL, ARNOLD and MARY ANN, all
surnamed ABISTO, respondents.
PANGANIBAN, J.:
Is newspaper publication of the notice of initial hearing in an original
land registration case mandatory or directory?
Statement of the Case
The Court of Appeals ruled that it was merely procedural and that the
failure to cause such publication did not deprive the trial court of its
authority to grant the application. But the Solicitor General disagreed
and thus filed this petition to set aside the Decision1 promulgated on
July 3, 1991 and the subsequent Resolution2 promulgated on
November 19, 1991 by Respondent Court of Appeals3 in CA-G.R. CV
No. 23719. The dispositive portion of the challenged Decision reads:4
WHEREFORE, premises considered, the judgment of dismissal
appealed from is hereby set aside, and a new one entered confirming
the registration and title of applicant, Teodoro Abistado, Filipino, a
resident of Barangay 7, Poblacion Mamburao, Occidental Mindoro,
now deceased and substituted by Margarita, Marissa, Maribel, Arnold
and Mary Ann, all surnamed Abistado, represented by their aunt, Miss
Josefa Abistado, Filipinos, residents of Poblacion Mamburao,
Occidental Mindoro, to the parcel of land covered under MSI (IV-A-8)
315-D located in Poblacion Mamburao, Occidental Mindoro.
The oppositions filed by the Republic of the Philippines and private
oppositor are hereby dismissed for want of evidence.
Upon the finality of this decision and payment of the corresponding
taxes due on this land, let an order for the issuance of a decree be
issued.
18
The Facts
On December 8, 1986, Private Respondent Teodoro Abistado filed a
petition for original registration of his title over 648 square meters of
land under Presidential Decree (PD) No. 1529.5 The application was
docketed as Land Registration Case (LRC) No. 86 and assigned to
Branch 44 of the Regional Trial Court of Mamburao, Occidental
Mindoro.6 However, during the pendency of his petition, applicant
died. Hence, his heirs — Margarita, Marissa, Maribel, Arnold and
Mary Ann, all surnamed Abistado — represented by their aunt Josefa
Abistado, who was appointed their guardian ad litem, were
substituted as applicants.
The land registration court in its decision dated June 13, 1989
dismissed the petition "for want of jurisdiction." However, it found that
the applicants through their predecessors-in-interest had been in open,
continuous, exclusive and peaceful possession of the subject land since
1938.
In dismissing the petition, the trial court reasoned:
. . . However, the Court noted that applicants failed to comply
with the provisions of Section 23 (1) of PD 1529, requiring the
Applicants to publish the notice of Initial Hearing (Exh. "E") in
a newspaper of general circulation in the Philippines. Exhibit
"E" was only published in the Official Gazette (Exhibits "F" and
"G"). Consequently, the Court is of the well considered view
that it has not legally acquired jurisdiction over the instant
application for want of compliance with the mandatory
provision requiring publication of the notice of initial hearing
in a newspaper of general circulation.
The trial court also cited Ministry of Justice Opinion No. 48, Series of
1982, which in its pertinent portion provides:8
It bears emphasis that the publication requirement under Section 23
[of PD 1529] has a two-fold purpose; the first, which is mentioned in
the provision of the aforequoted provision refers to publication in the
Official Gazette, and is jurisdictional; while the second, which is
mentioned in the opening clause of the same paragraph, refers to
publication not only in the Official Gazette but also in a newspaper of
general circulation, and is procedural. Neither one nor the other is
dispensable. As to the first, publication in the Official Gazette is
indispensably necessary because without it, the court would be
powerless to assume jurisdiction over a particular land registration
case. As to the second, publication of the notice of initial hearing also
in a newspaper of general circulation is indispensably necessary as a
requirement of procedural due process; otherwise, any decision that
the court may promulgate in the case would be legally infirm.
Unsatisfied, private respondents appealed to Respondent Court of
Appeals which, as earlier explained, set aside the decision of the trial
court and ordered the registration of the title in the name of Teodoro
Abistado.
The subsequent motion for reconsideration was denied in the
challenged CA Resolution dared November 19, 1991.
The Director of Lands represented by the Solicitor General thus
elevated this recourse to us. This Court notes that the petitioner's
counsel anchored his petition on Rule 65. This is an error. His remedy
should be based on Rule 45 because he is appealing a final disposition
of the Court of Appeals. Hence, we shall treat his petition as one for
review under Rule 45, and not for certiorari under Rule 65.9
The Issue
Petitioner alleges that Respondent Court of Appeals committed "grave
abuse of discretion"10 in holding —
. . . that publication of the petition for registration of title in
LRC Case No. 86 need not be published in a newspaper of
general circulation, and in not dismissing LRC Case No. 86 for
want of such publication.
Petitioner points out that under Section 23 of PD 1529, the notice of
initial hearing shall be "published both in the Official Gazette and in a
newspaper of general circulation." According to petitioner, publication
in the Official Gazette is "necessary to confer jurisdiction upon the trial
court, and . . . in . . . a newspaper of general circulation to comply
with the notice requirement of due process."11
19
Private respondents, on the other hand, contend that failure to comply
with the requirement of publication in a newspaper of general
circulation is a mere "procedural defect." They add that publication in
the Official Gazette is sufficient to confer jurisdiction.12
In reversing the decision of the trial court, Respondent Court of
Appeals ruled:
. . . although the requirement of publication in the Official
Gazette and in a newspaper of general circulation is couched
in mandatory terms, it cannot be gainsaid that the law also
mandates with equal force that publication in the Official
Gazette shall be sufficient to confer jurisdiction upon the court.
Further, Respondent Court found that the oppositors were afforded the
opportunity "to explain matters fully and present their side." Thus, it
justified its disposition in this wise:
. . . We do not see how the lack of compliance with the
required procedure prejudiced them in any way. Moreover, the
other requirements of: publication in the Official Gazette,
personal notice by mailing, and posting at the site and other
conspicuous places, were complied with and these are
sufficient to notify any party who is minded to make any
objection of the application for registration.
The Court's Ruling
We find for petitioner.
Newspaper Publication Mandatory
The pertinent part of Section 23 of Presidential Decree No. 1529
requiring publication of the notice of initial hearing reads as follows:
Sec. 23. Notice of initial hearing, publication, etc. — The court
shall, within five days from filing of the application, issue an
order setting the date and hour of the initial hearing which shall
 not be earlier than forty-five days nor later than ninety days from
the date of the order.
The public shall be given notice of initial hearing of the application for
land registration by means of (1) publication; (2) mailing; and (3)
posting.
1. By publication. —
Upon receipt of the order of the court setting the time for initial
hearing, the Commissioner of Land Registration shall cause a
notice of initial hearing to be published once in the Official
Gazette and once in a newspaper of general circulation in the
Philippines: Provided, however, that the publication in the
Official Gazette shall be sufficient to confer jurisdiction upon the
court. Said notice shall be addressed to all persons appearing to
have an interest in the land involved including the adjoining
owners so far as known, and "to all whom it may concern." Said
notice shall also require all persons concerned to appear in court
at a certain date and time to show cause why the prayer of said
application shall not be granted.
xxx xxx xxx
Admittedly, the above provision provides in clear and categorical
terms that publication in the Official Gazette suffices to confer
jurisdiction upon the land registration court. However, the question
boils down to whether, absent any publication in a newspaper of
general circulation, the land registration court can validly confirm and
register the title of private respondents.
We answer this query in the negative. This answer is impelled by the
demands of statutory construction and the due process rationale
behind the publication requirement.
The law used the term "shall" in prescribing the work to be done by
the Commissioner of Land Registration upon the latter's receipt of the
court order setting the time for initial hearing. The said word denotes
an imperative and thus indicates the mandatory character of a statute.
15 While concededly such literal mandate is not an absolute rule in
20
statutory construction, as its import ultimately depends upon its
context in the entire provision, we hold that in the present case the
term must be understood in its normal mandatory meaning. In
Republic vs. Marasigan,16 the Court through Mr. Justice Hilario G.
Davide, Jr. held that Section 23 of PD 1529 requires notice of the
initial hearing by means of (1) publication, (2) mailing and (3)
posting, all of which must be complied with. "If the intention of the
law were otherwise, said section would not have stressed in detail the
requirements of mailing of notices to all persons named in the petition
who, per Section 15 of the Decree, include owners of adjoining
properties, and occupants of the land." Indeed, if mailing of notices is
essential, then by parity of reasoning, publication in a newspaper of
general circulation is likewise imperative since the law included such
requirement in its detailed provision.
It should be noted further that land registration is a proceeding in
rem. 17 Being in rem, such proceeding requires constructive seizure of
the land as against all persons, including the state, who have rights to
or interests in the property. An in rem proceeding is validated
essentially through publication. This being so, the process must strictly
be complied with. Otherwise, persons who may be interested or whose
rights may be adversely affected would be barred from contesting an
application which they had no knowledge of. As has been ruled, a
party as an owner seeking the inscription of realty in the land
registration court must prove by satisfactory and conclusive evidence
not only his ownership thereof but the identity of the same, for he is in
the same situation as one who institutes an action for recovery of
realty.18 He must prove his title against the whole world. This task,
which rests upon the applicant, can best be achieved when all persons
concerned — nay, "the whole world" — who have rights to or interests
in the subject property are notified and effectively invited to come to
court and show cause why the application should not be granted. The
elementary norms of due process require that before the claimed
property is taken from concerned parties and registered in the name of
the applicant, said parties must be given notice and opportunity to
oppose.
It may be asked why publication in a newspaper of general circulation
should be deemed mandatory when the law already requires notice by
publication in the Official Gazette as well as by mailing and posting,
all of which have already been complied with in the case at hand. The
reason is due process and the reality that the Official Gazette is not as
widely read and circulated as newspapers and is oftentimes delayed in
its circulation, such that the notices published therein may not reach
the interested parties on time, if at all. Additionally, such parties may
not be owners of neighboring properties, and may in fact not own any
other real estate. In sum, the all-encompassing in rem nature of land
registration cases, the consequences of default orders issued against
the whole world and the objective of disseminating the notice in as
wide a manner as possible demand a mandatory construction of the
requirements for publication, mailing and posting.

Admittedly, there was failure to comply with the explicit publication

requirement of the law. Private respondents did not proffer any
excuse; even if they had, it would not have mattered because the
statute itself allows no excuses. Ineludibly, this Court has no authority
to dispense with such mandatory requirement. The law is
unambiguous and its rationale clear. Time and again, this Court has
declared that where the law speaks in clear and categorical language,
there is no room for interpretation, vacillation or equivocation; there
is room only for application.19 There is no alternative. Thus, the
application for land registration filed by private respondents must be
dismissed without prejudice to reapplication in the future, after all the
legal requisites shall have been duly complied with.

WHEREFORE, the petition is GRANTED and the assailed Decision and

Resolution are REVERSED and SET ASIDE. The application of private
respondent for land registration is DISMISSED without prejudice. No
costs. SO ORDERED

21
G.R. No. 179334 April 21, 2015
SECRETARY OF THE DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS and DISTRICT ENGINEER CELESTINO R. CONTRERAS,
Petitioners,
vs.
SPOUSES HERACLEO and RAMONA TECSON, Respondents.
RESOLUTION
PERALTA, J.:
For resolution is the Motion for Reconsideration1 filed by respondents-
movants spouses Heracleo and Ramona Tecson imploring the Court to
take a second look at its July 1, 2013 Decision, the dispositive portion
of which reads:
WHEREFORE, premises considered, the petition is PARTIALLY
GRANTED. The Court of Appeals Decision dated July 31, 2007 in
CAG.R. CV No. 77997 is MODIFIED, in that the valuation of the
subject property owned by respondents shall be P0.70 instead of
₱1,500.00 per square meter, with interest at six percent (6%) per
annum from the date of taking in 1940 instead of March 17, 1995,
until full payment.2
In view of the contrasting opinions of the members of the Third
Division on the instant motion, and the transcendental importance of
the issue raised herein, the members of the Third Division opted to
refer the issue to the En Banc for resolution.
For a proper perspective, we briefly state the factual background of the
case.
In 1940, the Department of Public Works and Highways (DPWH) took
respondents-movants' subject property without the benefit of
expropriation proceedings for the construction of the MacArthur
Highway. In a letter dated December 15, 1994,respondents-movants
demanded the payment of the fair market value of the subject parcel
of land. Celestino R. Contreras (Contreras), then District Engineer of
the First Bulacan Engineering District of the DPWH, offered to pay for
22
the subject land at the rate of Seventy Centavos (P0.70) per square
meter, per Resolution of the Provincial Appraisal Committee (PAC) of
Bulacan. Unsatisfied with the offer, respondents-movants demanded
the return of their property, or the payment of compensation at the
current fair market value.3 Hence, the complaint for recovery of
possession with damages filed by respondents-movants. Respondents-
movants were able to obtain favorable decisions in the Regional Trial
Court (RTC) and the Court of Appeals (CA), with the subject property
valued at One Thousand Five Hundred Pesos (₱1,500.00) per square
meter, with interest at six percent (6%) per annum.
Petitioners thus elevated the matter to this Court in a petition for
review on certiorari. The only issue resolved by the Court in the
assailed decision is the amount of just compensation which
respondents-movants are entitled to receive from the government for
the taking of their property. Both the RTC and the CA valued the
property at One Thousand Five Hundred Pesos (₱1,500.00) per square
meter, plus six percent (6%) interest from the time of the filing of the
complaint until full payment. We, however, did not agree with both
courts and ruled instead that just compensation should be based on
the value of the property at the time of taking in 1940, which is
Seventy Centavos (P0.70) per square meter.4 In addition, and by way
of compensation, we likewise awarded an interest of six percent (6%)
per annum from 1940 until full payment.5
Aggrieved, respondents-movants hereby move for the reconsideration
of said decision on the following grounds:
A. THE HONORABLE COURT MAY LOOK INTO THE
"JUSTNESS" OF THE MISERABLE AMOUNT OF
COMPENSATION BEING AWARDED TO THE HEREIN
RESPONDENTS; and
B. THE HONORABLE COURT MAY SETTLE FOR A HAPPY
MIDDLE GROUND IN THE NAME OF DOCTRINAL PRECISION
AND SUBSTANTIAL JUSTICE.6
Citing the views of Justices Presbitero J. Velasco, Jr. and Marvic Mario
Victor F. Leonen in their Dissenting and Concurring Opinion and
Separate Opinion, respectively, respondents-movants insist that gross
injustice will result if the amount that will be awarded today will be
based simply on the value of the property at the time of the actual
taking. Hence, as proposed by Justice Leonen, they suggest that a
happy middle ground be achieved by meeting the need for doctrinal
precision and the thirst for substantial justice.7
We maintain our conclusions in the assailed July 1, 2013 Decision
with modification on the amount of interest awarded, as well as the
additional grant of exemplary damages and attorney's fees.
At the outset, it should be stressed that the matter of the validity of
the State's exercise of the power of eminent domain has long been
settled. In fact, in our assailed decision, We have affirmed the ruling of
the CA that the pre-trial order issued on May 17, 2001 has limited the
issues as follows: (1) whether or not the respondents-movants are
entitled to just compensation; (2) whether or not the valuation would
be based on the corresponding value at the time of the taking or at the
time of the filing of the action; and (3) whether or not the
respondents-movants are entitled to damages.8 Moreover, it was held
that for failure of respondents-movants to question the lack of
expropriation proceedings for a long period of time, they are deemed
to have waived and are estopped from assailing the power of the
government to expropriate or the public use for which the power was
exercised.9 What is, therefore, left for determination in the instant
Motion for Reconsideration, in accordance with our Decision dated
July 1, 2013, is the propriety of the amount awarded to respondents
as just compensation.
At this juncture, We hold that the reckoning date for property
valuation in determining the amount of just compensation had already
been addressed and squarely answered in the assailed decision. To be
sure, the justness of the award had been taken into consideration in
arriving at our earlier conclusion.
We have in the past been confronted with the same issues under
similar factual and procedural circumstances. We find no reason to
depart from the doctrines laid down in the earlier cases as we adopted
in the assailed decision. In this regard, we reiterate the doctrines laid
down in the cases of Forfom Development Corporation (Forfom) v.
Philippine National Railways (PNR),10 Eusebio v. Luis,11 Manila
23
International Airport Authority v. Rodriguez,12 and Republic v.
Sarabia.13
In Forfom, PNR entered the property of Forfom in January 1973 for
railroad tracks, facilities and appurtenances for use of the Carmona
Commuter Service without initiating expropriation proceedings. In
1990, Forfom filed a complaint for recovery of possession of real
property and/or damages against PNR. In Eusebio, respondent's parcel
of land was taken in 1980 by the City of Pasig and used as a municipal
road without the appropriate expropriation proceedings. In1996,
respondent filed a complaint for reconveyance and/or damages
against the city government and the mayor. In MIAA, in the early
1970s, petitioner implemented expansion programs for its runway,
necessitating the acquisition and occupation of some of the properties
surrounding its premises. As to respondent's property, no
expropriation proceedings were initiated. In 1997, respondent
initiated a case for accion reivindicatoria with damages against
petitioner. In Republic, sometime in 1956, the Air Transportation
Office (ATO) took possession and control of a portion of a lot situated
in Aklan, registered in the name of respondent, without initiating
expropriation proceedings. Several structures were erected thereon,
including the control tower, the Kalibo crash fire rescue station, the
Kalibo airport terminal, and the Headquarters of the PNP Aviation
Security Group. In 1995,several stores and restaurants were
constructed on the remaining portion of the lot. In 1997, respondent
filed a complaint for recovery of possession with damages against the
storeowners wherein ATO intervened claiming that the storeowners
were its lessees.
These cases stemmed from similar background, that is, government
took control and possession of the subject properties for public use
without initiating expropriation proceedings and without payment of
just compensation; while the landowners failed for a long period of
time to question such government act and later instituted actions for
recovery of possession with damages. In these cases, the Court has
uniformly ruled that the fair market value of the property at the time
of taking is controlling for purposes of computing just compensation.
In Forfom, the payment of just compensation was reckoned from the
time of taking in 1973; in Eusebio, the Court fixed the just
compensation by determining the value of the property at the time of
taking in 1980; in MIAA, the value of the lot at the time of taking in
1972 served as basis for the award of compensation to the owner;
and, in Republic, the Court was convinced that the taking occurred in
1956 and was thus the basis in fixing just compensation.
As in the aforementioned cases, just compensation due respondents-
movants in this case should, therefore, be fixed not as of the time of
payment but at the time of taking in 1940 which is Seventy Centavos
(P0.70) per square meter, and not One Thousand Five Hundred Pesos
(₱1,500.00) per square meter, as valued by the RTC and CA.
While disparity in the above amounts is obvious and may appear
inequitable to respondents-movants as they would be receiving such
outdated valuation after a very long period, it should be noted that the
purpose of just compensation is not to reward the owner for the
property taken but to compensate him for the loss thereof. As such,
the true measure of the property, as upheld by a plethora of cases, is
the market value at the time of the taking, when the loss resulted. This
principle was plainly laid down in Apo Fruits Corporation and Hijo
Plantation, Inc. v. Land Bank of the Philippines,14 to wit:
x x x In Land Bank of the Philippines v. Orilla, a valuation case under
our agrarian reform law, this Court had occasion to state:
Constitutionally, "just compensation" is the sum equivalent to the
market value of the property, broadly described as the price fixed by
the seller in open market in the usual and ordinary course of legal
action and competition, or the fair value of the property as between
the one who receives and the one who desires to sell, it being fixed at
the time of the actual taking by the government. Just compensation is
defined as the full and fair equivalent of the property taken from its
owner by the expropriator. It has been repeatedly stressed by this
Court that the true measure is not the taker's gain but the owner's loss.
The word "just" is used to modify the meaning of the word
"compensation" to convey the idea that the equivalent to be given for
the property to be taken shall be real, substantial, full and ample.
[Emphasis supplied.]15
24
Indeed, the State is not obliged to pay premium to the property owner
for appropriating the latter's property; it is only bound to make good
the loss sustained by the landowner, with due consideration of the
circumstances availing at the time the property was taken. More, the
concept of just compensation does not imply fairness to the property
owner alone. Compensation must also be just to the public, which
ultimately bears the cost of expropriation.16
Notwithstanding the foregoing, we recognize that the owner's loss is
not only his property but also its income-generating potential.17 Thus,
when property is taken, full compensation of its value must
immediately be paid to achieve a fair exchange for the property and
the potential income lost.18 Accordingly, in Apo, we held that the
rationale for imposing the interest is to compensate the petitioners for
the income they would have made had they been properly
compensated for their properties at the time of the taking.19 Thus:
We recognized in Republic v. Court of Appeals the need for prompt
payment and the necessity of the payment of interest to compensate
for any delay in the payment of compensation for property already
taken. We ruled in this case that:
The constitutional limitation of "just compensation" is considered to be
the sum equivalent to the market value of the property, broadly
described to be the price fixed by the seller in open market in the
usual and ordinary course of legal action and competition or the fair
value of the property as between one who receives, and one who
desires to sell, i[f] fixed at the time of the actual taking by the
government. Thus, if property is taken for public use before
compensation is deposited with the court having jurisdiction over the
case, the final compensation must include interest[s] on its just value
to be computed from the time the property is taken to the time when
compensation is actually paid or deposited with the court. In fine,
between the taking of the property and the actual payment, legal
interest[s] accrue in order to place the owner in a position as good as
(but not better than) the position he was in before the taking
occurred.[Emphasis supplied]20
In other words, the just compensation due to the landowners amounts
to an effective forbearance on the part of the State-a proper subject of
interest computed from the time the property was taken until the full
amount of just compensation is paid-in order to eradicate the issue of
the constant variability of the value of the currency over time.21 In the
Court's own words:
The Bulacan trial court, in its 1979 decision, was correct in imposing
interests on the zonal value of the property to be computed from the
time petitioner instituted condemnation proceedings and "took" the
property in September 1969. This allowance of interest on the amount
found to be the value of the property as of the time of the taking
computed, being an effective forbearance, at 12% per annum should
help eliminate the issue of the constant fluctuation and inflation of the
value of the currency over time x x x.22
On this score, a review of the history of the pertinent laws, rules and
regulations, as well as the issuances of the Central Bank (CB)or
Bangko Sentral ng Pilipinas (BSP)is imperative in arriving at the
proper amount of interest to be awarded herein.
On May 1, 1916, Act No. 265523 took effect prescribing an interest
rate of six percent (6%) or such rate as may be prescribed by the
Central Bank Monetary Board (CB-MB)for loans or forbearance of
money, in the absence of express stipulation as to such rate of interest,
to wit:
Section 1. The rate of interest for the loan or forbearance of any
money goods, or credits and the rate allowed in judgments, in the
absence of express contract as to such rate of interest, shall be six
per centum per annum or such rate as may be prescribed by the
Monetary Board of the Central Bank of the Philippines for that
purpose in accordance with the authority hereby granted.
Sec. 1-a. The Monetary Board is hereby authorized to prescribe
the maximum rate or rates of interest for the loan or renewal
thereof or the forbearance of any money, goods or credits, and to
change such rate or rates whenever warranted by prevailing
economic and social conditions.
In the exercise of the authority herein granted, the Monetary Board
may prescribe higher maximum rates for loans of low priority, such as
25
consumer loans or renewals thereof as well as such loans made by
pawnshops finance companies and other similar credit institutions
although the rates prescribed for these institutions need not
necessarily be uniform. The Monetary Board is also authorized to
prescribe different maximum rate or rates for different types of
borrowings, including deposits and deposit substitutes, or loans of
financial intermediaries.24
Under the aforesaid law, any amount of interest paid or stipulated to
be paid in excess of that fixed by law is considered usurious, therefore
unlawful.25
On July 29, 1974, the CB-MB, pursuant to the authority granted to it
under the aforequoted provision, issued Resolution No. 1622.1âwphi1
On even date, Circular No. 416 was issued, implementing MB
Resolution No. 1622, increasing the rate of interest for loans and
forbearance of money to twelve percent (12%) per annum, thus:
By virtue of the authority granted to it under Section 1 of Act No. 2655,
as amended, otherwise known as the "Usury Law," the Monetary Board,
in its Resolution No. 1622 dated July 29, 1974, has prescribed that the
rate of interest for the loan or forbearance of any money, goods or
credits and the rate allowed in judgments, in the absence of express
contract as to such rate of interest, shall be twelve per cent (12%) per
annum.26
The foregoing rate was sustained in CB Circular No. 90527 which took
effect on December 22, 1982, particularly Section 2 thereof, which
states:
Sec. 2. The rate of interest for the loan or forbearance of any money,
goods or credits and the rate allowed in judgments, in the absence of
express contract as to such rate of interest, shall continue to be twelve
per cent (12%) per annum.28
Recently, the BSP Monetary Board (BSP-MB),in its Resolution No. 796
dated May 16, 2013, approved the amendment of Section 2 of Circular
No. 905, Series of 1982, and accordingly, issued Circular No. 799,
Series of 2013, effective July 1, 2013, the pertinent portion of which
reads:
 The Monetary Board, in its Resolution No. 796 dated 16 May 2013,
approved the following revisions governing the rate of interest in the
absence of stipulation in loan contracts, thereby amending Section 2 of
Circular No. 905, Series of 1982:
interest shall be 6% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of
Article 1169 of the Civil Code.33

Section 1. The rate of interest for the loan or forbearance of any money, goods or Applying the foregoing law and jurisprudence, respondents-movants
credits and the rate allowed in judgments, in the absence of an express contract are entitled to interest in the amount of One Million Seven Hundred
as to such rate of interest, shall be six percent (6%) per annum. Eighteen Thousand Eight Hundred Forty-Eight Pesos and Thirty-Two
Centavos (₱1,718,848.32) as of September 30, 2014,34 computed as
Section 2. In view of the above, Subsection X305.1 of the Manual of Regulations
for Banks and Sections 4305Q.1, 4305S.3 and 4303P.1 of the Manual of
follows:
Regulations for Non-Bank Financial Institutions are hereby amended accordingly.
January 1, 194035 to July 28, 1974 P 10,553.4937
This Circular shall take effect on 01 July 2013.29 July 29, 1974 to March 16, 1995 26,126.3138
March 17, 199536to June 30, 2013 232,070.3339
Accordingly, the prevailing interest rate for loans and forbearance of July 1, 2013 to September 30, 2014 250,098.1940
money is six percent (6%) per annum, in the absence of an express Market Value of the Property at the time of
contract as to such rate of interest. taking including interest P 518,848.32

In summary, the interest rates applicable to loans and forbearance of Market value of the property at the time of
money, in the absence of an express contract as to such rate of taking including interest P 518,848.32
interest, for the period of 1940 to present are as follows: Add: Exemplary damages 1,000.000.00
Attorney's fees 200,000.00
Law, Rule and Regulations, Total Amount of Interest due to Respondents-
BSP Issuance Date of Effectivity Interest Rate Movants as of September 30, 2014 ₱1,718,848.16
Act No. 2655 May 1, 1916 6%
CB Circular No. 416 July 29, 1974 12% Considering that respondents-movants only resorted to judicial
CB Circular No. 905 December 22, 1982 12% demand for the payment of the fair market value of the land on March
CB Circular No. 799 July 1, 2013 6% 17, 1995, it is only then that the interest earned shall itself earn
interest.
It is important to note, however, that interest shall be compounded at
the time judicial demand is made pursuant to Article 221230 of the Lastly, from finality of the Court's Resolution on reconsideration until
Civil Code of the Philippines, and sustained in Eastern Shipping Lines full payment, the total amount due to respondents-movants shall earn
v. Court of Appeals,31 then later on in Nacar v. Gallery Frames,32 save a straight six percent (6%) legal interest, pursuant to Circular No. 799
for the reduction of interest rate to 6% for loans or forbearance of and the case of Nacar. Such interest is imposed by reason of the
money, thus: Court's decision and takes the nature of a judicial debt.

1. When the obligation is breached, and it consists in the payment of a
sum of money, i.e., a loan or forbearance of money, the interest due
should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the
time it is judicially demanded. In the absence of stipulation, the rate of
26
Clearly, the award of interest on the value of the land at the time of
taking in 1940 until full payment is adequate compensation to
respondents-movants for the deprivation of their property without the
benefit of expropriation proceedings. Such interest, however meager
or enormous it may be, cannot be inequitable and unconscionable
because it resulted directly from the application of law and
jurisprudence-standards that have taken into account fairness and
equity insetting the interest rates due for the use or forbearance of
money.41 Thus, adding the interest computed to the market value of
the property at the time of taking signifies the real, substantial, full
and ample value of the property. Verily, the same constitutes due
compliance with the constitutional mandate on eminent domain and
serves as a basic measure of fairness. In addition to the foregoing
interest, additional compensation shall be awarded to respondents-
movants by way of exemplary damages and attorney's fees in view of
the government's taking without the benefit of expropriation
proceedings. As held in Eusebio v. Luis,42 an irregularity in an
expropriation proceeding cannot ensue without consequence. Thus,
the Court held that the government agency's illegal occupation of the
owner's property for a very long period of time surely resulted in
pecuniary loss to the owner, to wit:
However, in taking respondents' property without the benefit of
expropriation proceedings and without payment of just compensation,
the City of Pasig clearly acted in utter disregard of respondents'
proprietary rights. Such conduct cannot be countenanced by the
Court. For said illegal taking, the City of Pasig should definitely be
held liable for damages to respondents. Again, in Manila International
Airport Authority v. Rodriguez, the Court held that the government
agency's illegal occupation of the owner's property for a very long
period of time surely resulted in pecuniary loss to the owner. The
Court held as follows:
Such pecuniary loss entitles him to adequate compensation in the form
of actual or compensatory damages, which in this case should be the
legal interest (6%) on the value of the land at the time of taking, from
said point up to full payment by the MIAA. This is based on the
principle that interest "runs as a matter of law and follows from the
right of the landowner to be placed in as good position as money can
accomplish, as of the date of the taking."
The award of interest renders unwarranted the grant of back rentals
as extended by the courts below. In Republic v. Lara, et al., the Court
ruled that the indemnity for rentals is inconsistent with a property
owner's right to be paid legal interest on the value of the property, for
27
if the condemn or is to pay the compensation due to the owners from
the time of the actual taking of their property, the payment of such
compensation is deemed to retro act to the actual taking of the
property; and, hence, there is no basis for claiming rentals from the
time of actual taking. More explicitly, the Court held in Republic v.
Garcellano that:
The uniform rule of this Court, however, is that this compensation
must be, not in the form of rentals, but by way of 'interest from the
date that the company [or entity] exercising the right of eminent
domain take possession of the condemned lands, and the amounts
granted by the court shall cease to earn interest only from the moment
they are paid to the owners or deposited in court x x x.
xxxx
For more than twenty (20) years, the MIAA occupied the subject lot
without the benefit of expropriation proceedings and without the
MIAA exerting efforts to ascertain ownership of the lot and negotiating
with any of the owners of the property. To our mind, these are wanton
and irresponsible acts which should be suppressed and corrected.
Hence, the award of exemplary damages and attorneys fees is in order.
However, while Rodriguez is entitled to such exemplary damages and
attorney's fees, the award granted by the courts below should be
equitably reduced. We hold that Rodriguez is entitled only to
₱200,000.00 as exemplary damages, and attorney's fees equivalent to
one percent (1%) of the amount due.43
Similarly, in Republic v. CA,44 We held that the failure of the
government to initiate an expropriation proceeding to the prejudice of
the landowner may be corrected with the awarding of exemplary
damages, attorney's fees and costs of litigation. Thus:
The Court will not award attorney's fees in light of respondent's choice
not to appeal the CA Decision striking down the award. However, we
find it proper to award temperate and exemplary damages in light of
NIA's misuse of its power of eminent domain. Any arm of the State
that exercises the delegated power of eminent domain must wield that
power with circumspection and utmost regard for procedural
requirements. A government instrumentality that fails to observe the
constitutional guarantees of just compensation and due process abuses
the authority delegated to it, and is liable to the property owner for
damages.
Temperate or moderate damages may be recovered if pecuniary loss
has been suffered but the amount cannot be proved with certainty
from the nature of the case.1âwphi1 Here, the trial and appellate
courts found that the owners were unable to plant palay on 96,655
square meters of the Property for an unspecified period during and
after NIA's construction of the canals in 1972. The passage of time,
however, has made it impossible to determine these losses with any
certainty. NIA also deprived the owners of the Property of possession
of a substantial portion of their land since 1972. Considering the
particular circumstances of this case, an award of ₱150,000 as
temperate damages is reasonable.
NIA's irresponsible exercise of its eminent domain powers also
deserves censure. For more than three decades, NIA has been charging
irrigation fees from respondent and other landowners for the use of
the canals built on the Property, without reimbursing respondent a
single cent for the loss and damage. NIA exhibits a disturbingly
cavalier attitude towards respondent's property rights, rights to due
process of law and to equal protection of the laws. Worse, this is not
the first time NIA has disregarded the rights of private property
owners by refusing to pay just compensation promptly. To dissuade
NIA from continuing this practice and to set an example for other
agencies exercising eminent domain powers, NIA is directed to pay
respondent exemplary damages of ₱250,000.45
Applying the aforequoted doctrines to the present case, considering
that respondents-movants were deprived of beneficial ownership over
their property for more than seventy (70) years without the benefit of
a timely expropriation proceedings, and to serve as a deterrent to the
State from failing to institute such proceedings within the prescribed
period under the law, a grant of exemplary damages in the amount of
One Million Pesos (₱1,000,000.00) is fair and reasonable. Moreover,
an award for attorney's fees in the amount of Two Hundred Thousand
Pesos (₱200,000.00) in favor of respondents-movants is in order.
28
In sum, respondents-movants shall be entitled to an aggregate amount
of One Million Seven Hundred Eighteen Thousand Eight Hundred
Forty-Eight Pesos and Thirty-Two Centavos (₱1,718,848.32) as just
compensation as of September 30, 2014, computed as follows:
Market value of the property at the time
of taking in 1940 including interest P 518,848.32
Add: Exemplary Damages 1,000,000.00
Attorney's fees 200,000.00
Total Amount due to Respondents-
movants as of September 30, 2014 ₱1,718,848.32
This Court is not unaware that at present, stringent laws and rules are
put in place to ensure that owners of real property acquired for
national government infrastructure projects are promptly paid just
compensation. Specifically, Section 4 of Republic Act No. 8974 (R.A.
8974),46 which took effect on November 26, 2000, provides sufficient
guidelines for implementing an expropriation proceeding, to wit:
Section 4. Guidelines for Expropriation Proceedings. - Whenever it is
necessary to acquire real property for the right-of-way or location for
any national government infrastructure project through expropriation,
the appropriate implementing agency shall initiate the expropriation
proceedings before the proper court under the following guidelines:
(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the owner of
the property the amount equivalent to the sum of (1) one hundred
percent (100%) of the value of the property based on the current
relevant zonal valuation of the Bureau of Internal Revenue (BIR); and
(2) the value of the improvements and/or structures as determined
under Section 7 hereof;
(b) In provinces, cities, municipalities and other areas where there is no
zonal valuation, the BIR is hereby mandated within the period of sixty
(60) days from the date of the expropriation case, to come up with a
zonal valuation for said area; and
(c) In case the completion of a government infrastructure project is of
utmost urgency and importance, and there is no existing valuation of
the area concerned, the implementing agency shall immediately pay the
owner of the property its proffered value taking into consideration the
standards prescribed in Section 5 hereof.
Upon compliance with the guidelines abovementioned, the court shall
immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project.
Before the court can issue a Writ of Possession, the implementing
agency shall present to the court a certificate of availability of funds
from the proper official concerned.
In the event that the owner of the property contests the implementing
agency's proffered value, the court shall determine the just
compensation to be paid the owner within sixty (60) days from the
date of filing of the expropriation case. When the decision of the court
becomes final and executory, the implementing agency shall pay the
owner the difference between the amount already paid and the just
compensation as determined by the court.
Failure to comply with the foregoing directives shall subject the
government official or employee concerned to administrative, civil
and/or criminal sanctions, thus:
Section 11. Sanctions. - Violation of any provisions of this Act
shall subject the government official or employee concerned to
appropriate administrative, civil and/or criminal sanctions,
including suspension and/or dismissal from the government
service and forfeiture of benefits. While the foregoing provisions,
being substantive in nature or disturbs substantive rights, cannot
be retroactively applied to the present case, We trust that this
established mechanism will surely deter hasty acquisition of
private properties in the future without the benefit of immediate
payment of the value of the property in accordance with Section 4
of R.A. 8974. This effectively addresses J. Velasco's concerns that
sustaining our earlier rulings on the matter would be licensing
the government to dispense with constitutional requirements in
taking private properties. Moreover, any gap on the procedural
aspect of the expropriation proceedings will be remedied by the
aforequoted provisions.
In effect, R.A. 8974 enshrines a new approach towards eminent
domain that reconciles the inherent unease attending expropriation
proceedings with a position of fundamental equity.47
29
Despite the foregoing developments, however, We emphasize that the
government's failure, to initiate the necessary expropriation
proceedings prior to actual taking cannot simply invalidate the State's
exercise of its eminent domain power, given that the property subject
of expropriation is indubitably devoted for public use, and public
policy imposes upon the public utility the obligation to continue its
services to the public. To hastily nullify said expropriation in the guise
of lack of due process would certainly diminish or weaken one of the
State's inherent powers, the ultimate objective of which is to serve the
greater good. Thus, the non-filing of the case for expropriation will
not necessarily lead to the return of the property to the landowner.
What is left to the landowner is the right of compensation.48
All told, We hold that putting to rest the issue on the validity of the
exercise of eminent domain is neither tantamount to condoning the
acts of the DPWH in disregarding the property rights of respondents-
movants nor giving premium to the government's failure to institute
an expropriation proceeding. This Court had steadfastly adhered to
the doctrine that its first and fundamental duty is the application of
the law according to its express terms, interpretation being called for
only when such literal application is impossible.49 To entertain other
formula for computing just compensation, contrary to those
established by law and jurisprudence, would open varying
interpretation of economic policies - a matter which this Court has no
competence to take cognizance of. Time and again, we have held that
no process of interpretation or construction need be resorted to where
a provision of law peremptorily calls for application.50 Equity and
equitable principles only come into full play when a gap exists in the
law and jurisprudence.51 As we have shown above, established
rulings of this Court are in place for full application to the case at bar,
hence, should be upheld.
WHEREFORE, the motion for reconsideration is hereby DENIED for
lack
of merit. SO ORDERED.
 G.R. no. L-22301 August 30,1967
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARIO MAPA Y MAPULONG, defendant-appellant.
FERNANDO, J.:
The sole question in this appeal from a judgment of conviction by the
lower court is whether or not the appointment to and holding of the
position of a secret agent to the provincial governor would constitute a
sufficient defense to a prosecution for the crime of illegal possession of
firearm and ammunition. We hold that it does not.
The accused in this case was indicted for the above offense in an
information dated August 14, 1962 reading as follows: "The
undersized accuses MARIO MAPA Y MAPULONG of a violation of
Section 878 in connection with Section 2692 of the Revised
Administrative Code, as amended by Commonwealth Act No. 56 and
as further amended by Republic Act No. 4, committed as follows: That
on or about the 13th day of August, 1962, in the City of Manila,
Philippines, the said accused did then and there wilfully and
unlawfully have in his possession and under his custody and control
one home-made revolver (Paltik), Cal. 22, without serial number, with
six (6) rounds of ammunition, without first having secured the
necessary license or permit therefor from the corresponding
authorities. Contrary to law."
When the case was called for hearing on September 3, 1963, the lower
court at the outset asked the counsel for the accused: "May counsel
stipulate that the accused was found in possession of the gun involved
in this case, that he has neither a permit or license to possess the same
and that we can submit the same on a question of law whether or not
an agent of the governor can hold a firearm without a permit issued
by the Philippine Constabulary." After counsel sought from the fiscal
an assurance that he would not question the authenticity of his
exhibits, the understanding being that only a question of law would be
submitted for decision, he explicitly specified such question to be
"whether or not a secret agent is not required to get a license for his
firearm."
30
Upon the lower court stating that the fiscal should examine the
document so that he could pass on their authenticity, the fiscal asked
the following question: "Does the accused admit that this pistol cal. 22
revolver with six rounds of ammunition mentioned in the information
was found in his possession on August 13, 1962, in the City of Manila
without first having secured the necessary license or permit thereof
from the corresponding authority?" The accused, now the appellant,
answered categorically: "Yes, Your Honor." Upon which, the lower
court made a statement: "The accused admits, Yes, and his counsel
Atty. Cabigao also affirms that the accused admits."
Forthwith, the fiscal announced that he was "willing to submit the
same for decision." Counsel for the accused on his part presented four
(4) exhibits consisting of his appointment "as secret agent of the Hon.
Feliciano Leviste," then Governor of Batangas, dated June 2, 1962;1
another document likewise issued by Gov. Leviste also addressed to
the accused directing him to proceed to Manila, Pasay and Quezon
City on a confidential mission;2 the oath of office of the accused as
such secret agent,3 a certificate dated March 11, 1963, to the effect
that the accused "is a secret agent" of Gov. Leviste.4 Counsel for the
accused then stated that with the presentation of the above exhibits he
was "willing to submit the case on the question of whether or not a
secret agent duly appointed and qualified as such of the provincial
governor is exempt from the requirement of having a license of
firearm." The exhibits were admitted and the parties were given time
to file their respective memoranda.
Thereafter on November 27, 1963, the lower court rendered a
decision convicting the accused "of the crime of illegal possession of
firearms and sentenced to an indeterminate penalty of from one year
and one day to two years and to pay the costs. The firearm and
ammunition confiscated from him are forfeited in favor of the
Government."
The only question being one of law, the appeal was taken to this
Court. The decision must be affirmed.
The law is explicit that except as thereafter specifically allowed, "it
shall be unlawful for any person to . . . possess any firearm, detached
parts of firearms or ammunition therefor, or any instrument or
implement used or intended to be used in the manufacture of
firearms, parts of firearms, or ammunition."5 The next section
provides that "firearms and ammunition regularly and lawfully issued
to officers, soldiers, sailors, or marines [of the Armed Forces of the
Philippines], the Philippine Constabulary, guards in the employment of
the Bureau of Prisons, municipal police, provincial governors,
lieutenant governors, provincial treasurers, municipal treasurers,
municipal mayors, and guards of provincial prisoners and jails," are
not covered "when such firearms are in possession of such officials and
public servants for use in the performance of their official duties."6

The law cannot be any clearer. No provision is made for a secret agent.
As such he is not exempt. Our task is equally clear. The first and
fundamental duty of courts is to apply the law. "Construction and
interpretation come only after it has been demonstrated that
application is impossible or inadequate without them."7 The
conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang,8 where a

secret agent was acquitted on appeal on the assumption that the
appointment "of the accused as a secret agent to assist in the
maintenance of peace and order campaigns and detection of crimes,
sufficiently put him within the category of a "peace officer" equivalent
even to a member of the municipal police expressly covered by section
879." Such reliance is misplaced. It is not within the power of this
Court to set aside the clear and explicit mandate of a statutory
provision. To the extent therefore that this decision conflicts with what
was held in People v. Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

31
 G.R. No. 116719 January 18, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PATRICIO AMIGO alias "BEBOT", accused-appellant.
MELO, J.:
Initially, Patricio Amigo was charged with frustrated murder in an
Information reading as follows:
The undersigned accuses the above-named accused of the crime of
FRUSTRATED MURDER, under Art. 248, in relation to Art. 5 of the
Revised Penal Code, committed as follows:
That on or about December 29, 1989, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, armed with a knife, with treachery and
evident premeditation and with intent to kill wilfully, unlawfully and
feloniously attacked, assaulted and stab with said weapon one Benito
Ng Suy, thereby inflicting injuries upon the latter, the following
injuries, to wit:
MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND
LEFT THIGH WITH PENETRATION TO LEFT PLEURAL CAVITY,
D I A P H R A G M S T O M A C H , D U O D E N U M , PA N C R E A S A N D
MIDTRANVERSE COLON.
thus performing all the acts of execution which should have produced
the crime of murder as a consequence but nevertheless, did not
produce it by reason of causes independent of his will, that is, because
of the timely and able medical assistance immediately rendered to the
said Benito Ng Suy.
(p. 1, Rollo.)
to which he pleaded not guilty.
Subsequently, due to the death of the victim, an amended Information
was filed charging now the crime of murder, to wit:
32
That on or about December 29, 1989, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, armed with a knife, with treachery and
evident premeditation and with intent to kill wilfully, unlawfully and
feloniously attacked, assaulted and stabbed with said weapon one
Benito Ng Suy, thereby inflicting upon the latter multiple wounds
which caused his death and the consequent loss and damage to the
heirs of the victim.
(p. 3, Rollo.)
After trial on the merits, the court a quo rendered a decision,
disposing:
WHEREFORE, finding the accused Patricio Amigo guilty beyond
reasonable doubt of the crime of MURDER punishable under Art. 248
of the Revised Penal Code, with no modifying circumstance present,
the accused is hereby sentenced to the penalty of reclusion perpetua,
which is the medium period of the penalty of reclusion temporal in its
maximum to death and to pay the cost; to indemnify the offended
party the amount of P93,214.70 as actual damages and P50,000.00 as
compensatory damages and P50,000.00 as moral damages.
(p. 32, Rollo.)
Reversal thereof is now sought, with accused-appellant arguing that
error was committed by the trial court in imposing or meting out the
penalty of reclusion perpetua against him despite the fact that Sec. 19
(1), Article III of the 1987 Constitution was already in effect when the
offense was committed.
The facts of the case, as briefly summarized in the brief submitted by
the Office of the Solicitor General and as borne out by the evidence,
are as follows:
On December 29, 1989, at around 1:00 P.M., after having spent half-
day at their store, located at No. 166-A, Ramon Magsaysay Avenue,
Davao City, Benito Ng Suy was driving their gray Ford Fiera back
home, situated at the back of Car Asia, Bajada, Davao City. With him
during that time were his daughters, Jocelyn Ng Suy and a younger
one together with his two year old son, who were all seated at the
front seat beside him while a five year old boy was also seated at the
back of the said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March
31, 1992)
On their way home and while traversing the National Highway of
Bajada, Davao City, an orange Toyota Tamaraw driven by one Virgilio
Abogada, suddenly made a left turn in front of the Regional Hospital,
Bajada, Davao City, without noticing the Ford Fiera coming from the
opposite direction. This Tamaraw was heading for Sterlyn Kitchenette,
which was situated at the comer of the said hospital. (TSN, April 29,
1991, p. 4; TSN, March 31, 1992, pp. 3 and 13)
With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Lingling's
vulcanizing shop owned and operated by a certain Galadua. He was
also seated at the right front seat beside Virgilio.
Due to the unexpected veer made by Virgilio, an accidental head on
collision occurred between the Fiera and the Tamaraw, causing a slight
damaged to the right bumper of the latter. (TSN, March 31, 1992, p.
4)
Right after the collision, Benito immediately alighted from the driver's
seat and confronted Virgilio Abogada who also went down from his
vehicle. (TSN, April 29, 1991, p. 5)
Benito, who was a big man with a loud voice told Virgilio, "You were
not looking," to which Virgilio retorted, I did not see you". (TSN, April
29, 1991, p. 16)
While the two drivers where having this verbal confrontation, Patricio
who was merely a passenger of Virgilio also alighted from the front
seat of the Tamaraw and instantaneously approached Benito and
advised the latter to leave since it was merely a small and minor
accident. (TSN, April 29, 1991, pp. 16-18)
A bit irritated with the actuation exhibit by Patricio, Benito rebuked
the former and told him not to interfere, since he had nothing to do
with the accident. (ibid. p. 7)
33
Irked by the comment made by Benito, Patricio sarcastically asked;
"You are Chinese, is it you?" With a ready answer Benito said; "Yes, I
am a Chinese and why?" Patricio in turn replied; So, you are a
Chinese, wait for a while," then left. (ibid. pp. 7 and 19)
Immediately thereafter, Benito ordered Jocelyn to call a policeman,
but after a lapsed of about one minute, Patricio returned and
arrogantly approached Benito, asking the latter once again, "You are a
Chinese, is it not?" To this Benito calmly responded in the affirmative.
(ibid. pp. 7, 19-20)
Upon hearing the response, Patricio mumbled "Ah, so you are a
Chinese," and suddenly took a five inch knife from his waist and
simultaneously stabbed Benito hitting him twice on the chest. (Ibid. p.
20)
After being hit, Benito wounded and sensing that his life was in peril,
tried to evade his assailant by pushing Patricio away and run around
the Tamaraw but Patricio wielding the same knife and not content
with the injuries he had already inflicted, still chased Benito and upon
overtaking the latter embraced him and thrusted his knife on the
victim several times, the last of which hit Benito on the left side of his
body. (ibid. pp. 8, 10, 22)
It was at this juncture that Jocelyn who was still inside the Ford Fiera,
pleading for mercy to spare her father tried to get out of the vehicle
but it was very unfortunate that she could not open its door. (Ibid. p.
10)
Knowing that Patricio was really determined to kill her father by
refusing to heed her pleas, Joselyn shouted for help, since there were
already several people around witnessing that fatal incident, but to
her consternation nobody lifted a single finger to help them. (ibid. pp.
6, 10, 18, 21-22) Only after her father lay seated on the floor of their
Ford Fiera after being hit on the left side of his body that she was able
to open the door of the said vehicle. (Ibid. p 12)
After this precise moment, her younger sister, upon seeing their father
bathing with his own blood, embraced him, causing Patricio to cease
from his ferocious assault and noticing the presence of several people,
he fled. (Ibid. p. 22)
Thereafter, an enraged Jocelyn chased him, but since the assailant ran
faster than her, she was not able to overtake him, thus, she instead
decided to go back to where her father was and carried him inside the
Tamaraw who bumped them and consequently brought him to San
Pedro Hospital where he was attended to at the Emergency Room.
(ibid. p 13)
While at the Emergency Room, Benito who was on a very critical
condition, due to multiple (13) stabbed wounds, was operated by Dr.
Rolando Chiu. After the operation, he was subsequently brought to the
ICU and stayed there for three (3) weeks. (July 12, 1991, pp. 3 and 4)
In a last ditch effort to save his life, having only 10 to 20 percent
survival, Benito was airlifted to Manila and was directly confined at
the Chinese General Hospital. After three (3) weeks of confinement,
Benito expired. CAUSE OF DEATH — SEPSIS (an overwhelming
infection). This means that the infection has already circulated in the
blood all over the body. (ibid. pp. 6-7)
(pp. 59-65, Rollo.)
Accused-appellant contends that under the 1987 Constitution and
prior to the promulgation of Republic Act No. 7659, the death penalty
had been abolished and hence, the penalty that should have been
imposed for the crime of murder committed by accused-appellant
without the attendance of any modifying circumstances, should be
reclusion temporal in its medium period or 17 years, 4 months and 1
day, to 20 years of reclusion temporal.
Reasons out accused-appellant:
. . . Since the death penalty (or capital punishment) is not imposable
when the stabbing and killing happened, the computation of the
penalty should be regarded from reclusion perpetua down and not
from death penalty. Indeed, the appropriate penalty is deducible from
reclusion perpetua down to reclusion temporal in its medium period.
Hence, there being no modifying circumstances present (p. 5 Decision,
34
ibid.), the correct penalty should be in the medium period (Art. 64,
par. 1, Revised Penal Code) which is 17 years, 4 months and 1 day to
20 years of reclusion temporal.
(p. 10, Appellant's Brief, ff. p. 50, Rollo.)
The question raised by accused-appellant was settled by this Court in
People vs. Muñoz (170 SCRA 107 [1989]) thusly:
In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that
"in view of the abolition of the death penalty under Section 19, Article
III of the 1987 Constitution, the penalty that may be imposed for
murder is reclusion temporal in its maximum period to reclusion
perpetua," thereby eliminating death as the original maximum period.
Later, without categorically saying so, the Court, through Justice
Ameurfina A. Melencio-Herrera in People vs. Masangkay and through
Justice Andres R. Narvasa in People vs. Atencio, divided the modified
penalty into three new periods, the limits of which were specified by
Justice Edgardo L. Paras in People vs. Intino, as follows: the lower half
of reclusion temporal maximum as the minimum; the upper half of
reclusion temporal maximum as the medium; and reclusion perpetua
as the maximum.The Court has reconsidered the above cases and,
after extended discussion, come to the conclusion that the doctrine
announced therein does not reflect the intention of the framers as
embodied in Article III, Section 19(1) of the Constitution. This
conclusion is not unanimous, to be sure. Indeed, there is much to be
said of the opposite view, which was in fact shared by many of those
now voting for its reversal. The majority of the Court, however, is of
the belief that the original interpretation should be restored as the
more acceptable reading of the constitutional provision in question.
The advocates of the Masangkay ruling argue that the Constitution
abolished the death penalty and thereby limited the penalty for
murder to the remaining periods, to wit, the minimum and the
medium. These should now be divided into three new periods in
keeping with the three-grade scheme intended by the legislature.
Those who disagree feel that Article III, Section 19(1) merely prohibits
the imposition of the death penalty and has not, by reducing it to
reclusion perpetua, also correspondingly reduced the remaining
penalties. These should be maintained intact.

A reading of Section 19(1) of Article III will readily show that here is
really nothing therein which expressly declares the abolition of the
death penalty. The provision merely says that the death penalty shall
not be imposed unless for compelling reasons involving heinous
crimes the Congress hereafter provides for it and, if already imposed,
shall be reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough. And it is a settled rule of legal
hermeneutics that if the language under consideration is plain, it is
neither necessary nor permissible to resort to extrinsic aids, like the
records of the constitutional convention, for its interpretation.
xxx xxx xxx
The question as we see it is not whether the framers intended to
abolish the death penalty or merely to prevent its imposition.
Whatever the intention was, what we should determine is whether or
not they also meant to require a corresponding modification in the
other periods as a result of the prohibition against the death penalty.
It is definite that such a requirement, if there really was one, is not at
all expressed in Article III, Section 19(1) of the Constitution or
indicated therein by at least clear and unmistakable implication. It
would have been so easy, assuming such intention, to state it
categorically and plainly, leaving no doubts as to its meaning.
One searches in vain for such a statement, express or even implied.
The writer of this opinion makes the personal observation that this
might be still another instance where the framers meant one thing and
said another or — strangely, considering their loquacity elsewhere —
did not say enough.
The original ruling as applied in the Gavarra, Masangkay, Atencio and
Intino cases represented the unanimous thinking of the Court as it was
then constituted. All but two members at that time still sit on the
Court today. If we have seen fit to take a second look at the doctrine
on which we were all agreed before, it is not because of a change in
the composition of this body. It is virtually the same Court that is
changing its mind after reflecting on the question again in the light of
new perspectives. And well it might, and can, for the tenets it lays
35
down are not immutable. The decisions of this Court are not petrified
rules grown rigid once pronounced but vital, growing things subject to
change as all life is. While we are told that the trodden path is best,
this should not prevent us from opening a fresh trial or exploring the
other side or testing a new idea in a spirit of continuing inquiry.
Accordingly, with the hope that "as judges, (we) will be equal to (our)
tasks," whatever that means, we hereby reverse the current doctrine
providing for three new periods for the penalty for murder as reduced
by the Constitution. Instead, we return to our original interpretation
and hold that Article III, Section 19(1) does not change the periods of
the penalty prescribed by Article 248 of the Revised Penal Code except
only insofar as it prohibits the imposition of the death penalty and
reduces it to reclusion perpetua. The range of the medium and
minimum penalties remains unchanged.
The Court realizes that this interpretation may lead to certain
inequities that would not have arisen under Article 248 of the Revised
Penal Code before its modification. Thus, a person originally subject to
the death penalty and another who committed the murder without the
attendance of any modifying circumstance will now be both
punishable with the same medium period although the former is
concededly more guilty than the latter. True enough. But that is the
will not of this Court but of the Constitution. That is a question of
wisdom, not construction. Of some relevance perhaps is the parable in
the Bible of the workman who was paid the stipulated daily wage of
one penny although he had worked longer than others hired later in
the day also paid the same amount. When he complained because he
felt unjustly treated by the hoe jurisdiction of the court over the
person. An appearance may be madt agree with me for a penny?
The problem in any event is addressed not to this Court but to the
Congress. Penalties are prescribed by statute and are essentially and
exclusively legislative. As judges, we can only interpret and apply
them and have no authority to modify them or revise their range as
determined exclusively by the legislature. We should not encroach on
this prerogative of the lawmaking body.
Coming back to the case at bar, we find that there being no generic
aggravating or mitigating circumstance attending the commission of
the offenses, the applicable sentence is the medium period of the
penalty prescribed by Article 248 of the Revised Penal Code which,
conformably to the new doctrine here adopted and announced, is still
reclusion perpetua. This is the penalty we imposed on all the accused-
appellants for each of the three murders they have committed in
conspiracy with the others. The award of civil indemnity for the heirs
of each of the victims is affirmed but the amount thereof is hereby
increased to P30,000.00 in line with the present policy.

(at pp. 120-125.)

The above ruling was reiterated in People vs. Parominog (203 SCRA
673 [1991]) and in People vs. De la Cruz (216 SCRA 476 [1992]).

Finally, accused-appellant claims that the penalty of reclusion perpetua

is too cruel and harsh a penalty and pleads for sympathy. Courts are
not the forum to plead for sympathy. The duty of courts is to apply the
law, disregarding their feeling of sympathy or pity for an accused.
DURA LEX SED LEX. The remedy is elsewhere — clemency from the
executive or an amendment of the law by the legislative, but surely, at
this point, this Court can but apply the law.

WHEREFORE, the appealed decision is hereby AFFIRMED.

SO ORDERED.

36
 G.R. No. 197676 February 4, 2014
REMMAN ENTERPRISES, INC. and CHAMBER OF REAL ESTATE
AND BUILDERS'ASSOCIATION, Petitioners,
vs.
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE
and PROFESSIONAL REGULATION COMMISSION, Respondents.
VILLARAMA, JR., J.:
Assailed in this petition for review under Rule 45 is the Decision1
dated July 12, 2011 of the Regional Trial Court (RTC) of Manila,
Branch 42 denying the petition to declare as unconstitutional Sections
28(a), 29 and 32 of Republic Act (R.A.) No. 9646.
R.A. No. 9646, otherwise known as the "Real Estate Service Act of the
Philippines" was signed into law on June 29, 2009 by President Gloria
Macapagal-Arroyo. It aims to professionalize the real estate service
sector under a regulatory scheme of licensing, registration and
supervision of real estate service practitioners (real estate brokers,
appraisers, assessors, consultants and salespersons) in the country.
Prior to its enactment, real estate service practitioners were under the
supervision of the Department of Trade and Industry (DTI) through
the Bureau of Trade Regulation and Consumer Protection (BTRCP), in
the exercise of its consumer regulation functions. Such authority is
now transferred to the Professional Regulation Commission (PRC)
through the Professional Regulatory Board of Real Estate Service
(PRBRES) created under the new law.
The implementing rules and regulations (IRR) of R.A. No. 9646 were
promulgated on July 21, 2010 by the PRC and PRBRES under
Resolution No. 02, Series of 2010.
On December 7, 2010, herein petitioners Remman Enterprises, Inc.
(REI) and the Chamber of Real Estate and Builders’ Association
(CREBA) instituted Civil Case No. 10-124776 in the Regional Trial
Court of Manila, Branch 42. Petitioners sought to declare as void and
unconstitutional the following provisions of R.A. No. 9646:
37
SEC. 28. Exemptions from the Acts Constituting the Practice of
Real Estate Service. – The provisions of this Act and its rules and
regulations shall not apply to the following:
(a) Any person, natural or juridical, who shall directly perform
by himself/herself the acts mentioned in Section 3 hereof with
reference to his/her or its own property, except real estate
developers;
xxxx
SEC. 29. Prohibition Against the Unauthorized Practice of Real
Estate Service. – No person shall practice or offer to practice real
estate service in the Philippines or offer himself/herself as real
estate service practitioner, or use the title, word, letter, figure or
any sign tending to convey the impression that one is a real estate
service practitioner, or advertise or indicate in any manner
whatsoever that one is qualified to practice the profession, or be
appointed as real property appraiser or assessor in any national
government entity or local government unit, unless he/she has
satisfactorily passed the licensure examination given by the
Board, except as otherwise provided in this Act, a holder of a
valid certificate of registration, and professional identification
card or a valid special/temporary permit duly issued to him/her
by the Board and the Commission, and in the case of real estate
brokers and private appraisers, they have paid the required bond
as hereto provided.
xxxx
SEC. 32. Corporate Practice of the Real Estate Service. – (a) No
partnership or corporation shall engage in the business of real
estate service unless it is duly registered with the Securities and
Exchange Commission (SEC), and the persons authorized to act
for the partnership or corporation are all duly registered and
licensed real estate brokers, appraisers or consultants, as the case
may be. The partnership or corporation shall regularly submit a
list of its real estate service practitioners to the Commission and
to the SEC as part of its annual reportorial requirements. There
shall at least be one (1) licensed real estate broker for every
twenty (20) accredited salespersons.
 (b) Divisions or departments of partnerships and corporations
engaged in marketing or selling any real estate development
project in the regular course of business must be headed by full-
time registered and licensed real estate brokers.
(c) Branch offices of real estate brokers, appraisers or consultants
must be manned by a duly licensed real estate broker, appraiser
or consultant as the case may be.
In case of resignation or termination from employment of a real
estate service practitioner, the same shall be reported by the
employer to the Board within a period not to exceed fifteen (15)
days from the date of effectivity of the resignation or termination.
Subject to the provisions of the Labor Code, a corporation or
partnership may hire the services of registered and licensed real
estate brokers, appraisers or consultants on commission basis to
perform real estate services and the latter shall be deemed
independent contractors and not employees of such corporations.
(Emphasis and underscoring supplied.)
According to petitioners, the new law is constitutionally infirm
because (1) it violates Article VI, Section 26 (1) of the 1987 Philippine
Constitution which mandates that "[e]very bill passed by Congress
shall embrace only one subject which shall be expressed in the title
thereof"; (2) it is in direct conflict with Executive Order (E.O.) No. 648
which transferred the exclusive jurisdiction of the National Housing
Authority (NHA) to regulate the real estate trade and business to the
Human Settlements Commission, now the Housing and Land Use
Regulatory Board (HLURB), which authority includes the issuance of
license to sell of subdivision owners and developers pursuant to
Presidential Decree (P.D.) No. 957; (3) it violates the due process
clause as it impinges on the real estate developers’ most basic
ownership rights, the right to use and dispose property, which is
enshrined in Article 428 of the Civil Code; and (4) Section 28(a) of
R.A. No. 9646 violates the equal protection clause as no substantial
distinctions exist between real estate developers and the exempted
group mentioned since both are property owners dealing with their
own property.
38
Additionally, petitioners contended that the lofty goal of nurturing and
developing a "corps of technically competent, reasonable and
respected professional real estate service practitioners" is not served by
curtailing the right of real estate developers to conduct their business
of selling properties. On the contrary, these restrictions would have
disastrous effects on the real estate industry as the additional cost of
commissions would affect the pricing and affordability of real estate
packages. When that happens, petitioners claimed that the millions of
jobs and billions in revenues that the real estate industry generates for
the government will be a thing of the past.
After a summary hearing, the trial court denied the prayer for issuance
of a writ of preliminary injunction.
On July 12, 2011, the trial court rendered its Decision2 denying the
petition. The trial court held that the assailed provisions are relevant
to the title of the law as they are intended to regulate the practice of
real estate service in the country by ensuring that those who engage in
it shall either be a licensed real estate broker, or under the latter’s
supervision. It likewise found no real discord between E.O. No. 648
and R.A. No. 9646 as the latter does not render nugatory the license to
sell granted by the HLURB to real estate developers, which license
would still subsist. The only difference is that by virtue of the new law,
real estate developers will now be compelled to hire the services of
one licensed real estate broker for every twenty salespersons to guide
and supervise the coterie of salespersons under the employ of the real
estate developers.
On the issue of due process, the trial court said that the questioned
provisions do not preclude property owners from using, enjoying, or
disposing of their own property because they can still develop and sell
their properties except that they have to secure the services of a
licensed real estate broker who shall oversee the actions of the
unlicensed real estate practitioners under their employ. Since the
subject provisions merely prescribe the requirements for the regulation
of the practice of real estate services, these are consistent with a valid
exercise of the State’s police power. The trial court further ruled that
Section 28(a) does not violate the equal protection clause because the
exemption of real estate developers was anchored on reasonable
classification aimed at protecting the buying public from the rampant
misrepresentations often committed by unlicensed real estate
practitioners, and to prevent unscrupulous and unethical real estate
practices from flourishing considering the large number of consumers
in the regular course of business compared to isolated sale
transactions made by private individuals selling their own property.
Hence, this appeal on the following questions of law:
1. Whether there is a justiciable controversy for this Honorable
Court to adjudicate;
2. Whether [R.A. No. 9646] is unconstitutional for violating the
"one title-one subject" rule under Article VI, Section 26 (1) of
the Philippine Constitution;
3. Whether [R.A. No. 9646] is in conflict with PD 957, as
amended by EO 648, with respect to the exclusive jurisdiction
of the HLURB to regulate real estate developers;
4. Whether Sections 28(a), 29, and 32 of [R.A. No. 9646],
insofar as they affect the rights of real estate developers, are
unconstitutional for violating substantive due process; and
5. Whether Section 28(a), which treats real estate developers
differently from other natural or juridical persons who directly
perform acts of real estate service with reference to their own
property, is unconstitutional for violating the equal protection
clause.3
The Court’s Ruling
The petition has no merit.
Justiciable Controversy
The Constitution4 requires as a condition precedent for the exercise of
judicial power the existence of an actual controversy between litigants.
An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible to judicial resolution.5
39
The controversy must be justiciable – definite and concrete – touching
on the legal relations of parties having adverse legal interests, which
may be resolved by a court of law through the application of a law.6 In
other words, the pleadings must show an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof on the other;
that is, it must concern a real and not a merely theoretical question or
issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.7 An actual case is ripe for adjudication
when the act being challenged has a direct adverse effect on the
individual challenging it.8
There is no question here that petitioners who are real estate
developers are entities directly affected by the prohibition on
performing acts constituting practice of real estate service without first
complying with the registration and licensing requirements for brokers
and agents under R.A. No. 9646. The possibility of criminal sanctions
for disobeying the mandate of the new law is likewise real. Asserting
that the prohibition violates their rights as property owners to dispose
of their properties, petitioners challenged on constitutional grounds
the implementation of R.A. No. 9646 which the respondents defended
as a valid legislation pursuant to the State’s police power. The Court
thus finds a justiciable controversy that calls for immediate resolution.
No Violation of One-Title One-Subject Rule
Section 26(1), Article VI of the Constitution states:
SEC. 26 (1). Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
In Fariñas v. The Executive Secretary,9 the Court explained the
provision as follows:
The proscription is aimed against the evils of the so-called omnibus
bills and log-rolling legislation as well as surreptitious and/or
unconsidered encroaches. The provision merely calls for all parts of an
act relating to its subject finding expression in its title.
To determine whether there has been compliance with the
constitutional requirement that the subject of an act shall be expressed
in its title, the Court laid down the rule that –
Constitutional provisions relating to the subject matter and titles of
statutes should not be so narrowly construed as to cripple or impede
the power of legislation. The requirement that the subject of an act
shall be expressed in its title should receive a reasonable and not a
technical construction. It is sufficient if the title be comprehensive
enough reasonably to include the general object which a statute seeks
to effect, without expressing each and every end and means necessary
or convenient for the accomplishing of that object. Mere details need
not be set forth. The title need not be an abstract or index of the Act.
10 (Emphasis supplied.)
The Court has previously ruled that the one-subject requirement under
the Constitution is satisfied if all the parts of the statute are related,
and are germane to the subject matter expressed in the title, or as long
as they are not inconsistent with or foreign to the general subject and
title.11 An act having a single general subject, indicated in the title,
may contain any number of provisions, no matter how diverse they
may be, so long as they are not inconsistent with or foreign to the
general subject, and may be considered in furtherance of such subject
by providing for the method and means of carrying out the general
object.12
It is also well-settled that the "one title-one subject" rule does not
require the Congress to employ in the title of the enactment language
of such precision as to mirror, fully index or catalogue all the contents
and the minute details therein. The rule is sufficiently complied with if
the title is comprehensive enough as to include the general object
which the statute seeks to effect.13 Indeed, this Court has invariably
adopted a liberal rather than technical construction of the rule "so as
not to cripple or impede legislation."14
R.A. No. 9646 is entitled "An Act Regulating the Practice of Real Estate
Service in the Philippines, Creating for the Purpose a Professional
Regulatory Board of Real Estate Service, Appropriating Funds Therefor
and For Other Purposes." Aside from provisions establishing a
regulatory system for the professionalization of the real estate service
40
sector, the new law extended its coverage to real estate developers
with respect to their own properties. Henceforth, real estate
developers are prohibited from performing acts or transactions
constituting real estate service practice without first complying with
registration and licensing requirements for their business, brokers or
agents, appraisers, consultants and salespersons.
Petitioners point out that since partnerships or corporations engaged
in marketing or selling any real estate development project in the
regular course of business are now required to be headed by full-time,
registered and licensed real estate brokers, this requirement
constitutes limitations on the property rights and business prerogatives
of real estate developers which are not all reflected in the title of R.A.
No. 9646. Neither are real estate developers, who are already
regulated under a different law, P.D. No. 957, included in the
definition of real estate service practitioners.
We hold that R.A. No. 9646 does not violate the one-title, one-subject
rule.
The primary objective of R.A. No. 9646 is expressed as follows:
SEC. 2. Declaration of Policy. – The State recognizes the vital role
of real estate service practitioners in the social, political,
economic development and progress of the country by promoting
the real estate market, stimulating economic activity and
enhancing government income from real property-based
transactions. Hence, it shall develop and nurture through proper
and effective regulation and supervision a corps of technically
competent, responsible and respected professional real estate
service practitioners whose standards of practice and service shall
be globally competitive and will promote the growth of the real
estate industry.
We find that the inclusion of real estate developers is germane to the
law’s primary goal of developing "a corps of technically competent,
responsible and respected professional real estate service practitioners
whose standards of practice and service shall be globally competitive
and will promote the growth of the real estate industry." Since the
marketing aspect of real estate development projects entails the
performance of those acts and transactions defined as real estate
service practices under Section 3(g) of R.A. No. 9646, it is logically
covered by the regulatory scheme to professionalize the entire real
estate service sector.
No Conflict Between R.A. No. 9646
and P.D. No. 957, as amended by E.O. No. 648
Petitioners argue that the assailed provisions still cannot be sustained
because they conflict with P.D. No. 957 which decreed that the NHA
shall have "exclusive jurisdiction to regulate the real estate trade and
business." Such jurisdiction includes the authority to issue a license to
sell to real estate developers and to register real estate dealers,
brokers or salesmen upon their fulfillment of certain requirements
under the law. By imposing limitations on real estate developers’
property rights, petitioners contend that R.A. No. 9646 undermines
the licenses to sell issued by the NHA (now the HLURB) to real estate
developers allowing them to sell subdivision lots or condominium
units directly to the public. Because the HLURB has been divested of
its exclusive jurisdiction over real estate developers, the result is an
implied repeal of P.D. No. 957 as amended by E.O. No. 648, which is
not favored in law.
It is a well-settled rule of statutory construction that repeals by
implication are not favored. In order to effect a repeal by implication,
the later statute must be so irreconcilably inconsistent and repugnant
with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the inference
of implied repeal may be drawn, for inconsistency is never presumed.
There must be a showing of repugnance clear and convincing in
character. The language used in the later statute must be such as to
render it irreconcilable with what had been formerly enacted. An
inconsistency that falls short of that standard does not suffice.15
Moreover, the failure to add a specific repealing clause indicates that
the intent was not to repeal any existing law, unless an irreconcilable
inconsistency and repugnancy exist in the terms of the new and old
laws.16
There is nothing in R.A. No. 9646 that repeals any provision of P.D.
No. 957, as amended by E.O. No. 648. P.D. No. 957, otherwise known
41
as "The Subdivision and Condominium Buyers’ Protective Decree,"17
vested the NHA with exclusive jurisdiction to regulate the real estate
trade and business in accordance with its provisions. It empowered the
NHA to register, approve and monitor real estate development projects
and issue licenses to sell to real estate owners and developers. It
further granted the NHA the authority to register and issue/revoke
licenses of brokers, dealers and salesmen engaged in the selling of
subdivision lots and condominium units.
E.O. No. 648, issued on February 7, 1981, reorganized the Human
Settlements Regulatory Commission (HSRC) and transferred the
regulatory functions of the NHA under P.D. 957 to the HSRC. Among
these regulatory functions were the (1) regulation of the real estate
trade and business; (2) registration of subdivision lots and
condominium projects; (3) issuance of license to sell subdivision lots
and condominium units in the registered units; (4) approval of
performance bond and the suspension of license to sell; (5)
registration of dealers, brokers and salesman engaged in the business
of selling subdivision lots or condominium units; and (6) revocation of
registration of dealers, brokers and salesmen.18
E.O. No. 90, issued on December 17, 1986, renamed the HSRC as the
Housing and Land Use Regulatory Board (HLURB) and was designated
as the regulatory body for housing and land development under the
Housing and Urban Development Coordinating Council (HUDCC). To
date, HLURB continues to carry out its mandate to register real estate
brokers and salesmen dealing in condominium, memorial parks and
subdivision projects pursuant to Section 11 of P.D. No. 957, which
reads:
SECTION 11. Registration of Dealers, Brokers and Salesmen. –
No real estate dealer, broker or salesman shall engage in the
business of selling subdivision lots or condominium units unless
he has registered himself with the Authority in accordance with
the provisions of this section.
If the Authority shall find that the applicant is of good repute and has
complied with the applicable rules of the Authority, including the
payment of the prescribed fee, he shall register such applicant as a
dealer, broker or salesman upon filing a bond, or other security in lieu
thereof, in such sum as may be fixed by the Authority conditioned
upon his faithful compliance with the provisions of this Decree:
Provided, that the registration of a salesman shall cease upon the
termination of his employment with a dealer or broker.
Every registration under this section shall expire on the thirty-first day
of December of each year. Renewal of registration for the succeeding
year shall be granted upon written application therefore made not less
than thirty nor more than sixty days before the first day of the ensuing
year and upon payment of the prescribed fee, without the necessity of
filing further statements or information, unless specifically required by
the Authority. All applications filed beyond said period shall be treated
as original applications.
The names and addresses of all persons registered as dealers, brokers,
or salesmen shall be recorded in a Register of Brokers, Dealers and
Salesmen kept in the Authority which shall be open to public
inspection.
On the other hand, Section 29 of R.A. No. 9646 requires as a condition
precedent for all persons who will engage in acts constituting real
estate service, including advertising in any manner one’s qualifications
as a real estate service practitioner, compliance with licensure
examination and other registration requirements including the filing
of a bond for real estate brokers and private appraisers. While Section
11 of P.D. No. 957 imposes registration requirements for dealers,
brokers and salespersons engaged in the selling of subdivision lots and
condominium units, Section 29 of R.A. No. 9646 regulates all real
estate service practitioners whether private or government. While P.D.
No. 957 seeks to supervise brokers and dealers who are engaged in the
sale of subdivision lots and condominium units, R.A. No. 9646 aims to
regulate the real estate service sector in general by professionalizing
their ranks and raising the level of ethical standards for licensed real
estate professionals.
There is no conflict of jurisdiction because the HLURB supervises only
those real estate service practitioners engaged in the sale of
subdivision lots and condominium projects, specifically for violations
of the provisions of P.D. No. 957, and not the entire real estate service
sector which is now under the regulatory powers of the PRBRES.
42
HLURB’s supervision of brokers and dealers to effectively implement
the provisions of P.D. No. 957 does not foreclose regulation of the real
estate service as a profession. Real estate developers already regulated
by the HLURB are now further required to comply with the
professional licensure requirements under R.A. No. 9646, as provided
in Sections 28, 29 and 32. Plainly, there is no inconsistency or
contradiction in the assailed provisions of R.A. No. 9646 and P.D. No.
957, as amended.
The rule is that every statute must be interpreted and brought into
accord with other laws in a way that will form a uniform system of
jurisprudence. The legislature is presumed to have known existing
laws on the subject and not to have enacted conflicting laws.19
Congress, therefore, could not be presumed to have intended Sections
28, 29 and 32 of R.A. No. 9646 to run counter to P.D. No. 957.
No Violation of Due Process
Petitioners contend that the assailed provisions of R.A. No. 9646 are
unduly oppressive and infringe the constitutional rule against
deprivation of property without due process of law. They stress that
real estate developers are now burdened by law to employ licensed
real estate brokers to sell, market and dispose of their properties.
Despite having invested a lot of money, time and resources in their
projects, petitioners aver that real estate developers will still have less
control in managing their business and will be burdened with
additional expenses.
The contention has no basis. There is no deprivation of property as no
restriction on their use and enjoyment of property is caused by the
implementation of R.A. No. 9646. If petitioners as property owners
feel burdened by the new requirement of engaging the services of only
licensed real estate professionals in the sale and marketing of their
properties, such is an unavoidable consequence of a reasonable
regulatory measure.
Indeed, no right is absolute, and the proper regulation of a profession,
calling, business or trade has always been upheld as a legitimate
subject of a valid exercise of the police power of the State particularly
when their conduct affects the execution of legitimate governmental
functions, the preservation of the State, public health and welfare and
public morals.20 In any case, where the liberty curtailed affects at
most the rights of property, the permissible scope of regulatory
measures is certainly much wider. To pretend that licensing or
accreditation requirements violate the due process clause is to ignore
the settled practice, under the mantle of police power, of regulating
entry to the practice of various trades or professions.21
Here, the legislature recognized the importance of professionalizing
the ranks of real estate practitioners by increasing their competence
and raising ethical standards as real property transactions are
"susceptible to manipulation and corruption, especially if they are in
the hands of unqualified persons working under an ineffective
regulatory system." The new regulatory regime aimed to fully tap the
vast potential of the real estate sector for greater contribution to our
gross domestic income, and real estate practitioners "serve a vital role
in spearheading the continuous flow of capital, in boosting investor
confidence, and in promoting overall national progress."22
We thus find R.A. No. 9646 a valid exercise of the State’s police power.
As we said in another case challenging the constitutionality of a law
granting discounts to senior citizens:
The law is a legitimate exercise of police power which, similar to the
power of eminent domain, has general welfare for its object. Police
power is not capable of an exact definition, but has been purposely
veiled in general terms to underscore its comprehensiveness to meet
all exigencies and provide enough room for an efficient and flexible
response to conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as "the most essential,
insistent and the least limitable of powers, extending as it does to all
the great public needs." It is "[t]he power vested in the legislature by
the constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and of the
subjects of the same."
For this reason, when the conditions so demand as determined by the
legislature, property rights must bow to the primacy of police power
43
because property rights, though sheltered by due process, must yield
to general welfare.
Police power as an attribute to promote the common good would be
diluted considerably if on the mere plea of petitioners that they will
suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating the
alleged confiscatory effect of the provision in question, there is no
basis for its nullification in view of the presumption of validity which
every law has in its favor.23 (Emphasis supplied.)
No Violation of Equal Protection Clause
Section 28 of R.A. No. 9646 exempts from its coverage natural and
juridical persons dealing with their own property, and other persons
such as receivers, trustees or assignees in insolvency or bankruptcy
proceedings. However, real estate developers are specifically
mentioned as an exception from those enumerated therein. Petitioners
argue that this provision violates the equal protection clause because it
unjustifiably treats real estate developers differently from those
exempted persons who also own properties and desire to sell them.
They insist that no substantial distinctions exist between ordinary
property owners and real estate developers as the latter, in fact, are
more capable of entering into real estate transactions and do not need
the services of licensed real estate brokers.1âwphi1 They assail the
RTC decision in citing the reported fraudulent practices as basis for
the exclusion of real estate developers from the exempted group of
persons under Section 28(a).
We sustain the trial court’s ruling that R.A. No. 9646 does not violate
the equal protection clause.
In Ichong v. Hernandez,24 the concept of equal protection was
explained as follows:
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which it is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those
persons falling within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825).25
Although the equal protection clause of the Constitution does not
forbid classification, it is imperative that the classification should be
based on real and substantial differences having a reasonable relation
to the subject of the particular legislation.26 If classification is
germane to the purpose of the law, concerns all members of the class,
and applies equally to present and future conditions, the classification
does not violate the equal protection guarantee.27
R.A. No. 9646 was intended to provide institutionalized government
support for the development of "a corps of highly respected,
technically competent, and disciplined real estate service practitioners,
knowledgeable of internationally accepted standards and practice of
the profession."28 Real estate developers at present constitute a sector
that hires or employs the largest number of brokers, salespersons,
appraisers and consultants due to the sheer number of products (lots,
houses and condominium units) they advertise and sell nationwide. As
early as in the ‘70s, there has been a proliferation of errant developers,
operators or sellers who have reneged on their representation and
obligations to comply with government regulations such as the
provision and maintenance of subdivision roads, drainage, sewerage,
water system and other basic requirements. To protect the interest of
home and lot buyers from fraudulent acts and manipulations
perpetrated by these unscrupulous subdivision and condominium
sellers and operators, P.D. No. 957 was issued to strictly regulate
housing and real estate development projects. Hence, in approving
R.A. No. 9646, the legislature rightfully recognized the necessity of
imposing the new licensure requirements to all real estate service
practitioners, including and more importantly, those real estate service
practitioners working for real estate developers. Unlike individuals or
entities having isolated transactions over their own property, real
estate developers sell lots, houses and condominium units in the
ordinary course of business, a business which is highly regulated by
the State to ensure the health and safety of home and lot buyers.
44
The foregoing shows that substantial distinctions do exist between
ordinary property owners exempted under Section 28(a) and real
estate developers like petitioners, and the classification enshrined in
R.A. No. 9646 is reasonable and relevant to its legitimate purpose. The
Court thus rules that R.A. No. 9646 is valid and constitutional.
Since every law is presumed valid, the presumption of
constitutionality can be overcome only by the clearest showing that
there was indeed an infraction of the Constitution, and only when
such a conclusion is reached by the required majority may the Court
pronounce, in the discharge of the duty it cannot escape, that the
challenged act must be struck down.29
Indeed, "all presumptions are indulged in favor of constitutionality;
one who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship
does not render it unconstitutional; that if any reasonable basis may
be conceived which supports the statute, it will be upheld, and the
challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a statute;
and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted."30
WHEREFORE, the petition is DENIED. The Decision dated July 12,
2011 of the Regional Trial Court of Manila, Branch 42 in Civil Case
No. 10-124776 is hereby AFFIRMED and UPHELD.
No pronouncement as to costs.
SO ORDERED.
 G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child
RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court seeking to reverse and set aside the Orders1 dated
February 19, 2010 and September 1, 2010, respectively, of the Regional
Trial Court of Cebu City (RTC-Cebu), which dismissed the criminal case
entitled People of the Philippines v. Ernst Johan Brinkman Van Wilsem,
docketed as Criminal Case No. CBU-85503, for violation of Republic Act
(R.A.) No. 9262, otherwise known as the Anti-Violence Against Women
and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman
Van Wilsem contracted marriage in Holland on September 25, 1990.2 On
January 19, 1994, they were blessed with a son named Roderigo Norjo
Van Wilsem, who at the time of the filing of the instant petition was
sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a
Divorce Decree issued by the appropriate Court of Holland.4 At that time,
their son was only eighteen (18) months old.5 Thereafter, petitioner and
her son came home to the Philippines.6
According to petitioner, respondent made a promise to provide monthly
support to their son in the amount of Two Hundred Fifty (250) Guildene
(which is equivalent to Php17,500.00 more or less).7 However, since the
arrival of petitioner and her son in the Philippines, respondent never gave
support to the son, Roderigo.8
Not long thereafter, respondent cameto the Philippines and remarried in
Pinamungahan, Cebu, and since then, have been residing thereat.9
Respondent and his new wife established a business known as Paree
Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu
City.10 To date, all the parties, including their son, Roderigo, are presently
living in Cebu City.11
45
On August 28, 2009, petitioner, through her counsel, sent a letter
demanding for support from respondent. However, respondent refused to
receive the letter.12
Because of the foregoing circumstances, petitioner filed a complaint
affidavit with the Provincial Prosecutor of Cebu City against respondent
for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s
unjust refusal to support his minor child with petitioner.13 Respondent
submitted his counter-affidavit thereto, to which petitioner also submitted
her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City
issued a Resolution recommending the filing of an information for the
crime charged against herein respondent.
The information, which was filed with the RTC-Cebu and raffled to
Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in
the Municipality of Minglanilla, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did
then and there wilfully, unlawfully and deliberately deprive, refuse and
still continue to deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14) year old minor, of financial support legally due him,
resulting in economic abuse to the victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold
Departure Order against respondent.16 Consequently, respondent was
arrested and, subsequently, posted bail.17 Petitioner also filed a Motion/
Application of Permanent Protection Order to which respondent filed his
Opposition.18 Pending the resolution thereof, respondent was arraigned.
19 Subsequently, without the RTC-Cebu having resolved the application of
the protection order, respondent filed a Motion to Dismiss on the ground
of: (1) lack of jurisdiction over the offense charged; and (2) prescription
of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21
dismissing the instant criminal case against respondent on the ground
that the facts charged in the information do not constitute an offense with
respect to the respondent who is an alien, the dispositive part of which
states:
WHEREFORE, the Court finds that the facts charged in the information do
not constitute an offense with respect to the accused, he being an alien,
and accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for
his provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for Reconsideration thereto
reiterating respondent’s obligation to support their child under Article
19523 of the Family Code, thus, failure to do so makes him liable under
R.A. No. 9262 which "equally applies to all persons in the Philippines who
are obliged to support their minor children regardless of the obligor’s
nationality."24
On September 1, 2010, the lower court issued an Order25 denying
petitioner’s Motion for Reconsideration and reiterating its previous ruling.
Thus:
x x x The arguments therein presented are basically a rehash of
those advanced earlier in the memorandum of the prosecution.
Thus, the court hereby reiterates its ruling that since the accused
is a foreign national he is not subject to our national law (The
Family Code) in regard to a parent’s duty and obligation to
givesupport to his child. Consequently, he cannot be charged of
violating R.A. 9262 for his alleged failure to support his child.
Unless it is conclusively established that R.A. 9262 applies to a
foreigner who fails to give support tohis child, notwithstanding
that he is not bound by our domestic law which mandates a
parent to give such support, it is the considered opinion of the
court that no prima faciecase exists against the accused herein,
hence, the case should be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack
of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
46
Hence, the present Petition for Review on Certiorari raising the following
issues:
1. Whether or not a foreign national has an obligation to support
his minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable
under R.A. No. 9262 for his unjustified failure to support his
minor child.27
At the outset, let it be emphasized that We are taking cognizance of the
instant petition despite the fact that the same was directly lodged with the
Supreme Court, consistent with the ruling in Republic v. Sunvar Realty
Development Corporation,28 which lays down the instances when a
ruling of the trial court may be brought on appeal directly to the Supreme
Court without violating the doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties
from filing a Rule 45 Petition with this Court, in case only
questions of law are raised or involved. This latter situation was
one that petitioners found themselves in when they filed the
instant Petition to raise only questions of law. In Republic v.
Malabanan, the Court clarified the three modes of appeal from
decisions of the RTC, to wit: (1) by ordinary appeal or appeal by
writ of error under Rule 41, whereby judgment was rendered in a
civil or criminal action by the RTC in the exercise of its original
jurisdiction; (2) by a petition for review under Rule 42, whereby
judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before
the Supreme Court under Rule 45. "The first mode of appeal is
taken to the [Court of Appeals] on questions of fact or mixed
questions of fact and law. The second mode of appeal is brought
to the CA on questions of fact, of law, or mixed questions of fact
and law. The third mode of appealis elevated to the Supreme
Court only on questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination
of the probative value of the evidence presented or of the truth or
falsehood of the facts being admitted, and the doubt concerns the correct
application of law and jurisprudence on the matter. The resolution of the
issue must rest solely on what the law provides on the given set of
circumstances.29
Indeed, the issues submitted to us for resolution involve questions of law
– the response thereto concerns the correct application of law and
jurisprudence on a given set of facts, i.e.,whether or not a foreign national
has an obligation to support his minor child under Philippine law; and
whether or not he can be held criminally liable under R.A. No. 9262 for
his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel
question of law concerning the liability of a foreign national who
allegedly commits acts and omissions punishable under special criminal
laws, specifically in relation to family rights and duties. The inimitability
of the factual milieu of the present case, therefore, deserves a definitive
ruling by this Court, which will eventually serve as a guidepost for future
cases. Furthermore, dismissing the instant petition and remanding the
same to the CA would only waste the time, effort and resources of the
courts. Thus, in the present case, considerations of efficiency and
economy in the administration of justice should prevail over the
observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition
meritorious. Nonetheless, we do not fully agree with petitioner’s
contentions.
To determine whether or not a person is criminally liable under R.A. No.
9262, it is imperative that the legal obligation to support exists.
Petitioner invokes Article 19530 of the Family Code, which provides the
parent’s obligation to support his child. Petitioner contends that
notwithstanding the existence of a divorce decree issued in relation to
Article 26 of the Family Code,31 respondent is not excused from
complying with his obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and
clear basis presented by petitioner that she, as well as her minor son, are
entitled to financial support.32 Respondent also added that by reason of
the Divorce Decree, he is not obligated topetitioner for any financial
support.33
On this point, we agree with respondent that petitioner cannot rely on
Article 19534 of the New Civil Code in demanding support from
respondent, who is a foreign citizen, since Article 1535 of the New Civil
Code stresses the principle of nationality. In other words, insofar as
Philippine laws are concerned, specifically the provisions of the Family
47
Code on support, the same only applies to Filipino citizens. By analogy,
the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties.36
The obligation to give support to a child is a matter that falls under family
rights and duties. Since the respondent is a citizen of Holland or the
Netherlands, we agree with the RTC-Cebu that he is subject to the laws of
his country, not to Philippinelaw, as to whether he is obliged to give
support to his child, as well as the consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that –
Furthermore, being still aliens, they are not in position to invoke the
provisions of the Civil Code of the Philippines, for that Code cleaves to the
principle that family rights and duties are governed by their personal law,
i.e.,the laws of the nation to which they belong even when staying in a
foreign country (cf. Civil Code, Article 15).39
It cannot be gainsaid, therefore, that the respondent is not obliged to
support petitioner’s son under Article195 of the Family Code as a
consequence of the Divorce Covenant obtained in Holland. This does not,
however, mean that respondent is not obliged to support petitioner’s son
altogether.
In international law, the party who wants to have a foreign law applied to
a dispute or case has the burden of proving the foreign law.40 In the
present case, respondent hastily concludes that being a national of the
Netherlands, he is governed by such laws on the matter of provision of
and capacity to support.41 While respondent pleaded the laws of the
Netherlands in advancing his position that he is not obliged to support his
son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law
of the Netherlands does not impose upon the parents the obligation to
support their child (either before, during or after the issuance of a divorce
decree), because Llorente v. Court of Appeals,42 has already enunciated
that:
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to takejudicial notice of them. Like any other
fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the
Netherlands in his favor, the doctrine of processual presumption shall
govern. Under this doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the foreign law is the
same as our local or domestic or internal law.44 Thus, since the law of the
Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with
Philippine law, which enforces the obligation of parents to support their
children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce
obtained in a foreign land as well as its legal effects may be recognized in
the Philippines in view of the nationality principle on the matter of status
of persons, the Divorce Covenant presented by respondent does not
completely show that he is notliable to give support to his son after the
divorce decree was issued. Emphasis is placed on petitioner’s allegation
that under the second page of the aforesaid covenant, respondent’s
obligation to support his child is specifically stated,46 which was not
disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national
law of respondent states that parents have no obligation to support their
children or that such obligation is not punishable by law, said law would
still not find applicability,in light of the ruling in Bank of America, NT and
SA v. American Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law on the matter
were properly pleaded and proved in accordance with Section 24, Rule
132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et
al. vs. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound
and established public policy of the forum, the said foreign law, judgment
or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and good
customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a
foreign country.
48
The public policy sought to be protected in the instant case is the principle
imbedded in our jurisdiction proscribing the splitting up of a single cause
of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
—
If two or more suits are instituted on the basis of the same cause of
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. Moreover,
foreign law should not be applied when its application would work
undeniable injustice to the citizens or residents of the forum. To give
justice is the most important function of law; hence, a law, or
judgment or contract that is obviously unjust negates the
fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither
enforce a parent’s obligation to support his child nor penalize the
noncompliance therewith, such obligation is still duly enforceable in the
Philippines because it would be of great injustice to the child to be denied
of financial support when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no
longer liable to support his former wife, in consonance with the ruling in
San Luis v. San Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that
she should no longerbe considered marriedto the alien spouse. Further,
she should not be required to perform her marital duties and obligations.
It held:
To maintain, as private respondent does, that, under our laws, petitioner
has to be considered still married to private respondent and still subject to
a wife's obligations under Article 109, et. seq. of the Civil Code cannot be
just. Petitioner should not be obliged to live together with, observe respect
and fidelity, and render support to private respondent. The latter should
not continue to be one of her heirs with possible rights to conjugal
property. She should not be discriminated against in her own country if
the ends of justice are to be served. (Emphasis added)50
Based on the foregoing legal precepts, we find that respondent may be
made liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly
refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.-
The crime of violence against women and their children is committed
through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to engage
in conduct which the woman or her child has the right to desist from or
desist from conduct which the woman or her child has the right to engage
in, or attempting to restrict or restricting the woman's or her child's
freedom of movement or conduct by force or threat of force, physical or
other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, butnot limited to, the
following acts committed with the purpose or effect of controlling or
restricting the woman's or her child's movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children of
financial support legally due her or her family, or deliberately providing
the woman's children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to
the woman or her child, including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or custody of minor
childrenof access to the woman's child/children.51
Under the aforesaid special law, the deprivation or denial of financial
support to the child is considered anact of violence against women and
children.
against respondent. It is likewise irrefutable that jurisdiction over the
respondent was acquired upon his arrest.
Finally, we do not agree with respondent’s argument that granting, but
not admitting, that there is a legal basis for charging violation of R.A. No.
9262 in the instant case, the criminal liability has been extinguished on
the ground of prescription of crime52 under Section 24 of R.A. No. 9262,
which provides that:
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f)
shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to
5(I) shall prescribe in ten (10) years.
The act of denying support to a child under Section 5(e)(2) and (i) of
R.A. No. 9262 is a continuing offense,53 which started in 1995 but is still
ongoing at present. Accordingly, the crime charged in the instant case has
clearly not prescribed.
Given, however, that the issue on whether respondent has provided
support to petitioner’s child calls for an examination of the probative
value of the evidence presented, and the truth and falsehood of facts
being admitted, we hereby remand the determination of this issue to the
RTC-Cebu which has jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19,
2010 and September 1, 2010, respectively, of the Regional Trial Court of
the City of Cebu are hereby REVERSED and SET ASIDE. The case is
REMANDED to the same court to conduct further proceedings based on
the merits of the case.
SO ORDERED.

In addition, considering that respondent is currently living in the

Philippines, we find strength in petitioner’s claim that the Territoriality
Principle in criminal law, in relation to Article 14 of the New Civil Code,
applies to the instant case, which provides that: "[p]enal laws and those
of public security and safety shall be obligatory upon all who live and
sojourn in Philippine territory, subject to the principle of public
international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the Philippines as
all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged

49
 G.R. No. 93833 September 28, 1995 pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-
aaply ka sa review mo, kung kakailanganin ang certification mo,
SOCORRO D. RAMIREZ, petitioner, kalimutan mo na kasi hindi ka sa akin makakahingi.
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-
respondents. cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok

KAPUNAN, J.: dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan
mo na kung paano ka nakapasok dito "Do you think that on your own
A civil case damages was filed by petitioner Socorro D. Ramirez in the makakapasok ka kung hindi ako. Panunumbyoyan na kita
Regional Trial Court of Quezon City alleging that the private (Sinusumbatan na kita).
respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious CHUCHI — Itutuloy ko na M'am sana ang duty ko.
mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy."1 ESG — Kaso ilang beses na akong binabalikan doon ng mga
no (sic) ko.
In support of her claim, petitioner produced a verbatim transcript of
the event and sought moral damages, attorney's fees and other ESG — Nakalimutan mo na ba kung paano ka pumasok sa
expenses of litigation in the amount of P610,000.00, in addition to hotel, kung on your own merit alam ko naman kung gaano ka "ka
costs, interests and other reliefs awardable at the trial court's bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.
discretion. The transcript on which the civil case was based was culled
from a tape recording of the confrontation made by petitioner.2 The CHUCHI — Kumuha kami ng exam noon.
transcript reads as follows:
ESG — Oo, pero hindi ka papasa.
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa
'yo, nakalimot ka na kung paano ka napunta rito, porke member ka ESG — Kukunin ka kasi ako.
na, magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI — Eh, di sana —
CHUCHI — Kasi, naka duty ako noon.
ESG — Huwag mong ipagmalaki na may utak ka kasi wala
ESG — Tapos iniwan no. (Sic) kang utak. Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Hindi m'am, pero ilan beses na nila akong CHUCHI — Mag-eexplain ako.
binalikan, sabing ganoon —
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo,
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin
explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na mo kamag-anak ng nanay at tatay mo ang mga magulang ko.
50

ESG — Wala na akong pakialam, dahil nandito ka sa loob,
nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka
umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan na
hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan
okey lang sa akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap
sa 'yo. Lumabas ka na. Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the
said act of secretly taping the confrontation was illegal, private
respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to
prohibit and penalize wire tapping and other related violations of
private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted
herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of
Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro
Manila, Philippines, and within the jurisdiction of this honorable
court, the above-named accused, Socorro D. Ramirez not being
authorized by Ester S. Garcia to record the latter's conversation with
said accused, did then and there willfully, unlawfully and feloniously,
51
with the use of a tape recorder secretly record the said conversation
and thereafter communicate in writing the contents of the said
recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash
the Information on the ground that the facts charged do not constitute
an offense, particularly a violation of R.A. 4200. In an order May 3,
1989, the trial court granted the Motion to Quash, agreeing with
petitioner that 1) the facts charged do not constitute an offense under
R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a
the taping of a communication by a person other than a participant to
the communication.4
From the trial court's Order, the private respondent filed a Petition for
Review on Certiorari with this Court, which forthwith referred the case
to the Court of Appeals in a Resolution (by the First Division) of June
19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its
assailed Decision declaring the trial court's order of May 3, 1989 null
and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under
Section 1 of R.A. 4200. In thus quashing the information based on the
ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by
certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for
Reconsideration which respondent Court of Appeals denied in its
Resolution6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that
the applicable provision of Republic Act 4200 does not apply to the
taping of a private conversation by one of the parties to the
conversation. She contends that the provision merely refers to the
unauthorized taping of a private conversation by a party other than
those involved in the communication.8 In relation to this, petitioner
avers that the substance or content of the conversation must be
alleged in the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A.
4200 penalizes the taping of a "private communication," not a "private
conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said
act. 10
We disagree.
First, legislative intent is determined principally from the language of
a statute. Where the language of a statute is clear and unambiguous,
the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be
either impossible 11 or absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized
Wire Tapping and Other Related Violations of Private Communication
and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized
by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for
any person, not authorized by all the parties to any private
communication to secretly record such communication by means of a
tape recorder. The law makes no distinction as to whether the party
sought to be penalized by the statute ought to be a party other than or
different from those involved in the private communication. The
52
statute's intent to penalize all persons unauthorized to make such
recording is underscored by the use of the qualifier "any".
Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private
conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the
respondent court's conclusion that in enacting R.A. 4200 our
lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by
the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the
element of secrecy would not appear to be material. Now, suppose,
Your Honor, the recording is not made by all the parties but by some
parties and involved not criminal cases that would be mentioned
under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the
parties but perhaps by some in an effort to show the intent of the
parties because the actuation of the parties prior, simultaneous even
subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your
Honor, that the intention is to cover it within the purview of this bill or
outside?
Senator Tañada: That is covered by the purview of this bill, Your
Honor.
Senator Padilla: Even if the record should be used not in the
prosecution of offense but as evidence to be used in Civil Cases or
special proceedings?
Senator Tañada: That is right. This is a complete ban on tape
recorded conversations taken without the authorization of all the
parties.

Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not
sporting to record the observation of one without his knowing it and
then using it against him. It is not fair, it is not sportsmanlike. If the
purpose; Your honor, is to record the intention of the parties. I believe
that all the parties should know that the observations are being
recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of
the board of directors where a tape recording is taken, there is no
objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the
observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of
persons, we say: "Please be informed that whatever you say here may
be used against you." That is fairness and that is what we demand.
Now, in spite of that warning, he makes damaging statements against
his own interest, well, he cannot complain any more. But if you are
going to take a recording of the observations and remarks of a person
without him knowing that it is being taped or recorded, without him
knowing that what is being recorded may be used against him, I think
it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under
Section 1 of the bill as now worded, if a party secretly records a public
speech, he would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.
53
Senator Tañada: Well, that particular aspect is not contemplated
by the bill. It is the communication between one person and another
person — not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together
with the above-quoted deliberations from the Congressional Record,
therefore plainly supports the view held by the respondent court that
the provision seeks to penalize even those privy to the private
communications. Where the law makes no distinctions, one does not
distinguish.
Second, the nature of the conversations is immaterial to a violation of
the statute. The substance of the same need not be specifically alleged
in the information. What R.A. 4200 penalizes are the acts of secretly
overhearing, intercepting or recording private communications by
means of the devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by
means of a tape recorder would suffice to constitute an offense under
Section 1 of R.A. 4200. As the Solicitor General pointed out in his
COMMENT before the respondent court: "Nowhere (in the said law) is
it required that before one can be regarded as a violator, the nature of
the conversation, as well as its communication to a third person
should be professed." 14
Finally, petitioner's contention that the phrase "private
communication" in Section 1 of R.A. 4200 does not include "private
conversations" narrows the ordinary meaning of the word
"communication" to a point of absurdity. The word communicate
comes from the latin word communicare, meaning "to share or to
impart." In its ordinary signification, communication connotes the act
of sharing or imparting signification, communication connotes the act
of sharing or imparting, as in a conversation, 15 or signifies the
"process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language signs
or gestures)" 16 These definitions are broad enough to include verbal WHEREFORE, because the law, as applied to the case at bench is clear
or non-verbal, written or expressive communications of "meanings or and unambiguous and leaves us with no discretion, the instant
thoughts" which are likely to include the emotionally-charged petition is hereby DENIED. The decision appealed from is AFFIRMED.
exchange, on February 22, 1988, between petitioner and private Costs against petitioner.
respondent, in the privacy of the latter's office. Any doubts about the
legislative body's meaning of the phrase "private communication" are, SO ORDERED.
furthermore, put to rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator Tañada in his
Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their
conversations being overheard. But this statement ignores the usual
nature of conversations as well the undeniable fact that most, if not
all, civilized people have some aspects of their lives they do not wish
to expose. Free conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods, and the expression of
anti-social desires of views not intended to be taken seriously. The
right to the privacy of communication, among others, has expressly
been assured by our Constitution. Needless to state here, the framers
of our Constitution must have recognized the nature of conversations
between individuals and the significance of man's spiritual nature, of
his feelings and of his intellect. They must have known that part of the
pleasures and satisfactions of life are to be found in the unaudited,
and free exchange of communication between individuals — free from
every unjustifiable intrusion by whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt

with the issue of telephone wiretapping, we held that the use of a
telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200 because
a telephone extension devise was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following the principle that
"penal statutes must be construed strictly in favor of the accused."20
The instant case turns on a different note, because the applicable facts
and circumstances pointing to a violation of R.A. 4200 suffer from no
ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders
as among the acts punishable.

54
 A.M. No. 12-8-07-CA, July 26, 2016
RE: LETTER OF COURT OF APPEALS JUSTICE VICENTE S.E.
VELOSO FOR ENTITLEMENT TO LONGEVITY PAY FOR HIS
SERVICES AS COMMISSION MEMBER III OF THE NATIONAL
LABOR RELATIONS COMMISSION
A.M. NO. 12-9-5-SC
RE: COMPUTATION OF LONGEVITY PAY OF COURT OF APPEALS
JUSTICE ANGELITA A, GACUTAN
A.M. NO. 13-02-07-SC
RE: REQUEST OF COURT OF APPEALS JUSTICE REMEDIOS A.
SALAZAR- FERNANDO THAT HER SERVICES AS MTC JUDGE AND
AS COMELEC COMMISSIONER BE CONSIDERED AS PART OF HER
JUDICIAL SERVICE AND INCLUDED IN THE COMPUTATION/
ADJUSTMENT OF HER LONGEVITY PAY., Respondent.
RESOLUTION
LEONARDO-DE CASTRO, J.:
The Resolution dated June 16, 2015, penned by Honorable Justice
Arturo D. Brion (Brion), in A.M. Nos. 12-8-07-CA, 12-9-5-SC, and
13-02-07-SC, resolved, among other matters, to deny the request of
Court of Appeals (CA) Justice Angelita A. Gacutan (Gacutan) to
include her services as Commissioner of the National Labor Relations
Commission (NLRC) in the computation of her longevity pay.
CA Justice Gacutan filed a Motion for Reconsideration of said ruling,
praying that herein ponente's dissent to the Resolution dated June 16,
2015, joined by five other Justices, prevails. In addition, CA Justice
Gacutan submitted that the grant by the Court of her request that her
services in the NLRC (as of 2006) be included in computing her
longevity pay would be a reward for her past continuous services as a
lifelong public servant who eventually retired from the judiciary, and
that "by granting her request, there is no judicial legislation - there is
55
only the recognition of justice and equity to which we in the judiciary
stand for."
After conscientious review, the Court resolves to grant CA Justice
Gacutan's Motion for Reconsideration. CA Justice Gacutan's services as
NLRC Commissioner should be included in the computation of her
longevity pay, but only from August 26, 2006, when Republic Act No.
9347, which amended Section 216 of the Labor Code, took effect.
Herein ponente had already thoroughly and extensively discussed in
her Concurring and Dissenting Opinion to the Resolution dated June
16, 2015 the bases for her position - now adopted by the Court - that
longevity pay under Section 42 of Batas Pambansa Big. 129 is treated
as part of salary and extended to certain officials in the Executive
Department who are, by law, granted the same salary as their
counterparts in the Judiciary. Pertinent parts of said Concurring and
Dissenting Opinion are worth reproducing below:
The Literal Language of the Law
Section 42 of Batas Pambansa Big. 129, otherwise known as "The
Judiciary Reorganization Act of 1980," as amended, provides:
SEC. 42. Longevity pay. - A monthly longevity pay equivalent to [five
percent] 5% of the monthly basic pay shall be paid to the Justices and
Judges of the courts herein created for each five years of continuous,
efficient, and meritorious service rendered in the judiciary: Provided,
That in no case shall the total salary of each Justice or Judge
concerned, after this longevity pay is added,exceed the salary of the
Justice or Judge next in rank. (Emphasis supplied.)
As a rule, therefore, the grant of longevity pay under Section 42 of
Batas Pambansa Big. 129 is premised on the rendition of continuous,
efficient, and meritorious service in the Judiciary, That is the express
language of the law.
Nonetheless, there are existing laws which expressly require the
qualifications for appointment, confer the rank, and grant the salaries,
privileges, and benefits of members of the Judiciary on other public
officers in the Executive Department, such as the following;

(a) the Solicitor General and Assistant Solicitor Generals of the Office
of the Solicitor General (OSG); and
(b) the Chief Legal Counsel and the Assistant Chief Legal Counsel, the
Chief State Prosecutor, and the members of the National Prosecution
Service (NPS) in the Department of Justice.
The intention of the above laws is to establish a parity in qualifications
required, the rank conferred, and the salaries and benefits given to
members of the Judiciary and the public officers covered by the said
laws, The said laws seek to give equal treatment to the specific public
officers in the executive department and the Judges and Justices who
are covered by Batas Pambansa Big. 129, as amended, and other
relevant laws. In effect, these laws recognize that public officers who
are expressly identified in the laws by the special nature of their
official functions render services which are as important as the
services rendered by the Judges and Justices. They acknowledge the
respective roles of those public officers and of the members of the
Judiciary in the promotion of justice and the proper functioning of our
legal and judicial systems.
Thus, the laws operate under the principle of "equal in qualifications
and equal in rank, equal in salaries and benefits received." The
reasonable and logical implication of this principle is that, in the
context of the dispute resolution mechanism in particular and of the
justice system in general, the services rendered by the public officers
concerned and the members of the Judiciary are equal in importance.
I respectfully submit the following arguments:
(1) The law is clear: the term "salary" covers basic monthly pay
plus longevity pay.
(2) The concept of longevity pay as "salary" should not be
confused with "rank."
(3) The legislative intent of salary increases for certain Executive
officials accords with "salary" as inclusive of longevity pay.
56
(4) The Court's long-standing interpretation of the term "longevity
pay" as part of "salary" is correct.
(5) The executive contemporaneous construction of longevity pay
is consistent with the law, as interpreted by the Supreme Court.
(6) Longevity pay is not a mere "benefit."
Each of these arguments is discussed in detail below.
The law is clear: the term “salary"
covers basic monthly pay plus longevity pay.
That the language of the law itself, in this case, Section 42 of Batas
Pambansa Big. 129, is the starting and referential point of discussion
of longevity pay under that law is not in dispute. It provides:
SEC. 42. Longevity pay. - A monthly longevity pay equivalent to [five
percent] 5% of the monthly basic pay shall be paid to the Justices and
Judges of the courts herein created for each five years of continuous,
efficient, and meritorious service rendered in the judiciary: Provided,
That in no case shall the total salary of each Justice or Judge concerned,
after this longevity pay is added, exceed the salary of the Justice or Judge
next in rank. (Emphases supplied.)
There is disagreement, however, on the construction of the above-
quoted provision with other relevant laws, such as Section 3 of
Republic Act No. 9417, Article 216 of the Labor Code, as amended by
Republic Act No. 9347, and Section 16 of Republic Act No. 10071,
which require the qualifications for appointment, confer the rank, and
grant the same salaries, privileges, and benefits of members of the
Judiciary on other public officers in the Executive Department.
For Justice Brion, "salary" used in the aforesaid other laws should not
include longevity pay. He insists that Section 42 of Batas Pambansa
Big. 129 is clear and unequivocal, that longevity pay is granted to a
Judge or Justice who has rendered five years of continuous, efficient,
and meritorious service in the Judiciary. Service in the Judiciary within
the required period is the only condition for entitlement to longevity
pay under Section 42 of Batas Pambansa Big. 129.

The approach of Justice Brion on the matter is novel. It is, however,
negated by the language and intent of relevant laws, as well as by the
long-standing interpretation of the Court and the Executive Branch on
the matter.
The concept of longevity pay as
"salary" should not to be confused
with "rank."
Under Section 42 of Batas Pambansa Big. 129, longevity pay is an
amount equivalent to 5% of the monthly basic pay given to Judges
and Justices for each five years of continuous, efficient, and
meritorious service rendered in the Judiciary, It is not only an amount
given as an addition to the basic monthly pay but, more importantly, it
forms part of the salary of the recipient thereof.
In other words, longevity pay is "salary" and it should not be confused
with "rank."
That is how this Court has treated the longevity pay under Section 42
of Batas Pambansa Big. 129 since 1986, particularly in Re: Longevity
Pay of the Associate Justices of the Sandiganbayan, It is a treatment
which reflects the Court's reading of the text of the law and its
understanding of the law's legislative intent,
x x xx
xxx [T]he settled meaning of "rank," particularly that it does not
include the privilege to use the title of Judge or Justice should not be
used to determine the import of the term "salary" as used in the
different laws. Otherwise, there would be no point in mentioning in
the laws "rank" separately from "salary." "Rank" unquestionably has
nothing to do with the amount of compensation or pay an official is
entitled to under the law. The said term pertains only to the "class" or
"standing" in an organization or societal structure.
The legislative intent of salary
increases for certain Executive
officials accords with "salary" as
57
inclusive of longevity pay.
In conferring upon certain officials in the Executive the same salaries,
aside from their rank, as those of their respective judicial counterparts,
Congress intended to make the salaries of the former at par with the
latter. The legislative records support this.
In particular, the following portion of the interpellations in connection
with Senate Bill No. 2035, which became Republic Act No. 9347, is
enlightening:
Asked by the Chair whether the proposed amendment (Section 4) to
Article 216 of the Labor Code means an increase in salaries, Senator
Ejercito Estrada (J) clarified that the section proposes that the arbiters
be at par with the judges of the regional trial courts, and the
commissioners at par with the justices of the Court of Appeals.
(Emphases supplied.)
In his sponsorship speech of Senate Bill No. 2659, which became
Republic Act No, 10071, Senator Francis Joseph Escudero adopted as
part of his sponsorship speech several explanatory notes of related
bills, including the explanatory note of Senator Edgardo Angara for
Senate Bill No. 213. The relevant portion of the explanatory note
reads:
At the heart of a strong justice system is the indispensable and
complementary role of the State's prosecutorial and counselling arm.
The National Prosecution Service [NPS] and the Office of the Chief
State Counsel [OCSC] are mandated to uphold the rule of law as a
component of the justice system.
It is sad to note, however, that our prosecutors and state counselors
earn less than those in the Judiciary. Such situation has produced a
migratory effect. After spending a few years in the NPS or the OCSC,
they resign and join the ranks of the judiciary, x x x.
This bill seeks to correct the aforementioned inequities, The increase
in salaries and the granting of additional services and privileges to the
members of the National Prosecution Service and the Office of the
Chief State Counsel, will place them at par with those in the Judiciary
[and] would deter the current practice of migration, x x x. (Emphases
supplied.)
This legislative intent to grant certain officials of the Executive
Department the same salaries as that of their respective judicial
counterparts should be read in conjunction with how salary is defined
in the law and treated vis-a-vis longevity pay in prevailing case law. In
enacting a statute, the legislature is presumed to have been aware of,
and have taken into account, prior laws and jurisprudence on the
subject of legislation. Manila Lodge No. 761 v. Court of Appeals
instructs:
[I]t is presumed that when the lawmaking body enacted the statute, it
had full knowledge of prior and existing laws and legislation on the
subject of the statute and acted in accordance or with respect thereto.
(Citation omitted.)
Thus, Congress knew, or is presumed to have known, the concept of
longevity pay under Section 42 of Batas Pambansa Big. 129 as part of
the total salary of members of the Judiciary when it enacted Republic
Act Nos. 9417, 9347, and 10071, which granted certain officials of the
OSG, the NLRC, and the NPS, respectively, the same salary as their
respective counterparts in the Judiciary. Moreover, armed with that
knowledge, Congress is presumed to have intended to adopt the
definition of "salary" (as constituting basic monthly salary plus
longevity pay) when it enacted Republic Act Nos. 9417, 9347, and
10071, which will be in keeping with the legislative intent to equalize
the salary of certain executive officials with members of the Judiciary.
To do otherwise will negate the express legislative intent.
As it is part of the salary of a member of the Judiciary, it should
perforce be part of the salary of the public officers granted by law with
the same rank and salary as their counterparts in the Judiciary.
Accordingly, the increase in the salary of Judges and Justices by virtue
of the longevity pay should also result in the corresponding increase in
the salary of the public officers who, under relevant laws, enjoy the
same rank and salary as their judicial counterparts. Otherwise, the
law's express language and its intention to grant the same rank and
salary of a member of the Judiciary to the said public officers will be
defeated,
58
xxxx
In other words, by enacting Republic Act Nos. 9417, 9347, and 10071,
which granted certain officials of the Executive Department the same
salary as their respective counterparts in the Judiciary, Congress
manifested its intent to treat "salary" the way it has been treated in
Batas Pambansa Big, 129 as interpreted by this Court, that is, basic
monthly pay plus longevity pay.
Since the above-mentioned laws do not make any distinction with
respect to the term "salary" as it is expressly provided for in Section 42
of Batas Pambansa Big. 129, we should not make any distinction. Ubi
lex non distinguit nee nos distinguere debemus.
It is in light of the legislative intent that the insistence of Justice Brion
to strictly adhere to the sentence structure of Section 42 of Batas
Pambansa Big. 129, without regard to other laws on the matter,
contradicts such legislative intent and constitutes judicial legislation,
which will in effect treat "salary" in a way that is not borne out by the
language of the law and the established Court rulings on the matter.
The longevity pay forms part of the salary of a Judge or Justice, since
Section 42 of Batas Pambansa Big. 129 says it is "added" to the said
salary. Thus, the salary of the members of the Judiciary refers to their
respective basic pay plus the longevity pay to which they may be
entitled by virtue of their continuous, efficient, and meritorious service
in the Judiciary. That should also be the definition of the "salary" of
the concerned public officers who enjoy the same rank and salary as
Judges or Justices, if the word "same" employed in the laws pertaining
to executive officials is to be understood in its plain and ordinary
meaning.
A narrow and restrictive approach which limits the longevity pay
under Section 42 of Batas Pambansa Big. 129, as amended, to service
rendered in the Judiciary only is to unduly restrict the definition of
salary, fixing it to the basic pay. To depart from the meaning expressed
by the words, is to alter the statute, to legislate and not to interpret. It
is to amend the laws by judicial fiat, x x x,
The Court's long-standing
interpretation of the term "longevity
pay" as part of "salary" is correct.
This Court has long recognized that the longevity pay under Section
42 of Batas Pambansa Big. 129 is among the salaries and benefits
enjoyed by members of the Judiciary that are extended to the public
officers conferred by law with the rank of Judges of the lower courts
or Justices of the Court of Appeals.
The Court's Resolution dated September 12, 1985 in Request of Judge
Fernando Santiago for the Inclusion of His Services as Agrarian
Counsel in the Computation of His Longevity Pay granted Judge
Santiago's request and his longevity pay was computed "from the date
of his assumption of office as Agrarian Counsel on August 9, 1963 and
not from the date he assumed office as Judge of the Court of First
Instance on June 1, 1970," The basis of this is Section 160 of Republic
Act No. 3844 which provides;
Section 160. Creation of Office of Agrarian Counsel. - To strengthen
the legal assistance to agricultural lessees and agricultural owner-
cultivators referred to in this Code, the Tenancy Mediation
Commission is hereby expanded and shall hereafter be known as the
Office of the Agrarian Counsel. The head of the Office shall hereafter
be known as Agrarian Counsel and shall have the rank, qualifications
and salary of First Assistant Solicitor General. He shall be assisted by a
Deputy. Agrarian Counsel, who shall have the rank, qualifications and
salary of Assistant Solicitor General. The Agrarian Counsel and Deputy
Agrarian Counsel shall be appointed by the President with the consent
of the Commission on Appointments of Congress and shall be under
the direct supervision of the Secretary of Justice, (Emphasis supplied.)
Under Republic Act No. 335, as amended by Presidential Decree No.
478, the Assistant Solicitor General has the "same rank, qualifications
for appointment, and salary as a Judge of the Court of First Instance,"
now Regional Trial Court.
In the Resolution dated July 25, 1991 in In Re: Adjustment of
Longevity Pay of Hon. Justice Emilio A. Gancayco, this Court said:
59
The Court approved the request of Justice Emilio A. Gancayco for the
adjustment of his longevity pay not only for purposes of his retirement
but also for his entire judicial service by including as part thereof his
period of service from August 9, 1963 to September 1, 1972 as Chief
Prosecuting Attorney (Chief State Prosecutor) considering that under
Republic Act No. 4140, the Chief State Prosecutor is given the same
rank, qualification and salary of a Judge of the Court of First Instance.
(Emphasis supplied.)
In the Resolution dated November 19, 1992 in Re: Adjustment of
Longevity Pay of former Associate Justice Buenaventura S. dela
Fuente, this Court adverted to the Santiago and Gancayco Resolutions
and said:
This refers to the letter of former Associate Justice Buenaventura S.
dela Fuente, dated September 27, 1992, requesting a recomputation
of his longevity pay. It appears that former Justice dela Fuente had
been the Chief Legal Counsel, Department of Justice, since June 22,
1963 until his promotion to the Court of Appeals in 1974, the
qualifications for the appointment to which position aswell as its rank
and salary, pursuant to R.A. 2705, as amended by R.A. 4152, shall be
the same as those prescribed for the first and next ranking assistant
solicitors general, Accordingly, in line with the rulings of this Court in
Re: Adjustment of Longevity Pay of Hon. Justice Emilio A. Gancayco,
dated July 25, 1991 and Administrative Matter No. 85-8-8334-RTC. -
Re: Request of Judge Fernando Santiago for the inclusion of his
services as Agrarian Counsel in the computation of his longevity pay,
dated September 12, 1985, the Court Resolved to (a) APPROVE the
aforesaid request of former Associate Justice Buenaventura S, dela
Fuente[,] and (b) AUTHORIZE the recomputation of his longevity pay
from June 22, 1963, when he assumed office and began discharging
the functions of Chief Legal Counsel.
In Re: Request of Justice Josefina Guevara-Salonga, Court of Appeals,
that Her Services as Assistant Provincial Fiscal of Laguna be Credited
as Part of Her Services in the Judiciary for Purposes of Her Retirement,
this Court stated:
[Republic Act No. 10071] validates the recognition of the services of
Justice Emilio A. Gancayco, whom we credited for his service as Chief
Prosecuting Attorney (Chief State Prosecutor), based on Republic Act
No. 4140 which likewise grants his office (as Chief Prosecuting
Attorney) the rank, qualification and salary of a Judge of the Court of
First Instance. In the same manner, the current law also validates the
crediting of past service to Justice Buenaventura dela Fuente who was
the Chief Legal Counsel of the Department of Justice. (Citations
omitted.)
Also, in Guevara-Salonga, this Court granted the request of Court of
Appeals Justice Guevara-Salonga for the crediting of her services as
Assistant Provincial Fiscal of Laguna as part of her services in the
Judiciary for purposes of her retirement pursuant to Sections 16 and
24 of Republic Act No. 10071 which respectively provide:
Sec. 16. Qualifications, Ranks and Appointments of Prosecutors and
Other Prosecution Officers. - x x x.
Prosecutors with the rank of Prosecutor IV shall have the same
qualifications for appointment, rank, category, prerogatives, salary grade
and salaries, allowances, emoluments and other privileges, shall be
subject to the same inhibitions and disqualifications, and shall enjoy the
same retirement and other benefits as those of a judge of the Regional
Trial Court.
Prosecutors with the rank of Prosecutor III shall have the same
qualifications for appointment, rank, category, prerogatives, salary grade
and salaries, allowances, emoluments and other privileges, shall be
subject to the same inhibitions and disqualifications, and shall enjoy the
same retirement and other benefits as those of a Judge of the
Metropolitan Trial Court.
Prosecutors with the rank of Prosecutor II shall have the same
qualifications for appointment, rank, category, prerogatives, salary grade
and salaries, allowances, emoluments and other privileges, shall be
subject to the same inhibitions and disqualifications, and shall enjoy the
same retirement and other benefits as those of a Judge of the Municipal
Trial Court in cities.
Prosecutors with the rank of Prosecutor I shall have the same
qualifications for appointment, rank, category, prerogatives, salary grade
and salaries, allowances, emoluments and other privileges, shall be
subject to the same inhibitions and disqualifications, and shall enjoy the
60
same retirement and other benefits as those of a Judge of the Municipal
Trial Court in Municipalities.
Sec. 24. Retroactivity. - The benefits mentioned in Sections 14 and 16
hereof shall be granted to all those who retired prior to the effectivity of
this Act. (Emphasis supplied;)
The Resolutions in Santiago, Gancayco, Dela Fuente, and Guevara-
Salonga reveal that this Court has consistently approached and
applied the longevity pay provision under Section 42 of Batas
Pambansa Big. 129 liberally, that is, as applicable by statutory
extension to those covered by the same qualifications and given the
same rank and salary as the members of the Judiciary. They evince the
view that the services rendered in their respective offices by the public
officers required by law to have the same qualifications, rank, and
salary of their counterparts in the Judiciary are considered to be
substantially the same as service in the Judiciary for purposes of the
said public officers' enjoyment of the longevity pay under Section 42
of Batas Pambansa Big. 129.
xxxx
That the said laws manifest a liberal attitude towards the public
officers they respectively cover is reinforced by this Court's treatment
in Re: Longevity Pay of the Associate Justices of the Sandiganbayan of
the longevity pay under Section 42 of Batas Pambansa Big. 129 as
something that "forms part of the salary of the recipient thereof." In
particular, the Court adopted a liberal stance and ruled:
[L]ongevity pay once earned and enjoyed becomes a vested right and
forms part of the salary of the recipient thereof which may not be
reduced, despite the subsequent appointment of a justice or judge next
higher in rank who is not entitled to longevity pay for being new and
not having acquired any longevity in the government service.
Furthermore, diminution or decrease of the salary of an incumbent
justice or judge is prohibited by Section 10 of Article X of the
Constitution; hence, such recipient may continue to earn and receive
additional longevity pay as may be warranted by subsequent services
in the judiciary, because the purpose of .the Longevity Pay Law is to
reward justices and judges for their long and dedicated service as
such. The provision of the law that the total salary of each justice or
judge concerned, after adding his longevity pay, should not exceed the
salary plus longevity pay of the justice or judge next higher in rank,
refers only to the initial implementation of the law and does not
proscribe a justice or judge who is already entitled to longevity pay,
from continuing to earn and receive longevity pay for services
rendered in the judiciary subsequent to such implementation, by the
mere accident of a newcomer being appointee to the position next
higher in rank, x x x, (Emphasis supplied.)
Justice Brion, however, claims that the said cases are not controlling
herein, as they are allegedly a strained and erroneous application of
Section 42 of Batas Pambansa Big. 129 that should be abandoned.
Such claim of grave mistake should be premised on a clear finding
that prior rulings were wrong. In this case, I do not find Justice Brion's
characterization of Santiago, Gancayco, Dela Fuente, and Guevara-
Salonga as "erroneous" and mere "aberrations" as proper.
xxx While certain members of the Judiciary may feel an exclusive
franchise to the rank, salary, and benefits accorded to them by law, we
cannot impose our own views on Congress which has ample power to
enact laws as it sees fit, absent any grave abuse of discretion or
constitutional infraction on its part.
xxx x
The executive contemporaneous
construction of longevity pay is
consistent with the law, as
interpreted by the Supreme Court.
Contemporaneous construction is the interpretation or construction
placed upon the statute by an executive or administrative officer
called upon to execute or administer the statute. It includes the
construction by the Secretary of Justice in his capacity as the chief
legal adviser of the government.
In this connection, the contemporaneous construction by the
Department of Justice and other offices in the executive branch
61
disclose a similar treatment of the longevity pay provision of Batas
Pambansa Big. 129 as shown by the following pertinent portions of the
2nd Indorsement dated November 21, 1988 by the then Secretary of
Justice, Sedfrey, A. Ordonez:
Longevity pay forms part of the salary of the recipient (Resolution of
the Supreme Court in Adm. Matter No. 86-9-2394-0, Re: Longevity
Pay of the Associate Justices of the Sandiganbayan). Thus, when the
law grants to certain officials of the executive department the "rank
and salary" of a member of the Judiciary, it should be deemed to
include longevity pay, which is part of salary; otherwise, the law's
intention to grant the same rank and salary of a justice/judge to
executive officials would be defeated or nullified.
The statement x x x that those executive officials who were granted
longevity pay "were either justice or judge of the court at the time of
the grant" is not entirely correct. Former Chief State Counsel, now
Court of Appeals Justice Minerva P.G, Reyes, was granted longevity
pay in 1985 when she was the incumbent Chief State Counsel.
Assistant Solicitors General Ramon Barcelona, Romeo dela Cruz, Zoilo
Andin and Amado Aquino are presently receiving longevity pay for
their length of service as Assistant Solicitors General.
The Supreme Court computed the longevity pay of Judge Fernando
Santiago "from the date of his assumption of office as Agrarian
Counsel [which was an executive office] on August 9, 1963 and not
from the date he assumed office as Judge of the Court of First Instance
on June 1, 1970" (Adm. Matter No. 85-8-8384-RTC). The same thing
was done in the case of Justices Vicente Mendoza, Santiago Kapunan,
Jose Racela, Lorna L. de la Fuente and Minerva P,G. Reyes, whose
respective services in the Executive Department were credited in their
favor for purposes of the longevity pay.
It bears reiterating that in the case of Justice Reyes, she has been
receiving longevity pay since before her appointment in the Judiciary,
that is, while she was, and on the basis of her being, Chief State
Counsel x x x. The inclusion by the Supreme Court of her services as
Assistant Chief State Counsel and[,] later, as Chief State Counsel in
the computation of her longevity pay as a member of the Judiciary
constitutes a judicial affirmance by the highest court of the land of the
validity of the grant of longevity pay to her way back in 1985 while
she was still an official of the Executive Department. (Emphasis
supplied.)
To reiterate, the above opinion of then Justice Secretary Ordonez
constitutes contemporaneous construction of the issue at hand.
Justice Brion asserts that administrative construction is merely
advisory and is not binding upon the courts. He is absolutely correct.
That is the rule. In the same vein, that rule also means that courts
should respect the contemporaneous construction placed upon a
statute by the executive officers whose duty is to enforce it, and unless
such interpretation is clearly erroneous will ordinarily be controlled
thereby.
As I have shown above, the contemporaneous construction of the then
Justice Secretary is in accordance with both statutory law and case
law,
Longevity pay is not a mere
"benefit."
xxxx
xxx [LJongevity pay is not a mere benefit, but is salary, as it is a
component of the "total salary." That is how this Court treated
longevity pay as a contemporaneous interpretation of Section 42 of
Batas Pambansa Big, 129. That is also how Congress presumably
intended to treat longevity pay when it granted a salary which is the
same as that of members of the Judiciary to certain officials in the
Executive Department under relevant laws, including Republic Act
Nos. 9417, 9347, and 10071, as Congress did not qualify or limit the
term "salary" in these laws.
Section 42 of Batas Pambansa Big, 129 clearly states that the longevity
pay is "added" to the basic monthly salary and forms part of the "total
salary" of a Judge or Justice. Thus, the salary of the members of the
Judiciary refers to their respective basic pay plus the longevity pay to
which they may be entitled by virtue of their continuous, efficient, and
meritorious service in the Judiciary, That should also be the definition
of the "salary" of the concerned public officers who enjoy the same
62
salary as Judges or Justices, if the word "same" employed in the laws
pertaining to executive officials is to be understood in its plain and
ordinary meaning.
xxxx
Therefore, longevity pay under Section 42 of Batas Pambansa Big. 129
must be treated as salary and to extend it to certain officials in the
Executive Department who are, by law, granted the same salary as
their counterparts in the Judiciary. That is, after all, how Congress
intended it to be. That is how it was interpreted in Santiago,
Gancayco, Dela Fuente, and Guevara-Salonga. (Citations omitted.)
CONCLUSION
xxxx
The Instant Requests Considered
Justices Veloso and Gacutan anchor their claim on Article 216 of the
Labor Code, as amended by Republic Act No. 9347, which reads:
Article 216. Salaries, Benefits and Emoluments. -The Chairman and
Members of the Commission shall have the same rank, receive an annual
salary equivalent to, and be entitled to the same allowances, retirement
and benefits as those of the Presiding Justice and Associate Justices of the
Court of Appeals, respectively. Labor Arbiters shall have the same rank,
receive an annual salary equivalent to and be entitled to the same
allowances, retirement and other benefits and privileges as those of the
Judges of the Regional Trial Courts. In no case, however, shall the
provision of this Article result in the diminution of the existing salaries,
allowances and benefits of the aforementioned officials. (Emphases
supplied.)
Republic Act No. 9347 took effect on August 26, 2006. Prior to its
amendment by Republic Act No. 9347, Article 216 of the Labor Code,
as amended by Republic Act No. 6715, provides:
Article 216. Salaries, benefits and other emoluments. - The Chairman
and members of the Commission shall receive an annual salary at least
equivalent to, and be entitled to the same allowances and benefits as,
those of the Presiding Justice and Associate Justices of the Court of
Appeals, respectively. The Executive Labor Arbiters shall receive an
annual salary at least equivalent to that of an Assistant Regional
Director of the Department of Labor and Employment and shall be
entitled to the same allowances and benefits as that of a Regional
Director of said department. The Labor Arbiters shall receive an annual
salary at least equivalent to, and be entitled to the same allowances and
benefits as, that of an Assistant Regional Director of the Department of
Labor and Employment. In no case, however, shall the provision of this
Article result in the diminution of existing salaries, allowances and
benefits of the aforementioned officials. (Emphases supplied.)
xx x x
II. A.M. No. 12-9-5-SC
Justice Gacutan was still a Commissioner of the NLRC when Republic
Act No. 9347 took effect. From the date of effectivity of the law
onwards, her services as NLRC Commissioner are therefore covered by
the beneficial effect of the amendment of Article 216 of the Labor
Code by Republic Act No. 9347, which gave the NLRC Commissioners
the same rank and salary as Associate Justices of the Court of Appeals.
As Republic Act No. 9347 expresses the intent to place the NLRC
Commissioners in exactly the same footing as their counterparts in the
Court of Appeals, and "salary" includes longevity pay, then Justice
Gacutan's longevity pay should be reckoned from August 26, 2006, the
date Republic Act No. 9347 took effect, at which time she was still
NLRC Commissioner. Thus, five years after that date, or on August 26,
2011, she became entitled to receive longevity pay equivalent to 5% of
her monthly basic pay at that time; and, she is now entitled to
adjustment of salary, allowances, and benefits only as of that date.
As regards her request that her entire services as NLRC Commissioner
be credited as part of her government service for the purpose of
retirement under Republic Act No. 910, as amended by Republic Act
No. 9946, the same may be allowed as it is in accordance with Section
1 of Republic Act No. 910, as amended by Republic Act No. 9946,
which requires fifteen (15) years service in the Judiciary or in any
other branch of the Government as a condition for coverage of the
said law.
63
Clearly, the foregoing ratiocination does not constitute judicial
legislation. It is firmly grounded on existing laws, jurisprudence, and
executive contemporaneous construction. It was Congress which
enacted Republic Act Nos. 9417, 9347, and 10071, granting certain
officials of the Executive Department the same salary as their
respective counterparts in the Judiciary, and "salary" refers to basic
monthly pay plus longevity pay per the plain language of Section 42 of
Batas Pambansa Big. 129. Justice Brion opines that the grant of
longevity pay to executive officials would effectively be a misplaced
exercise of liberality at the expense of public funds and to the
prejudice of sectors who are more in need of these funds. It bears to
stress though that it is irrefragably within the legislative power of
Congress to enact Republic Act Nos. 9417, 9347, and 10071, and it is
beyond the judicial power of the Court to question the wisdom behind
said legislations.
WHEREFORE, premises considered, the Court resolves to GRANT the
Motion for Reconsideration of CA Justice Gacutan and MODIFY the
Resolution dated June 16, 2015 in A.M. Nos. 12-8-07-CA, 12-9-5-SC,
and 13-02-07^SC, insofar as to GRANT CA Justice Gacutan's request
that her services as NLRC Commissioner be included in the
computation of her longevity pay, but reckoned only from August 26,
2006, when Republic Act No, 9347 took effect.
SO ORDERED.
DISSENTING OPINION
BRION, J.:
I dissent from the ponencia's grant of the Motion for Reconsideration filed
by former Court of Appeals (CA) Associate Justice Angelita Alberto-
Gacutan (Justice Gacutan) asking the Court to reconsider the portion of
the Court's Resolution1 in A.M. Nos. 12-8-07-CA,2 12-9-5-SC,3 and
13-02-07-SC4 affecting her longevity pay.
On June 16, 2015, the Court had previously issued a Resolution, penned
by Justice Arturo D, Brion, addressing the letter-requests of several retired
CA justices asking for the re-computation of their longevity pay. These
letter-requests had been consolidated, and the Court held in the
Resolution's disposition:ChanRoblesVirtualawlibrary
(1) NOTE the Memorandum dated February 18, 2013 of Atty. Eden T,
Candelaria and the Report and Recommendation dated February 15, 2013
of Atty, Corazon G. Ferrer-Flores;
(2) GRANT the request of Associate Justice Remedios A, Salazar-
Fernando that her services as Judge of the Municipal Trial Court of Sta.
Rita, Pampanga, be included in the computation of her longevity pay;
(3) DENY the request of Associate Justice Remedios A. Salazar- Fernando
that her services as COMELEC Commissioner be included in the
computation of her longevity pay;
(4) DENY the request of Associate Justice Angelita Gacutan that her
services as NLR€ Commissioner be included in the computation of her
longevity pay from the time she started her judicial service;
(5) DENY with finality the motion for reconsideration of Associate Justice
Vicente S.E. Veloso for lack of merit; and
(6) DIRECT the Clerk of this Court to proceed with the handling of
granted longevity pay benefits under Section 42 of Batas Pambansa Big.
129, pursuant to the guidelines and declarations outlined in the Moving
On portion of this Resolution, [Emphasis supplied]
Justice Gacutan now asks the Court to reconsider the denial we decreed
by including in the computation of her longevity pay. She noted in her
motion that two members of the Court (Justice Teresita J> Leonardo-De
Castro - the ponente of the present Resolution - and Justice Presbitero J.
Velasco, Jr.) issued Opinions that grant her request, and likewise adopted
the arguments of these dissenting justices.
Justice Gacutan specifically responded to the June 16, 2015 ponencia's
ruling that the judiciary is not in a position to recognize past services in
the Executive, a different branch of government, and cannot thus
determine the continuous, efficient, and meritorious service that the grant
of longevity pay requires.
According to Justice Gacutan, the determination of efficiency and
meritorious service in her case may not be solely determined by the
judiciary. She then proceeded to enumerate her illustrious career in the
Executive, in the NLRC, and in the CA, and noted that the Judicial and
64
Bar Council would not have nominated her for the position of CA Justice
if its members had not favorably considered her intelligence, integrity,
character, and experience.7chanrobleslaw
Reasons for my Dissent
I vote to DENY with finality Justice Gacutan's Motion for Reconsideration
as it does not present any new or compelling argument to justify the
Court's reversal of its Decision. The arguments Justice de Castro and
Justice Velasco raised in their dissents to the June 16, 2015 Resolution
have been thoroughly deliberated upon by the Court in its main ruling,
and thus have already been sufficiently addressed.
The Petitioner's Past Service in the Executive is not a Material Issue,
When the Court, in the June 16, 2015 Resolution, said that the judiciary is
not in a position to determine past continuous, efficient, and meritorious
service in the Executive, it was not a personal attack on Justice Gacutan's
illustrious career in Government, The observation was meant to expound
on the concept that longevity pay for members of the judiciary is confined
to services rendered within the judiciary. In other words, the character of
her past executive service is not a material issue in the Court's denial of
her request.
The grant of longevity pay in the judiciary is based on Section 42 of Batas
Pambansa Big, No. 129 (BP 129)8 which provides:
Section 42. Longevity pay. - A monthly longevity pay equivalent to 5% of the
monthly basic pay shall be paid to the Justices and Judges of the courts
herein created for each five years of continuous, efficient, and meritorious
service rendered in the judiciary; Provided, That in no case shall the total
salary of each Justice or Judge concerned, after this longevity pay is added,
exceed the salary of the Justice or Judge next in rank.
Laws subsequent to BP 129 conferred the same salaries and benefits
granted to members of the judiciary, and to certain public officials in the
executive who had been given ranks equivalent to those granted in the
judiciary. The Court clarified in the June 16, 2015 Resolution that these
laws do not expand the concept of longevity pay as provided in Section 42
of BP 129, and do not operate to include services in executive positions in
determining the grant of longevity pay.
The Court reached this conclusion for the following reasons:
1. The Grant of Longevity Pay is only for Judges and Justices for
Service in the Judiciary.
The language and terms of Section 42 ofBP 129 are very clear and
unambiguous, A plain reading of Section 42 shows that it grants longevity
pay to a judge or justice (and to none other) who has rendered five years
of continuous, efficient, and meritorious service in the Judiciary, The
granted monthly longevity pay is equivalent to 5% of the monthly basic
pay.
Notably, Section 42 ofBP 129 on longevity pay is separate from the
provision on the salary of members of the judiciary found in Section 41 of
BP 1299 This separate placement reflects the longevity pay's status as a
separate benefit for members of the judiciary who have rendered
"continuous, efficient and meritorious service in the judiciary;" longevity
pay is not part of the salary that judges and justices are granted under
Section 41.
In other words, all judges and justices are entitled to the salary prescribed
for them under Section 41 of BP 129, but only those who have complied
with the requisites of Section 42 are entitled to receive the additional
longevity pay benefit.
Thus, when Section 42 of BP 129 required that the total salary of judges
and justices receiving longevity pay should not exceed the salary of those
next in rank, it simply meant that the addition of longevity pay cannot
result in judges and justices of lower rank receiving a bigger total
compensation than those with higher rank.
The salary of judges and justices depend on the salary grade (and
subsequent step increments) of their positions under the Compensation
and Classification System referred to in Section 41 of BP 129. The proviso
in Section 42 of the same law operates to limit the amount of longevity
pay granted when it disrupts the compensation system referred to in
Section 41. It does not integrate longevity pay in the salary due to judges
and justices under the compensation system, as not all of them are
entitled to receive longevity pay in the first place.
2. Justice Gacutan's Request has no Basis in Law.
The inclusion of past services in another branch of government in the
computation of longevity pay in the judiciary has no express basis in law.
65
None of the laws that grant similarity of salaries and benefits between
executive officials and their counterparts in the judiciary mention that
services in these executive positions would be included in the
computation of longevity pay in the judiciary.
In Justice Gacutan's case, her services as past National Labor Relations
Commission Commissioner (NLRC) places her under the operation of
Republic Act No. 934710 (RA No. 9347), which amended Article 216 of
the Labor Code to read:
ART. 216. Salaries, benefits and other emoluments. The Chairman and
members of the Commission shall have the same rank, receive an annual
salary equivalent to, and be entitled to the same allowances, retirement and
benefits as those of the Presiding Justice and Associate Justices of the Court
of Appeals, respectively. Labor Arbiters shall have the same rank, receive an
annual salary equivalent to and be entitled to the same allowances,
retirement and other benefits and privileges as those of the judges of the
regional trial courts. In no case, however, shall the provision of this Article
result in the diminution of the existing salaries, allowances and benefits of
the aforementioned officials.
The "salary" that Article 216 of the Labor Code speaks of pertains to the
"compensation and allowances" under Section 41 of BP 129, as found in
the salary schedule of the government's Compensation and Position
Classification System, Thus, Article 216 provided NLRC commissioners
with the same salary received by Associate Justices of the Court of
Appeals as prescribed in the salary schedule found in the government's
Compensation and Position Classification System,
The Compensation and Position Classification System prescribes the salary
to be received by government employees depending on the salary grade
their positions are classified in.
Viewed in this light, the provision of the same rank as CA Associate
Justices to NLRC Commissioners in Article 216 of the Labor Code simply
meant that the latter shall have the same salary grade as the former.
As an additional benefit, NLRC commissioners may be granted the
longevity pay that judges and justices receive under Section 42 of BP 129,
for the commissioners' meritorious, efficient, and continuous service in
the NLRC. But this is for CONGRESS, NOT FOR THIS COURT, to decide
upon and grant. The grant to the members of the Executive Department
of this kind of benefit is an act that the Constitution exclusively assigns to
Congress. This is an authority and prerogative that the Constitution
exclusively grants to Congress. -
To recapitulate, RA No. 9347 merely used the salary, allowances, and
benefits received by CA Justices as a yardstick for the salary, allowances,
and benefits to be received by NLRC commissioners. This is what RA No.
9347 meant when it granted NLRC commissioners the same salary,
allowances, and benefits as CA Associate Justices.
The grant of an equivalent judicial rank does not (and cannot) make an
official in the executive a member of the judiciary; thus, benefits that
accrue only to members of the judiciary cannot be granted to executive
officials. This is a consequence of the separation of powers principle that
underlies the Constitution.
In more concrete terms, incumbent judges and justices who had previous
government service outside the judiciary and who had been granted
equivalent judicial rank under these previous positions, cannot credit their
past non-judicial service as service in the judiciary for purposes of
securing benefits applicable only and earned while a member of the
judiciary, unless Congress by law says otherwise and only for purposes of
entitlement to salaries and benefits.
3. The Grant of Longevity Pay Prayed for is an Act of Judicial
Legislation.
The grant of longevity pay for past services in the NLRC, based on the
grant of longevity pay to judges and justices of the judiciary, amounts to
prohibited judicial legislation.
Section 42 of BP 129 is clear in requiring five years of meritorious,
efficient, and continuous services in the judiciary subsequent legislation
conferring the same salary and benefits that judges and justices enjoy to
designated counterparts in the executive did not amend this requirement,
expressly or impliedly.
RA No. 9347, in particular, did not specifically provide that the services in
the NLRC may be tacked with the length of judicial service for purposes of
computing longevity pay in the judiciary. Neither can the tackmg of these
periods be implied from the language of Article 216 of the Labor Code, as
amended, as the provision merely uses the salary and benefits of CA
Associate justices as a yardstick for determining the salary and benefits of
NLRC commissioners.
66
It must be pointed out that the grant of the requested longevity pay can
be a blow disastrous to the reputation of the judiciary and to this Court's
role as the final authority in interpreting the Constitution, when the
public realizes that this Court engaged in judicial legislation, through
interpretation, to undeservedly favor its own judges and justices.
4. A Grant would effectively be a Misplaced Exercise of Liberality at
the Expense of Public Funds and to the Prejudice of Sectors who are More
in Need of these Funds.
The liberal approach does not allow the inclusion of the period of services
in the NLRC (or any executive office) to the period of judicial service to
grant longevity pay in the judiciary, The law is clear and unequivocal in its
requirements for the grant of longevity pay, and cannot thus be amended
through a claimed liberal approach.
The Court should not forget that liberality is not a magic wand that can
ward off the clear terms and import of express legal provisions; it has a
place only when, between two positions that the law can both
accommodate, the Court chooses the more expansive or more generous
option. It has no place where no choice is available at all because the
terms of the law are clear and do not at all leave room for discretion, 12
In terms of the longevity pay's purpose, liberality has no place where
service is not to the judiciary, as the element of loyalty - the virtue that
longevity pay rewards - is not at all present.
I cannot overemphasize too that the policy of liberal construction cannot
and should not be to the point of engaging in judicial legislation -an act
that the Constitution absolutely forbids this Court to do. The Court may
not, in the guise of interpretation, enlarge the scope of a statute or
include, under its terms, situations that were not provided nor intended
by the lawmakers. The Court cannot rewrite the law to conform to what it
or certain of its Members think should be the law.
Not to be forgotten is the effect of this Court's grant on the use of public
funds; funds granted to other than the legitimate beneficiaries are
misdirected funds that may be put to better use by those sectors of society
who need them more.
For these reasons, I vote DENY with FINALITY the Motion for
Reconsideration filed by former Court of Appeals Associate Justice
Angelita Alberto-Gacutan.
 G.R. No. 82511 March 3, 1992
GLOBE-MACKAY CABLE AND RADIO CORPORATION, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and IMELDA
SALAZAR, respondents.
ROMERO, J.:
For private respondent Imelda L. Salazar, it would seem that her close
association with Delfin Saldivar would mean the loss of her job. In
May 1982, private respondent was employed by Globe-Mackay Cable
and Radio Corporation (GMCR) as general systems analyst. Also
employed by petitioner as manager for technical operations' support
was Delfin Saldivar with whom private respondent was allegedly very
close.
Sometime in 1984, petitioner GMCR, prompted by reports that
company equipment and spare parts worth thousands of dollars under
the custody of Saldivar were missing, caused the investigation of the
latter's activities. The report dated September 25, 1984 prepared by
the company's internal auditor, Mr. Agustin Maramara, indicated that
Saldivar had entered into a partnership styled Concave Commercial
and Industrial Company with Richard A. Yambao, owner and manager
of Elecon Engineering Services (Elecon), a supplier of petitioner often
recommended by Saldivar. The report also disclosed that Saldivar had
taken petitioner's missing Fedders airconditioning unit for his own
personal use without authorization and also connived with Yambao to
defraud petitioner of its property. The airconditioner was recovered
only after petitioner GMCR filed an action for replevin against
Saldivar.1
It likewise appeared in the course of Maramara's investigation that
Imelda Salazar violated company reglations by involving herself in
transactions conflicting with the company's interests. Evidence showed
that she signed as a witness to the articles of partnership between
Yambao and Saldivar. It also appeared that she had full knowledge of
the loss and whereabouts of the Fedders airconditioner but failed to
inform her employer.
67
Consequently, in a letter dated October 8, 1984, petitioner company
placed private respondent Salazar under preventive suspension for
one (1) month, effective October 9, 1984, thus giving her thirty (30)
days within which to, explain her side. But instead of submitting an
explanations three (3) days later or on October 12, 1984 private
respondent filed a complaint against petitioner for illegal suspension,
which she subsequently amended to include illegal dismissal, vacation
and sick leave benefits, 13th month pay and damages, after petitioner
notified her in writing that effective November 8, 1984, she was
considered dismissed "in view of (her) inability to refute and disprove
these findings. 2
After due hearing, the Labor Arbiter in a decision dated July 16, 1985,
ordered petitioner company to reinstate private respondent to her
former or equivalent position and to pay her full backwages and other
benefits she would have received were it not for the illegal dismissal.
Petitioner was also ordered to pay private respondent moral damages
of P50,000.00.
On appeal, public respondent National Labor Relations, Commission in
the questioned resolution dated December 29, 1987 affirmed the
aforesaid decision with respect to the reinstatement of private
respondent but limited the backwages to a period of two (2) years and
deleted the award for moral damages. 4
Hence, this petition assailing the Labor Tribunal for having committed
grave abuse of discretion in holding that the suspension and
subsequent dismissal of private respondent were illegal and in
ordering her reinstatement with two (2) years' backwages.
On the matter of preventive suspension, we find for petitioner GMCR.
The investigative findings of Mr. Maramara, which pointed to Delfin
Saldivar's acts in conflict with his position as technical operations
manager, necessitated immediate and decisive action on any employee
closely, associated with Saldivar. The suspension of Salazar was
further impelled by th.e discovery of the missing Fedders
airconditioning unit inside the apartment private respondent shared
with Saldivar. Under such circumstances, preventive suspension was
the proper remedial recourse available to the company pending
Salazar's investigation. By itself, preventive suspension does, not
signify that the company has adjudged the employee guilty of the
charges she was asked to answer and explain. Such disciplinary
measure is resorted to for the protection of the company's property
pending investigation any alleged malfeasance or misfeasance
committed by the employee.5
Thus, it is not correct to conclude that petitioner GMCR had violated
Salazar's right to due process when she was promptly suspended. If at
all, the fault, lay with private respondent when she ignored
petitioner's memorandum of October 8, 1984 "giving her ample
opportunity to present (her) side to the Management." Instead, she
went directly to the Labor Department and filed her complaint for
illegal suspension without giving her employer a chance to evaluate
her side of the controversy.
But while we agree with the propriety of Salazar's preventive
suspension, we hold that her eventual separation from employment
was not for cause.
What is the remedy in law to rectify an unlawful dismissal so as to
"make whole" the victim who has not merely lost her job which, under
settled Jurisprudence, is a property right of which a person is not to be
deprived without due process, but also the compensation that should
have accrued to her during the period when she was unemployed?
Art. 279 of the Labor Code, as amended, provides:
Security of Tenure. — In cases of regular employment, the
employer shall not terminate the services of an employee except
for a just cause or when authorized by this Title. An employee
who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges
and to his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed from the
time his compensation was withheld from him up to the time of
his actual reinstatement. 6 (Emphasis supplied)
68
Corollary thereto are the following provisions of the Implementing
Rules and Regulations of the Labor Code:
Sec. 2. Security of Tenure. — In cases of regular employments,
the employer shall not terminate the services of an employee
except for a just cause as provided in the Labor Code or when
authorized by existing laws.
Sec. 3. Reinstatement. — An employee who is unjustly dismissed
from work shall by entitled to reinstatement without loss of
seniority rights and to backwages."7 (Emphasis supplied)
Before proceeding any furthers, it needs must be recalled that the
present Constitution has gone further than the 1973 Charter in
guaranteeing vital social and economic rights to marginalized groups
of society, including labor. Given the pro-poor orientation of several
articulate Commissioners of the Constitutional Commission of 1986, it
was not surprising that a whole new Article emerged on Social Justice
and Human Rights designed, among other things, to "protect and
enhance the right of all the people to human dignity, reduce social,
economic and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good."
8 Proof of the priority accorded to labor is that it leads the other areas
of concern in the Article on Social Justice, viz., Labor ranks ahead of
such topics as Agrarian and Natural Resources Reform, Urban Land
Roform and Housing, Health, Women, Role and Rights of Poople's
Organizations and Human Rights.9
The opening paragraphs on Labor states:
The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and
equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law.
They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and
 decision-making processes affecting their rights and benefits is
may be provided by law.10 (Emphasis supplied)
Compare this with the sole.provision on Labor in the 1973
Constitution under the Article an Declaration of Principles and State
Policies that provides:
Sec. 9. The state shall afford protection to labor, promote full
employment and equality in employment, ensure equal work
opportunities regardless of sex, race, or creed, and regulate the
relations between workers and employers. The State shall ensure
the rights of workers to self-organization, collective baegaining,
security of tenure, and just and humane conditions of work. The
State may provide for compulsory arbitration. 11
To be sure, both Charters recognize "security of tenure" as one of the
rights of labor which the State is mandated to protect. But there is no
gainsaying the fact that the intent of the framers of the present
Constitution was to give primacy to the rights of labor and afford the
sector "full protection," at least greater protection than heretofore
accorded them, regardless of the geographical location of the workers
and whether they are organized or not.
It was then CONCOM Commissioner, now Justice Hilario G. Davide,
Jr., who substantially contributed to the present formulation of the
protection to labor provision and proposed that the same be
incorporated in the Article on Social Justice and not just in the Article
on Declaration of Principles and State Policies "in the light of the
special importance that we are giving now to social justice and the
necessity of emphasizing the scope and role of social justice in
national development." 12
If we have taken pains to delve into the background of the labor
provisions in our Constitution and the Labor Code, it is but to stress
that the right of an employee not to be dismissed from his job except
for a just or authorized cause provided by law has assumed greater
importance under the 1987 Constitution with the singular prominence
labor enjoys under the article on Social Justice. And this transcendent
policy has been translated into law in the Labor Code. Under its terms,
where a case of unlawful or unauthorized dismissal has been proved
69
by the aggrieved employee, or on the other hand, the employer whose
duty it is to prove the lawfulness or justness of his act of dismissal has
failed to do so, then the remedies provided in Article 279 should find,
application. Consonant with this liberalized stance vis-a-vis labor, the
legislature even went further by enacting Republic Act No. 6715 which
took effect on March 2, 1989 that amended said Article to remove any
possible ambiguity that jurisprudence may have generated which
watered down the constitutional intent to grant to labor "full
protection." 13
To go back to the instant case, there being no evidence to show an
authorized, much less a legal, cause for the dismissal of private
respondent, she had every right, not only to be entitled to
reinstatement, but ay well, to full backwages." 14
The intendment of the law in prescribing the twin remedies of
reinstatement and payment of backwages is, in the former, to restore
the dismissed employee to her status before she lost her job, for the
dictionary meaning of the word "reinstate" is "to restore to a state,
conditione positions etc. from which one had been removed"15 and in
the latter, to give her back the income lost during the period of
unemployment. Both remedies, looking to the past, would perforce
make her "whole."
Sadly, the avowed intent of the law has at times been thwarted when
reinstatement has not been forthcoming and the hapless dismissed
employee finds himself on the outside looking in.
Over time, the following reasons have been advanced by the Court for
denying reinstatement under the facts of the case and the law
applicable thereto; that reinstatement can no longer be effected in
view of the long passage of time (22 years of litigation) or because of
the realities of the situation; 16 or that it would be "inimical to the
employer's interest; " 17 or that reinstatement may no longer be
feasible; 18 or, that it will not serve the best interests of the parties
involved; 19 or that the company would be prejudiced by the workers'
continued employment; 20 or that it will not serve any prudent
purpose as when supervening facts have transpired which make
execution on that score unjust or inequitable 21 or, to an increasing
extent, due to the resultant atmosphere of "antipathy and antagonism"
or "strained relations" or "irretrievable estrangement" between the
employer and the employee. 22
In lieu of reinstatement, the Court has variously ordered the payment
of backwages and separation pay 23 or solely separation pay. 24
In the case at bar, the law is on the side of private respondent. In the
first place the wording of the Labor Code is clear and unambiguous:
"An employee who is unjustly dismissed from work shall be entitled to
reinstatement. . . . and to his full backwages. . . ." 25 Under the
principlesof statutory construction, if a statute is clears plain and free
from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. This plain-meaning rule or verba
legis derived from the maxim index animi sermo est (speech is the
index of intention) rests on the valid presumption that the words
employed by, the legislature in a statute correctly express its intent or
will and preclude the court from construing it differently. 26 The
legislature is presumed to know the meaning of the words, to:have
used words advisedly, and to have expressed its intent by the use of
such words as are found in the statute.27 Verba legis non est
recedendum, or from the words of a statute there should be no
departure. Neither does the provision admit of any qualification. If in
the wisdom of the Court, there may be a ground or grounds for non-
application of the above-cited provision, this should be by way of
exception, such as when the reinstatement may be inadmissible due to
ensuing strained relations between the employer and the employee.
In such cases, it should be proved that the employee concerned
occupies a position where he enjoys the trust and confidence of his
employer; and that it is likely that if reinstated, an atmosphere of
antipathy and antagonism may be generated as to adversely affect the
efficiency and productivity of the employee concerned.
A few examples, will suffice to illustrate the Court's application of the
above principles: where the employee is a Vice-President for
Marketing and as such, enjoys the full trust and confidence of top
management; 28 or is the Officer-In-Charge of the extension office of
the bank where he works; 29 or is an organizer of a union who was in
a position to sabotage the union's efforts to organize the workers in
commercial and industrial establishments; 30 or is a warehouseman of
70
a non-profit organization whose primary purpose is to facilitate and
maximize voluntary gifts. by foreign individuals and organizations to
the Philippines; 31 or is a manager of its Energy Equipment Sales. 32
Obviously, the principle of "strained relations" cannot be applied
indiscriminately. Otherwise reinstatement can never be possible simply
because some hostility is invariably engendered between the parties as
a result of litigation. That is human nature. 33
Besides, no strained relations should arise from a valid and legal act of
asserting one's right; otherwise an employee who shall assert his right
could be easily separated from the service, by merely paying his
separation pay on the pretext that his relationship with his employer
had already become strained. 34
Here, it has not been proved that the position of private respondent as
systems analyst is one that may be characterized as a position of trust
and confidence such that if reinstated, it may well lead to strained
relations between employer and employee. Hence, this does not
constitute an exception to the general rule mandating reinstatement
for an employee who has been unlawfully dismissed.
On the other hand, has she betrayed any confidence reposed in her by
engaging in transactions that may have created conflict of interest
situations? Petitioner GMCR points out that as a matter of company
policy, it prohibits its employees from involving themselves with any
company that has business dealings with GMCR. Consequently, when
private respondent Salazar signed as a witness to the partnership
papers of Concave (a supplier of Ultra which in turn is also a supplier
of GMCR), she was deemed to have placed. herself in an untenable
position as far as petitioner was concerned.
However, on close scrutiny, we agree with public respondent that such
a circumstance did not create a conflict of interests situation. As a
systems analyst, Salazar was very far removed from operations
involving the procurement of supplies. Salazar's duties revolved
around the development of systems and analysis of designs on a
continuing basis. In other words, Salazar did not occupy a position of
trust relative to the approval and purchase of supplies and company
assets.
In the instant case, petitioner has predicated its dismissal of Salazar on This decision is immediately executory.
loss of confidence. As we have held countless times, while loss of
confidence or breach of trust is a valid ground for terminations it must SO ORDERED.
rest an some basis which must be convincingly established. 35 An
employee who not be dismissed on mere presumptions and
suppositions. Petitioner's allegation that since Salazar and Saldivar
lived together in the same apartment, it "presumed reasonably that
complainant's sympathy would be with Saldivar" and its averment that
Saldivar's investigation although unverified, was probably true, do not
pass this Court's test. 36 While we should not condone the acts of
disloyalty of an employee, neither should we dismiss him on the basis
of suspicion derived from speculative inferences.

To rely on the Maramara report as a basis for Salazar's dismissal would

be most inequitous because the bulk of the findings centered
principally oh her friend's alleged thievery and anomalous transactions
as technical operations' support manager. Said report merely
insinuated that in view of Salazar's special relationship with Saldivar,
Salazar might have had direct knowledge of Saldivar's questionable
activities. Direct evidence implicating private respondent is wanting
from the records.

It is also worth emphasizing that the Maramara report came out after
Saldivar had already resigned from GMCR on May 31, 1984. Since
Saldivar did not have the opportunity to refute management's
findings, the report remained obviously one-sided. Since the main
evidence obtained by petitioner dealt principally on the alleged
culpability of Saldivar, without his having had a chance to voice his
side in view of his prior resignation, stringent examination should
have been carried out to ascertain whether or not there existed
independent legal grounds to hold Salatar answerable as well and,
thereby, justify her dismissal. Finding none, from the records, we find
her to have been unlawfully dismissed.

WHEREFORE, the assailed resolution of public respondent National

Labor Relations Commission dated December 29, 1987 is hereby
AFFIRMED. Petitioner GMCR is ordered to REINSTATE private
respondent Imelda Salazar and to pay her backwages equivalent to
her salary for a period of two (2) years only.
71
 G.R. No. 109445 November 7, 1994
FELICITO BASBACIO, petitioner,
vs.
OFFICE OF THE SECRETARY, DEPARTMENT OF JUSTICE,
FRANKLIN DRILON in his capacity as Secretary of Justice,
respondent.
MENDOZA, J.:
This case presents for determination the scope of the State's liability
under Rep. Act No. 7309, which among other things provides
compensation for persons who are unjustly accused, convicted and
imprisoned but on appeal are acquitted and ordered released.
Petitioner Felicito Basbacio and his son-in-law, Wilfredo Balderrama,
were convicted of frustrated murder and of two counts of frustrated
murder for the killing of Federico Boyon and the wounding of the
latter's wife Florida and his son Tirso, at Palo, Calanuga, Rapu-Rapu,
Albay, on the night of June 26, 1988. The motive for the killing was
apparently a land dispute between the Boyons and petitioner.
Petitioner and his son-in-law were sentenced to imprisonment and
ordered immediately detained after their bonds had been cancelled.
Petitioner and his son-in-law appealed. Only petitioner's appeal
proceeded to judgment, however, as the appeal of the other accused
was dismissed for failure to file his brief.
On June 22, 1992 the Court of Appeals rendered a decision acquitting
petitioner on the ground that the prosecution failed to prove
conspiracy between him and his son-in-law. He had been pointed to by
a daughter of Federico Boyon as the companion of Balderrama when
the latter barged into their hut and without warning started shooting,
but the appellate court ruled that because petitioner did nothing more,
petitioner's presence at the scene of the crime was insufficient to show
conspiracy.
Based on his acquittal, petitioner filed a claim under Rep. Act No.
7309, sec. 3(a), which provides for the payment of compensation to
72
"any person who was unjustly accused, convicted, imprisoned but
subsequently released by virtue of a judgment of acquittal."1 The
claim was filed with the Board of Claims of the Department of Justice,
but the claim was denied on the ground that while petitioner's
presence at the scene of the killing was not sufficient to find him guilty
beyond reasonable doubt, yet, considering that there was bad blood
between him and the deceased as a result of a land dispute and the
fact that the convicted murderer is his son-in-law, there was basis for
finding that he was "probably guilty."
On appeal, respondent Secretary of Justice affirmed the Board's ruling.
Said the Secretary of Justice in his resolution dated March 11, 1993:
It is believed therefore that the phrase "any person . . . unjustly
accused, convicted and imprisoned" in Section 3(a) of R.A. No. 7309
refers to an individual who was wrongly accused and imprisoned for a
crime he did not commit, thereby making him "a victim of unjust
imprisonment." In the instant case, however, Claimant/Appellant
cannot be deemed such a victim since a reading of the decision of his
acquittal shows that his exculpation is not based on his innocence, but
upon, in effect, a finding of reasonable doubt.
Petitioner brought this petition for review on certiorari. Neither Rule
45 nor Rep. Act No. 7309, however, provides for review by certiorari
of the decisions of the Secretary of Justice. Nonetheless, in view of the
importance of the question tendered, the Court resolved to treat the
petition as a special civil action for certiorari under Rule 65.
Petitioner questions the basis of the respondent's ruling that to be able
to recover under sec. 3(a) of the law the claimant must on appeal be
found to be innocent of the crimes of which he was convicted in the
trial court. Through counsel he contends that the language of sec. 3(a)
is clear and does not call for interpretation. The "mere fact that the
claimant was imprisoned for a crime which he was subsequently
acquitted of is already unjust in itself," he contends. To deny his claim
because he was not declared innocent would be to say that his
imprisonment for two years while his appeal was pending was
justified. Petitioner argues that there is only one requirement for
conviction in criminal cases and that is proof beyond reasonable
doubt. If the prosecution fails to present such proof, the presumption
that the accused is innocent stands and, therefore, there is no reason
for requiring that he be declared innocent of the crime before he can
recover compensation for his imprisonment.
Petitioner's contention has no merit. It would require that every time
an accused is acquitted on appeal he must be given compensation on
the theory that he was "unjustly convicted" by the trial court. Such a
reading of sec. 3(a) is contrary to petitioner's professed canon of
construction that when the language of the statute is clear it should be
given its natural meaning. It leaves out of the provision in question the
qualifying word "unjustly" so that the provision would simply read:
"The following may file claims for compensation before the Board: (a)
any person who was accused, convicted, imprisoned but subsequently
released by virtue of a judgment of acquittal."
But sec. 3(a) requires that the claimant be "unjustly accused, convicted
[and] imprisoned." The fact that his conviction is reversed and the
accused is acquitted is not itself proof that the previous conviction was
"unjust." An accused may be acquitted for a number of reasons and his
conviction by the trial court may, for any of these reasons, be set aside.
For example, he may be acquitted not because he is innocent of the
crime charged but because of reasonable doubt, in which case he may
be found civilly liable to the complainant, because while the evidence
against him does not satisfy the quantum of proof required for
conviction, it may nonetheless be sufficient to sustain a civil action for
damages.2 In one case the accused, an alien, was acquitted of
statutory rape with homicide because of doubt as to the ages of the
offended parties who consented to have sex with him. Nonetheless the
accused was ordered to pay moral and exemplary damages and
ordered deported.3 In such a case to pay the accused compensation
for having been "unjustly convicted" by the trial court would be utterly
inconsistent with his liability to the complainant. Yet to follow
petitioner's theory such an accused would be entitled to compensation
under sec. 3(a).
The truth is that the presumption of innocence has never been
intended as evidence of innocence of the accused but only to shift the
burden of proof that he is guilty to the prosecution. If "accusation is
not synonymous with guilt,"4 so is the presumption of innocence not a
proof thereof. It is one thing to say that the accused is presumed to be
73
innocent in order to place on the prosecution the burden of proving
beyond reasonable doubt that the accused is guilty. It is quite another
thing to say that he is innocent and if he is convicted that he has been
"unjustly convicted." As this Court held in a case:
Though we are acquitting the appellant for the crime of rape with
homicide, we emphasize that we are not ruling that he is innocent or
blameless. It is only the constitutional presumption of innocence and
the failure of the prosecution to build an airtight case for conviction
which saved him, not that the facts of unlawful conduct do not exist.5
To say then that an accused has been "unjustly convicted" has to do
with the manner of his conviction rather than with his innocence. An
accused may on appeal be acquitted because he did not commit the
crime, but that does
not necessarily mean that he is entitled to compensation for having
been the victim of an "unjust conviction." If his conviction was due to
an error in the appreciation of the evidence the conviction while
erroneous is not unjust. That is why it is not, on the other hand,
correct to say as does respondent, that under the law liability for
compensation depends entirely on the innocence of the accused.
The phrase "unjustly convicted" has the same meaning as "knowingly
rendering an unjust judgment" in art. 204 of the Revised Penal Code.
What this Court held in In re Rafael C. Climaco 6 applies:
In order that a judge may be held liable for knowingly rendering an
unjust judgment, it must be shown beyond doubt that the judgment is
unjust as it is contrary to law or is not supported by the evidence, and
the same was made with conscious and deliberate intent to do an
injustice . . . .
To hold a judge liable for the rendition of manifestly unjust judgment
by reason of inexcusable negligence or ignorance, it must be shown,
according to Groizard, that although he has acted without malice, he
failed to observe in the performance of his duty, that diligence,
prudence and care which the law is entitled to exact in the rendering
of any public service. Negligence and ignorance are inexcusable if they
imply a manifest injustice which cannot be explained by a reasonable
interpretation. Inexcusable mistake only exists in the legal concept
when it implies a manifest injustice, that is to say, such injustice which
cannot be explained by a reasonable interpretation, even though there
is a misunderstanding or error of the law applied, yet in the contrary it
results, logically and reasonably, and in a very clear and indisputable
manner, in the notorious violation of the legal precept.
Indeed, sec. 3(a) does not refer solely to an unjust conviction as a
result of which the accused is unjustly imprisoned, but, in addition, to
an unjust accusation. The accused must have been "unjustly accused,
in consequence of which he is unjustly convicted and then imprisoned.
It is important to note this because if from its inception the
prosecution of the accused has been wrongful, his conviction by the
court is, in all probability, also wrongful. Conversely, if the prosecution
is not malicious any conviction even though based on less than the
required quantum of proof in criminal cases may be erroneous but not
necessarily unjust.
The reason is that under Rule 112, sec. 4, the question for the
prosecutor in filing a case in court is not whether the accused is guilty
beyond reasonable doubt but only whether "there is reasonable
ground to believe that a crime has been committed and the accused is
probably guilty thereof." Hence, an accusation which is based on
"probable guilt" is not an unjust accusation and a conviction based on
such degree of proof is not necessarily an unjust judgment but only an
erroneous one. The remedy for such error is appeal.
In the case at bar there is absolutely no evidence to show that
petitioner's conviction by the trial court was wrongful or that it was
the product of malice or gross ignorance or gross negligence. To the
contrary, the court had reason to believe that petitioner and his co-
accused were in league, because petitioner is the father-in-law of
Wilfredo Balderrama and it was petitioner who bore the victim a
grudge because of a land dispute. Not only that. Petitioner and his
coaccused arrived together in the hut of the victims and forced their
way into it.
The Court of Appeals ruled there was no conspiracy only because
there was no proof that he did or say anything on the occasion. Said
the appellate court.
74
Both eyewitness testimonies fail to show the appellant Felicito
Basbacio to have committed any act at all. Both fail to show Felicito
Basbacio as having said anything at all. Both fail to show Felicito
Basbacio as having committed anything in furtherance of a conspiracy
to commit the crimes charged against the defendants. It seems to be a
frail and flimsy basis on which to conclude that conspiracy existed
between actual killer Wilfredo Balderrama and Felicito Basbacio to
commit murder and two frustrated murders on that night of June 26,
1988. It may be asked: where was the coming together of the two
defendants to an agreement to commit the crimes of murder and
frustrated murder on two counts? Where was Basbacio's contribution
to the commission of the said crimes? Basbacio was — as the record
shows — nothing but part of the dark shadows of that night. . . .
One may take issue with this ruling because precisely conspiracy may
be shown by concert of action and other circumstances. Why was
petitioner with his son-in-law? Why did they apparently flee together?
And what about the fact that there was bad blood between petitioner
and the victim Federico Boyon? These questions may no longer be
passed upon in view of the acquittal of petitioner but they are relevant
in evaluating his claim that he had been unjustly accused, convicted
and imprisoned before he was released because of his acquittal on
appeal. We hold that in view of these circumstances respondent
Secretary of Justice and the Board of Claims did not commit a grave
abuse of its discretion in disallowing petitioner's claim for
compensation under Rep. Act No. 7309.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
 G.R. No. 109835 November 22, 1993
JMM PROMOTIONS & MANAGEMENT, INC., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and ULPIANO L. DE
LOS SANTOS, respondent.
CRUZ, J.:
The sole issue submitted in this case is the validity of the order of
respondent National Labor Relations Commission dated October 30, 1992,
dismissing the petitioner's appeal from a decision of the Philippine
Overseas Employment Administration on the ground of failure to post the
required appeal bond.1
The respondent cited the second paragraph of Article 223 of the Labor
Code as amended, providing that:
In the case of a judgment involving a monetary award, an appeal by
the employer may be perfected only upon the posting of a cash or
surety bond issued by a reputable bonding company duly accredited
by the Commission in an amount equivalent to the monetary award
in the judgment appealed from.
and Rule VI, Section 6 of the new Rules of Procedure of the NLRC, as
amended, reading as follows:
Sec. 6. Bond — In case the decision of a Labor Arbiter involves a
monetary award, an appeal by the employer shall be perfected only
upon the posting of a cash or surety bond issued by a reputable
bonding company duly accredited by the Commission or the Supreme
Court in an amount equivalent to the monetary award.
The petitioner contends that the NLRC committed grave abuse of
discretion in applying these rules to decisions rendered by the POEA. It
insists that the appeal bond is not necessary in the case of licensed
recruiters for overseas employment because they are already required
under Section 4, Rule II, Book II of the POEA Rules not only to pay a
license fee of P30,000 but also to post a cash bond of P100,000 and a
surety bond of P50,000, thus:
75
Upon approval of the application, the applicant shall pay a license fee of
P30,000. It shall also post a cash bond of P100,000 and surety bond of
P50,000 from a bonding company acceptable to the Administration and
duly accredited by the Insurance Commission. The bonds shall answer for
all valid and legal claims arising from violations of the conditions for the
grant and use of the license, and/or accreditation and contracts of
employment. The bonds shall likewise guarantee compliance with the
provisions of the Code and its implementing rules and regulations relating
to recruitment and placement, the Rules of the Administration and
relevant issuances of the Department and all liabilities which the
Administration may impose. The surety bonds shall include the condition
that the notice to the principal is notice to the surety and that any
judgment against the principal in connection with matters falling under
POEA's jurisdiction shall be binding and conclusive on the surety. The
surety bonds shall be co-terminus with the validity period of license.
(Emphasis supplied)
In addition, the petitioner claims it has placed in escrow the sum of
P200,000 with the Philippine National Bank in compliance with Section
17, Rule II, Book II of the same Rule, "to primarily answer for valid and
legal claims of recruited workers as a result of recruitment violations or
money claims."
Required to comment, the Solicitor General sustains the appeal bond
requirement but suggest that the rules cited by the NLRC are applicable
only to decisions of the Labor Arbiters and not of the POEA. Appeals from
decisions of the POEA, he says, are governed by the following provisions
of Rule V, Book VII of the POEA Rules:
Sec. 5. Requisites for Perfection of Appeal. The appeal shall be filed
within the reglementary period as provided in Section 1 of this Rule;
shall be under oath with proof of payment of the required appeal fee
and the posting of a cash or surety bond as provided in Section 6 of
this Rule; shall be accompanied by a memorandum of appeal which
shall state the grounds relied upon and the arguments in support
thereof; the relief prayed for; and a statement of the date when the
appellant received the appealed decision and/or award and proof of
service on the other party of such appeal.
A mere notice of appeal without complying with the other requisites
aforestated shall not stop the running of the period for perfecting an
appeal.
 Sec. 6. Bond. In case the decision of the Administration involves
a monetary award, an appeal by the employer shall be perfected only
upon the posting of a cash or surety bond issued by a reputable
bonding company duly accredited by the Commission in an amount
equivalent to the monetary award. (Emphasis supplied)
The question is, having posted the total bond of P150,000 and placed in
escrow the amount of P200,000 as required by the POEA Rules, was the
petitioner still required to post an appeal bond to perfect its appeal from a
decision of the POEA to the NLRC?
It was.
The POEA Rules are clear. A reading thereof readily shows that in addition
to the cash and surety bonds and the escrow money, an appeal bond in an
amount equivalent to the monetary award is required to perfect an appeal
from a decision of the POEA. Obviously, the appeal bond is intended to
further insure the payment of the monetary award in favor of the
employee if it is eventually affirmed on appeal to the NLRC.
It is true that the cash and surety bonds and the money placed in escrow
are supposed to guarantee the payment of all valid and legal claims
against the employer, but these claims are not limited to monetary awards
to employees whose contracts of employment have been violated. The
POEA can go against these bonds also for violations by the recruiter of the
conditions of its license, the provisions of the Labor Code and its
implementing rules, E.O. 247 (reorganizing POEA) and the POEA Rules,
as well as the settlement of other liabilities the recruiter may incur.
As for the escrow agreement, it was presumably intended to provide for a
standing fund, as it were, to be used only as a last resort and not to be
reduced with the enforcement against it of every claim of recruited
workers that may be adjudged against the employer. This amount may not
even be enough to cover such claims and, even if it could initially, may
eventually be exhausted after satisfying other subsequent claims.
As it happens, the decision sought to be appealed grants a monetary
award of about P170,000 to the dismissed employee, the herein private
respondent. The standby guarantees required by the POEA Rules would
be depleted if this award were to be enforced not against the appeal bond
but against the bonds and the escrow money, making them inadequate for
the satisfaction of the other obligations the recruiter may incur.
76
Indeed, it is possible for the monetary award in favor of the employee to
exceed the amount of P350,000, which is the sum of the bonds and
escrow money required of the recruiter.
It is true that these standby guarantees are not imposed on local
employers, as the petitioner observes, but there is a simple explanation for
this distinction. Overseas recruiters are subject to more stringent
requirement because of the special risks to which our workers abroad are
subjected by their foreign employers, against whom there is usually no
direct or effective recourse. The overseas recruiter is solidarily liable with
a foreign employer. The bonds and the escrow money are intended to
insure more care on the part of the local agent in its choice of the foreign
principal to whom our overseas workers are to be sent.
It is a principle of legal hermeneutics that in interpreting a statute (or a
set of rules as in this case), care should be taken that every part thereof be
given effect, on the theory that it was enacted as an integrated measure
and not as a hodge-podge of conflicting provisions. Ut res magis valeat
quam pereat. 2 Under the petitioner's interpretation, the appeal bond
required by Section 6 of the aforementioned POEA Rule should be
disregarded because of the earlier bonds and escrow money it has posted.
The petitioner would in effect nullify Section 6 as a superfluity but we do
not see any such redundancy; on the contrary, we find that Section 6
complements Section 4 and Section 17. The rule is that a construction
that would render a provision inoperative should be avoided; instead,
apparently inconsistent provisions should be reconciled whenever possible
as parts of a coordinated and harmonious whole.
Accordingly, we hold that in addition to the monetary obligations of the
overseas recruiter prescribed in Section 4, Rule II, Book II of the POEA
Rules and the escrow agreement under Section 17 of the same Rule, it is
necessary to post the appeal bond required under Section 6, Rule V, Book
VII of the POEA Rules, as a condition for perfecting an appeal from a
decision of the POEA.
Every intendment of the law must be interpreted in favor of the working
class, conformably to the mandate of the Constitution. By sustaining
rather than annulling the appeal bond as a further protection to the
claimant employee, this Court affirms once again its commitment to the
interest of labor.
WHEREFORE, the petition is DISMISSED, with costs against the
petitioner. It is so ordered.
 G.R. No. 191894 July 15, 2015
DANILO A. DUNCANO, Petitioner,
vs.
HON. SANDIGANBAYAN (2nd DIVISION), and HON. OFFICE OF
THE SPECIAL PROSECUTOR, Respondents.
DECISION
PERALTA, J.:
This petition for certiorari under Rule 65 of the Rules of Court (Rules)
with prayer for issuance of preliminary injunction and/or temporary
restraining order seeks to reverse and set aside the August 18, 2009
Resolution1 and February 8, 2010 Order2 of respondent
Sandiganbayan Second Division in Criminal Case No. SB-09-
CRM-0080, which denied petitioner's Motion to Dismiss on the ground
of la9k of jurisdiction.
The facts are plain and undisputed.
Petitioner Danilo A. Duncano is, at the time material to the case, the
Regional Director of the Bureau of Internal Revenue (BIR) with Salary
Grade 26 as classified under Republic Act (R.A.) No. 6758.3 On March
24, 2009,4 the Office of the Special Prosecutor (OSP), Office of the
Ombudsman, filed a criminal case against him for violation of Section
8, in relation to Section 11 of R.A. No. 6713,5 allegedly committed as
follows:
That on or about April 15, 2003, or sometime prior or subsequent
thereto, in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, accused DANILO DUNCANO y ACIDO, a high
ranking public officer, being the Regional Director of Revenue Region
No. 7, of the Bureau of Internal Revenue, Quezon City, and as such is
under an obligation to accomplish and submit declarations under oath
of his assets, liabilities and net worth and financial and business
interests, did then and there, wilfully, unlawfully and criminally fail to
disclose in his Sworn Statement of Assets and Liabilities and Networth
(SALN) for the year 2002, his financial and business interests/
connection in Documail Provides Corporation and Don Plus Trading of
77
which he and his family are the registered owners thereof, and the
1993 Nissan Patrol motor vehicle registered in the name of his son
VINCENT LOUIS P. DUNCANO which are part of his assets, to the
damage and prejudice of public interest.
CONTRARY TO LAW.
Prior to his arraignment, petitioner filed a Motion to Dismiss With
Prayer to Defer the Issuance of Warrant of Arrest7 before respondent
Sandiganbayan Second Division. As the OSP alleged, he admitted that
he is a Regional Director with Salary Grade 26. Citing Inding v.
Sandiganbayan8 and Serana v. Sandiganbayan, et al.,9 he asserted
that under Presidential Decree (P.D.) No. 1606, as amended by Section
4 (A) (1) of R.A No. 8249,10 the Sandiganbayan has no jurisdiction to
try and hear the case because he is an official of the executive branch
occupying the position of a Regional Director but with a compensation
that is classified as below Salary Grade 27.
In its Opposition,11 the OSP argued that a reading of Section 4 (A)
(1) (a) to (g) of the subject law would clearly show that the
qualification as to Salary Grade 27 and higher applies only to officials
of the executive branch other than the Regional Director and those
specifically enumerated. This is so since the term "Regional Director"
and "higher" are separated by the conjunction "and," which signifies
that these two positions are different, apart and distinct, words but are
conjoined together "relating one to the other" to give effect to the
purpose of the law. The fact that the position of Regional Director was
specifically mentioned without indication as to its salary grade
signifies the lawmakers’ intention that officials occupying such
position, regardless of salary grade, fall within the original and
exclusive jurisdiction of the Sandiganbayan. This issue, it is claimed,
was already resolved in Inding. Finally, the OSP contended that the
filing of the motion to dismiss is premature considering that the
Sandiganbayan has yet to acquire jurisdiction over the person of the
accused.
Still not to be outdone, petitioner invoked the applicability of Cuyco v.
Sandiganbayan12 and Organo v. Sandiganbayan13 in his rejoinder.
On August 18, 2009, the Sandiganbayan Second Division promulgated
its Resolution, disposing: WHEREFORE, in the light of the foregoing,
the Court hereby DENIES the instant Motion to Dismiss for being
devoid of merit. Let a Warrant of Arrest be therefore issued against the
accused.
SO ORDERED.14
The respondent court ruled that the position of Regional Director is
one of those exceptions where the Sandiganbayan has jurisdiction
even if such position is not Salary Grade 27. It was opined that Section
4 (A) (1) of R.A No. 8249 unequivocally provides that respondent
court has jurisdiction over officials of the executive branch of the
government occupying the position of regional director and higher,
otherwise classified as Salary Grade 27 and higher, of R.A. No. 6758,
including those officials who are expressly enumerated in
subparagraphs (a) to (g). In support of the ruling, this Court’s
pronouncements in Indingand Binay v. Sandiganbayan15 were cited.
Petitioner filed a Motion for Reconsideration, but it was denied;16
Hence, this petition.
Instead of issuing a temporary restraining order or writ of preliminary
injunction, the Court required respondents to file a comment on the
petition without necessarily giving due course thereto.17 Upon
compliance of the OSP, a Rejoinder (supposedly a Reply) was filed by
petitioner.
At the heart of the controversy is the determination of whether,
according to P.D. No. 1606, as amended by Section 4 (A) (1) of R.A
No. 8249, only Regional Directors with Salary Grade of 27 and higher,
as classified under R.A. No. 6758, fall within the exclusive jurisdiction
of the Sandiganbayan. Arguing that he is not included among the
public officials specifically enumerated in Section 4 (A) (1) (a) to (g)
of the law and heavily relying as well on Cuyco, petitioner insists that
respondent court lacks jurisdiction over him, who is merely a Regional
Director with Salary Grade 26. On the contrary, the OSP maintains
that a Regional Director, irrespective of salary grade, falls within the
exclusive original jurisdiction of the Sandiganbayan. We find merit in
the petition.
78
The creation of the Sandiganbayan was mandated by Section 5, Article
XIII of the 1973 Constitution.18 By virtue of the powers vested in him by
the Constitution and pursuant to Proclamation No. 1081, dated
September 21, 1972, former President Ferdinand E. Marcos issued P.D.
No. 1486.19 The decree was later amended by P.D. No. 1606,20 Section
20 of Batas Pambansa Blg. 129,21 P.D. No. 1860,22 and P.D. No. 1861.23
With the advent of the 1987 Constitution, the special court was retained
as provided for in Section 4, Article XI thereof.24 Aside from Executive
Order Nos. 1425 and 14-a,26 and R.A. 7080,27 which expanded the
jurisdiction of the Sandiganbayan, P.D. No. 1606 was further modified by
R.A. No. 7975,28 R.A. No. 8249,29 and just this year, R.A. No. 10660.30
For the purpose of this case, the relevant provision is Section 4 of R.A. No.
8249, which states: SEC. 4. Section 4 of the same decree is hereby further
amended to read as follows:
"SEC. 4. Jurisdiction.– The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
"A. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying
the following positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission of the
offense:
"(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade ‘27’ and
higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
"(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors,
engineers, and other provincial department heads;
"(b) City mayor, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city
department heads;
"(c) Officials of the diplomatic service occupying the position of
consul and higher;

"(d) Philippine army and air force colonels, naval captains, and all
officers of higher rank;
"(e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior
superintendent or higher;
"(f) City and provincial prosecutors and their assistants, and officials
and prosecutors in the Office of the Ombudsman and special
prosecutor;
"(g) Presidents, directors or trustees, or managers of government-
owned or controlled corporations, state universities or educational
institutions or foundations.
"(2) Members of Congress and officials thereof classified as Grade
‘27’ and up under the Compensation and Position Classification Act
of 1989;
"(3) Members of the judiciary without prejudice to the provisions of
the Constitution;
"(4) Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and
"(5) All other national and local officials classified as Grade ‘27’ and
higher under the Compensation and Position Classification Act of
1989.
"B. Other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
"C. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
x x x"
Based on the afore-quoted, those that fall within the original jurisdiction
of the Sandiganbayan are: (1) officials of the executive branch with Salary
Grade 27 or higher, and (2) officials specifically enumerated in Section 4
(A) (1) (a) to (g), regardless of their salary grades.31 While the first part
79
of Section 4 (A) covers only officials of the executive branch with Salary
Grade 27 and higher, its second part specifically includes other executive
officials whose positions may not be of Salary Grade 27 and higher but
who are by express provision of law placed under the jurisdiction of the
Sandiganbayan.32
That the phrase "otherwise classified as Grade ‘27’ and higher" qualifies
"regional director and higher" is apparent from the Sponsorship Speech of
Senator Raul S. Roco on Senate Bill Nos. 1353and 844, which eventually
became R.A. Nos. 7975 and 8249, respectively:
As proposed by the Committee, the Sandiganbayan shall exercise original
jurisdiction over the cases assigned to it only in instances where one or
more of the principal accused are officials occupying the positions of
regional director and higher or are otherwise classified as Grade 27 and
higher by the Compensation and Position Classification Act of 1989,
whether in a permanent, acting or interim capacity at the time of the
commission of the offense. The jurisdiction, therefore, refers to a certain
grade upwards, which shall remain with the Sandiganbayan.33 (Emphasis
supplied)
To speed up trial in the Sandiganbayan, Republic Act No. 7975 was
enacted for that Court to concentrate on the "larger fish" and leave the
"small fry" to the lower courts. This law became effective on May 6, 1995
and it provided a two-pronged solution to the clogging of the dockets of
that court, to wit:
It divested the Sandiganbayan of jurisdiction over public officials whose
salary grades were at Grade "26" or lower, devolving thereby these cases
to the lower courts, and retaining the jurisdiction of the Sandiganbayan
only over public officials whose salary grades were at Grade "27" or higher
and over other specific public officials holding important positions in
government regardless of salary grade; x x x34 (Emphasis supplied)
The legislative intent is to allow the Sandiganbayan to devote its time and
expertise to big-time cases involving the so-called "big fishes" in the
government rather than those accused who are of limited means who
stand trial for "petty crimes," the so-called "small fry," which, in turn, helps
the court decongest its dockets.35
Yet, those that are classified as Salary Grade 26 and below may still fall
within the jurisdiction of the Sandiganbayan, provided that they hold the
positions enumerated by the law.36 In this category, it is the position held,
not the salary grade, which determines the jurisdiction of the
Sandiganbayan.37 The specific inclusion constitutes an exception to the
general qualification relating to "officials of the executive branch
occupying the positions of regional director and higher, otherwise
classified as Grade ‘27’ and higher, of the Compensation and Position
Classification Act of 1989."38 As ruled in Inding:
Following this disquisition, the paragraph of Section 4 which provides that
if the accused is occupying a position lower than SG 27, the proper trial
court has jurisdiction, can only be properly interpreted as applying to
those cases where the principal accused is occupying a position lower
than SG 27 and not among those specifically included in the enumeration
in Section 4 a. (1) (a) to (g). Stated otherwise, except for those officials
specifically included in Section 4 a. (1) (a) to (g), regardless of their
salary grades, over whom the Sandiganbayan has jurisdiction, all other
public officials below SG 27 shall be under the jurisdiction of the proper
trial courts "where none of the principal accused are occupying positions
corresponding to SG 27 or higher." By this construction, the entire Section
4 is given effect. The cardinal rule, after all, in statutory construction is
that the particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the
statute must be considered in fixing the meaning of any of its parts and in
order to produce a harmonious whole. And courts should adopt a
construction that will give effect to every part of a statute, if at all
possible. Ut magis valeat quam pereat or that construction is to be sought
which gives effect to the whole of the statute – its every word.39
Thus, to cite a few, We have held that a member of the Sangguniang
Panlungsod,40 a department manager of the Philippine Health Insurance
Corporation (Philhealth),41 a student regent of the University of the
Philippines,42 and a Head of the Legal Department and Chief of the
Documentation with corresponding ranks of Vice-Presidents and Assistant
Vice-President of the Armed Forces of the Philippines Retirement and
Separation Benefits System (AFP-RSBS)43 fall within the jurisdiction of
the Sandiganbayan.
Petitioner is not an executive official with Salary Grade 27 or higher.
Neither does he hold any position particularly enumerated in Section 4
(A) (1) (a) to (g). As he correctly argues, his case is, in fact, on all fours
with Cuyco.1avvphi1 Therein, the accused was the Regional Director of
the Land Transportation Office, Region IX, Zamboanga City, but at the
time of the commission of the crime in 1992, his position was classified as
Director II with Salary Grade 26.44 It was opined: Petitioner contends
80
that at the time of the commission of the offense in 1992, he was
occupying the position of Director II, Salary Grade 26, hence, jurisdiction
over the cases falls with the Regional Trial Court.
We sustain petitioner's contention.
The Sandiganbayan has no jurisdiction over violations of Section 3(a) and
(e), Republic Act No. 3019, as amended, unless committed by public
officials and employees occupying positions of regional director and
higher with Salary Grade "27" or higher, under the Compensation and
Position Classification Act of 1989 (Republic Act No. 6758) in relation to
their office.
In ruling in favor of its jurisdiction, even though petitioner admittedly
occupied the position of Director II with Salary Grade "26" under the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), the Sandiganbayan incurred in serious error of jurisdiction, and
acted with grave abuse of discretion amounting to lack of jurisdiction in
suspending petitioner from office, entitling petitioner to the reliefs prayed
for.45
In the same way, a certification issued by the OIC – Assistant Chief,
Personnel Division of the BIR shows that, although petitioner is a Regional
Director of the BIR, his position is classified as Director II with Salary
Grade 26.46
There is no merit in the OSP’s allegation that the petition was prematurely
filed on the ground that respondent court has not yet acquired jurisdiction
over the person of petitioner. Records disclose that when a warrant of
arrest was issued by respondent court, petitioner voluntarily surrendered
and posted a cash bond on September 17, 2009.Also, he was arraigned on
April 14, 2010,prior to the filing of the petition on April 30, 2010.
WHEREFORE, the foregoing considered, the instant petition for certiorari
is GRANTED. The August 18, 2009 Resolution and February 8, 2010
Order of the Sandiganbayan Second Division, which denied petitioner's
Motion to Dismiss on the ground of lack of jurisdiction, are REVERSED
AND SET ASIDE.
SO ORDERED.
 [G.R. No. 104712. May 6, 1992.]
3. ID.; ID.; SECTION 3, REPUBLIC ACT NO. 7166 (AN ACT
MANUEL T. DE GUIA, in his capacity as Councilor of the Municipality PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL
of Parañaque, Metro Manila, Petitioner, v. HON. COMMISSION ON ELECTIONS); PURPOSE. — A careful analysis of the provisions of Sec. 3
ELECTIONS, Respondent. shows that the purpose of districting/apportionment of the sanggunian
seats is to reduce the number of positions to be voted for in the May 11,
SYLLABUS
1992, synchronized elections and ensure the efficiency of electoral
process.
1. REMEDIAL LAW; SUPREME COURT; PROCEDURAL INFIRMITY
BRUSHED ASIDE WHERE ISSUE INVOLVED POLITICAL EXERCISE OF
4. ID.; ID.; ID.; ELECTION BY DISTRICT CONSTRUED. — As they
QUALIFIED VOTERS. — The Court observes that petitioner does not
now stand in relation to the districting/apportionment of local
allege that he is running for reelection, much less, that he is prejudiced
government units for purposes of election under Sec. 3 of R.A. 7166, it is
by the election, by district, in Parañaque. As such, he does not appear to
clear that: (1) for provinces with two (2) or more legislative districts
have a locus standi, a standing in law, a personal or substantial interest.
contemplated in par. (a), they shall continue to be elected by district; (2)
He does not also allege any legal right that has been violated by
for provinces with single legislative districts, as they have already been
Respondent. If for this alone, petitioner does not appear to have any
apportioned into two (2) districts each under par. (b), they shall
cause of action. However, considering the importance of the issue
henceforth be elected likewise by district; (3) for cities with two (2) or
involved, concerning as it does the political exercise of qualified voters
more legislative districts, e.g., the cities of Manila, Cebu and Davao, they
affected by the apportionment, and petitioner alleging abuse of discretion
shall also continue to be elected by district under the first part of par. (c);
and violation of the Constitution by respondent, We resolve to brush
and, (4) for the thirteen (13) municipalities in the Metro Manila Area,
aside the question of procedural infirmity, even as We perceive the
which have already been apportioned into two (2) districts each under
petition to be one of declaratory relief. We so held similarly through Mr.
the second proviso of par. (c), they shall likewise be elected by district in
Justice Edgardo L. Paras in Osmeña v. Commission on Elections.
the regular elections of May 11, 1992. Then, that should leave us the
Sangguniang Panlungsod of the single-district cities and the Sangguniang
2. STATUTORY CONSTRUCTION; STATUTES CONSTRUED
Bayan of the municipalities outside Metro Manila, which remain single-
ACCORDING TO ITS OBJECT. — No law is ever enacted that is intended
districts not having been ordered apportioned under Sec. 3 of R.A. 7166.
to be meaningless, much less inutile. We must therefore, as far as we can,
They will have to continue to be elected at large in the May 11, 1992,
define its meaning, its significance, its reason for being. As it has oft been
elections, although starting 1995 they shall all be elected by district to
held, the key to open the door to what the legislature intended which is
effect the full implementation of the letter and spirit of R.A. 7166. That is
vaguely expressed in the language of a statute is its purpose or the reason
the true import of par. (d).
which induced it to enact the statute. If the statute needs construction, as
it does in the present case, the most dominant in that process is the DECISION
purpose of the act. Statutes should be construed in the light of the object
to be achieved and the evil or mischief to be suppressed, and they should BELLOSILLO, J.:
be given such construction as will advance the object, suppress the
mischief, and secure the benefits intended. A construction should be This is a petition for certiorari and prohibition assailing the validity and
rejected that gives to the language used in a statute a meaning that does the enforcement by respondent Commission on Elections (COMELEC) of
not accomplish the purpose for which the statute was enacted, and that its RESOLUTION NO. 2313, adopting rules and guidelines in the
tends to defeat the ends which are sought to be attained by the apportionment, by district, of the number of elective members of the
enactment. Sangguniang Panlalawigan in provinces with only one (1) legislative
district and the Sangguniang Bayan of municipalities in the Metro Manila
81
Area for the preparation of the Project of District Apportionment by the
Provincial Election Supervisors and Election Registrars (Annex "A",
Petition), RESOLUTION NO. 2379, approving the Project of District
Apportionment submitted pursuant to Resolution No. 2313 (Annex "B",
Petition), and RESOLUTION UND. 92-010 holding that pars. (a), (b) and
(c), and the first sentence of par. (d), all of Sec. 3, R.A. 7166, apply to the
May 11, 1992 elections (Annex "C", Petition).
Petitioner Manuel T. De Guia is an incumbent Member of the Sangguniang
Bayan of the Municipality of Parañaque, Metro Manila, having been
elected in the January 1988 local elections. He prays, more particularly,
for reversal of the position of respondent insofar as it affects the
municipality of Parañaque and all the other municipalities in the Metro
Manila Area. He claims that the second proviso of par. (c), Sec. 3 of R.A.
7166, which requires the apportionment into district of said municipalities
does not specify when the members of their Sangguniang Bayan will be
elected by district. He would consequently lean on par. (d) of Sec. 3,
which immediately succeeds par. (c), to support his view that the elected
members of these municipalities mentioned in par. (c) should continue to
be elected at large in the May 11, 1992 elections.
Paragraph (d) states that" [F]or purposes of the regular elections on May
11, 1992, elective members of the Sangguniang Panlungsod and
Sangguniang Bayan shall be elected at large in accordance with existing
laws. However, beginning with the regular elections in 1995, they shall be
elected by district." Petitioner therefore insists that the elected members of
the Sangguniang Bayan of Parañaque fall under this category so that they
should continue to be elected at large until the 1995 regular elections.
Before addressing the crux of the controversy the Court observes that
petitioner does not allege that he is running for reelection, much less, that
he is prejudiced by the election, by district, in Parañaque. As such, he does
not appear to have a locus standi, a standing in law, a personal or
substantial interest. 1 He does not also allege any legal right that has been
violated by Respondent. If for this alone, petitioner does not appear to
have any cause of action.
However, considering the importance of the issue involved, concerning as
it does the political exercise of qualified voters affected by the
apportionment, and petitioner alleging abuse of discretion and violation
of the Constitution by respondent, We resolve to brush aside the question
of procedural infirmity, even as We perceive the petition to be one of
82
declaratory relief. We so held similarly through Mr. Justice Edgardo L.
Paras in Osmeña v. Commission on Elections. 2
Now on the meat of the dispute.
On November 18, 1991, Congress passed R.A. 7166, signed into law by
the President on November 26, 1991. It is "An Act Providing for
Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes." At issue in
this case is the proper interpretation of Sec. 3 thereof which provides:
"SECTION 3. Election of Members of the Sangguniang
Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan.
— The elective members of the Sangguniang Panlalawigan,
Sangguniang Panlungsod and Sangguniang Bayan shall be elected as
follows:
‘(a) For provinces with two (2) or more legislative districts, the elective
members of the Sangguniang Panlalawigan shall be elected by legislative
districts . . .
‘(b) For provinces with only one (1) legislative district, the Commission
shall divide them into two (2) districts for purposes of electing the members
of the Sangguniang Panlalawigan . . .
‘(c) The number and election of elective members of the Sangguniang
Panlungsod and Sangguniang Bayan in the Metro Manila Area, City of Cebu,
City of Davao and any other city with two (2) or more legislative districts
shall continue to be governed by the provisions of Sections 2 and 3 of
Republic Act No. 6636 . . . Provided, further, That, the Commission shall
divide each of the municipalities in Metro Manila Area into two (2) districts
by barangay for purposes of representation in the Sangguniang Bayan . . .
and,
‘(d) For purposes of the regular elections on May 11, 1992, elective
members of the Sangguniang Panlungsod and Sangguniang Bayan shall be
elected at large in accordance with existing laws. However, beginning with
the regular elections in 1995, they shall be elected by district . . ."
On November 20, 1991, respondent COMELEC, invoking authority of the
Constitution, the Omnibus Election Code, R.A. 6636, R.A. 6646 and R.A.
7166,3 issued Resolution No. 2313 and the subsequent resolutions in
question.

On February 20, 1992, in view of the perceived ambiguity in the meaning
of par: (d), particularly in relation to par. (c), Sec. 3, R.A. 7166, petitioner
filed with COMELEC a Motion for Clarification of its Resolution No. 2313
inquiring whether the members of the Sangguniang Bayan of Parañaque
and the other municipalities of Metro Manila enumerated therein, which
are all single-district municipalities, would be elected by district in the
May 11, 1992 or in the 1995 regular elections.
Meanwhile, on March 3, 1992, COMELEC issued Resolution No. 2379
approving the guidelines submitted by the Provincial Election Supervisors
and Municipal Election Registrars concerned pursuant to Resolution No.
2313, and stating therein its purpose in recommending to Congress the
districting/apportionment of Sangguniang Panlungsod and Sangguniang
Bayan seats. i.e., to reduce the number of candidates to be voted for in
the May 11, 1992 synchronized elections. In this Project of
Apportionment, Parañaque together with the other twelve (12)
municipalities in the Metro Manila Area was divided into two (2) districts
with six (6) elective councilors for each district.
On March 10, 1992, COMELEC resolved petitioner’s Motion for
Clarification by interpreting Sec. 3, R.A. 7166, to mean that the election
of elective members of the Sangguniang Bayan, by district, of the thirteen
(13) municipalities in the Metro Manila Area shall apply in the May 11,
1992 elections (Resolution UND. 92-010, prom. March 10, 1992).
Petitioner says that he received copy of Resolution UND 92-010 on March
13, 1992.
On April 7, 1992, apparently not satisfied with this third Resolution of
COMELEC, petitioner filed the instant petition asserting that under par.
(d), Sec. 3 of R.A. 7166 the elective members of the Sangguniang
Panlungsod and the Sangguniang Bayan, for purposes of the May 11,
1992 regular elections, shall be elected at large in accordance with
existing laws. He would include in this class of sanggunian members to be
elected at large those of the municipality of Parañaque.
Petitioner therefore imputes grave abuse of discretion to COMELEC in
promulgating Resolution No. 2313, Resolution No. 2379 and Resolution
UND. 92-010 which clarifies, contrary to his view, that the district
apportionment of the municipalities in the Metro Manila Area is
applicable to the May 11, 1992 regular elections.
83
We have carefully examined pars. (a), (b), (c) and (d) of Sec. 3, R.A.
7166, and its precursor bills on synchronized elections, Senate Bill No.
1861 and House Bill No. 34811, and We realize the web of confusion
generated by the seeming abstruseness in the language of the law. Some
framers of the law were even fazed at the empirical implications of some
of its provisions, particularly Sec. 3 thereof, and they admitted in fact that
said provisions were susceptible of varied interpretations, as borne by the
sponsorship and explanatory speeches now spread in the Journals of
Congress. Hence, We can understand why petitioner would interpret Sec.
3 as he would. But if we pursue his course, we may conclude in absurdity
because then there would have been no reason for R.A. 7166 to single out
the single-district provinces referred to in par. (b), and the municipalities
in the Metro Manila Area mentioned in the second proviso of par. (c), to
be apportioned at once into two (2) districts each if the members of their
respective sanggunian after all would still be elected at large as they were
in the 1988 elections.
No law is ever enacted that is intended to be meaningless, much less
inutile. We must therefore, as far as we can, divine its meaning, its
significance, its reason for being. As it has oft been held, the key to open
the door to what the legislature intended which is vaguely expressed in
the language of a statute is its purpose or the reason which induced it to
enact the statute. If the statute needs construction, as it does in the
present case, the most dominant in that process is the purpose of the act.
4 Statutes should be construed in the light of the object to be achieved
and the evil or mischief to be suppressed, 5 and they should be given such
construction as will advance the object, suppress the mischief, and secure
the benefits intended. 6 A construction should be rejected that gives to
the language used in a statute a meaning that does not accomplish the
purpose for which the statute was enacted, and that tends to defeat the
ends which are sought to be attained by the enactment. 7
The reason for the Promulgation of R.A. 7166 is shown in the explanatory
note of Senate Bill No. 1861 which states in part:
"This bill proposes to set the national and local elections for May
11, 1992, and provide for the necessary implementing details. It
also endorses reforms and measures to ensure the conduct of free,
orderly, honest, peaceful and credible elections. Specifically, it
seeks to: (1) Reduce the number of positions to be voted for by
providing therein that the members of the Sangguniang
Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan
be elected not at large, but by district . . ."

That respondent COMELEC is cognizant of this legislative intent of R.A.
7166 is reflected in the "WHEREAS" clauses constituting the preamble to
Resolution No. 2379. Thus —
"WHEREAS, the Commission on Elections, in order to reduce the
number of candidates to be voted for in the May 11, 1992
synchronized elections recommended, among others, to the
Congress of the Philippines, the districting/apportionment of
sangguniang panlungsod and sangguniang bayan seats;
"WHEREAS, the Congress of the Philippines passed Republic Act
7166, and approved by the President of the Philippines on
November 26, 1991, adopting among others, the recommendation
of the Commission on Elections aforestated;
"WHEREAS, pursuant to, and in implementation of Republic Act
7166, particularly Section 3 thereof, the Commission promulgated
Resolution No. 2313, directing the Provincial Election Supervisors
and Election Registrars concerned to submit, after consultation,
public hearings, and consensus-taking with the different sectors in
the community, the Project of District Apportionment of single
legislative-district provinces and municipalities in the Metro
Manila a
"WHEREAS, the established criteria/guidelines in the
determination of the district apportionment are as follows: a.
compactness, contiguity and adjacentness of territory; b.
apportionment shall be based on the 1990 census of population; c.
no municipality, in the case of provinces, and no barangay, in the
case of cities and municipalities, shall be fragmented or
apportioned into different districts.”
This avowed policy of having sanggunian members elected by district is
also manifest from the four corners of Sec. 3 of R A. 7166. 8 Thus, a
careful analysis of the provisions of Sec. 3 shows that the purpose of
districting/apportionment of the sanggunian seats is to reduce the
number of positions to be voted for in the May 11, 1992, synchronized
elections and ensure the efficiency of electoral process. Considering that
the single-district provinces and the municipalities in the Metro Manila
Area, which are all single-districts, and under pars. (b) and (c) have
already been apportioned into two (2) districts, they will henceforth be
electing the members of their Sangguniang Panlalawigan and
84
Sangguniang Bayan by district in the coming May 11, 1992, elections,
although under par (d), the single-district cities and all the municipalities
outside the Metro Manila Area which are all likewise single-districts, will
have to continue electing at large the members of their Sangguniang
Panlungsod and Sangguniang Bayan as they have yet to be apportioned.
But beginning the regular elections of 1995, they will all have to be
elected by district. By then, COMELEC would have had enough time to
apportion the single-district cities and the municipalities outside the
Metro Manila Area.
As they now stand in relation to the districting/apportionment of local
government units for purposes of election under Sec. 3 of R.A. 7166, it is
clear that: (1) for provinces with two (2) or more legislative districts
contemplated in par. (a), they shall continue to be elected by district; (2)
for provinces with single legislative districts, as they have already been
apportioned into two (2) districts each under par. (b), they shall
henceforth be elected likewise by district; (3) for cities with two (2) or
more legislative districts, e.g., the cities of Manila, Cebu and Davao, they
shall also continue to be elected by district under the first part of par. (c);
and, (4) for the thirteen (13) municipalities in the Metro Manila Area,
which have already been apportioned into two (2) districts each under
the second proviso of par. (c), they shall likewise be elected by district in
the regular elections of May 11, 1992.chanrobles virtual lawlibrary
Then, that should leave us the Sangguniang Panlungsod of the single -
district cities and the Sangguniang Bayan of the municipalities outside
Metro Manila, which remain single-districts not having been ordered
apportioned under Sec. 3 of R.A. 7166. They will have to continue to be
elected at large in the May 11, 1992, elections, although starting 1995
they shall all be elected by district to affect the full implementation of the
letter and spirit of R.A. 7166. That is the true import of par. (d).
Consequently, as We view it, where he stands, petitioner must fall.
WHEREFORE, finding no abuse of discretion, much less grave, on the part
of respondent, and for lack of merit, the instant petition is DISMISSED.
No costs.
SO ORDERED.
 G.R. No. 78687 January 31, 1989
ELENA SALENILLAS AND BERNARDINO SALENILLAS, petitioners,
vs.
HONORABLE COURT OF APPEALS and HONORABLE RAYMUNDO
SEVA, JUDGE OF BRANCH 38 OF THE REGIONAL TRIAL COURT
OF CAMARINES NORTE and WILLIAM GUERRA, respondents.
SARMIENTO, J.:
This petition for review on certiorari which seeks the reversal and
setting aside of the decision 1 of the Court of Appeals 2 dismissing the
petition for certiorari against Judge Raymundo Seva of the Regional
Trial Court of Camarines Norte and the private respondent, William
Guerra, involves a pure question of law i.e., the coverage and
application of Section 119 of Commonwealth Act No. 141, as
amended, known otherwise as the Public Land Act.
The facts are undisputed.
The property subject matter of the case was formerly covered by
Original Certificate of Title No. P-1248, issued by virtue of Free Patent
Application No. 192765, in favor of the spouses, Florencia H. de
Enciso and Miguel Enciso. The said original certificate of title was
inscribed in the Registration Book for the Province of Camarines Norte
on December 10, 1961. On February 28, 1970, the patentees, the
Enciso spouses, by an Absolute Deed of Sale, sold the property in favor
of the petitioners, the spouses Elena Salenillas and Bernardino
Salenillas for a consideration of P900.00. Petitioner Elena Salenillas is
a daughter of the Encisos. As a result of the aforementioned sale,
Transfer Certificate of Title No. T-8104 of the Register of Deeds of
Camarines Norte was issued in the name of the Salenillas, cancelling
Original Certificate of Title No. P-1248. On June 30, 1971, the
petitioners mortgaged the property now covered by T.C.T. No. T-8104
with the Rural Bank of Daet, Inc. The mortgage was subsequently
released on November 22, 1973 after the petitioners paid the amount
of P1,000.00. Later, or on December 4, 1975, the petitioners again
mortgaged the property, this time in favor of the Philippine National
85
Bank Branch, Daet, Camarines Norte as security for a loan of
P2,500.00.
For failure of the petitioners to pay their loan, extrajudicial foreclosure
proceeding, pursuant to Act No. 3135, was instituted by the Philippine
National Bank against the mortgage and the property was sold at a
public auction held on February 27, 1981. The private respondent,
William Guerra, emerged as the highest bidder in the said public
auction and as a result thereof a "Certificate of Sale" was issued to him
by the Ex Officio Provincial Sheriff of Camarines Norte. Ultimately, on
July 12, 1983, a "Sheriff's Final Deed" was executed in favor of the
private respondent.
On August 17,1983, the Philippine National Bank filed with the
Regional Trial Court of Camarines Norte at Daet, a motion for a writ of
possession. The public respondent, Judge Raymundo Seva of the trial
court, acting on the motion, issued on September 22, 1983 an order
for the issuance of a writ of possession in favor of the private
respondent. When the deputy sheriff of Camarines Norte however,
attempted on November 17, 1983, to place the property in the
possession of the private respondent, the petitioners refused to vacate
and surrender the possession of the same and instead offered to
repurchase it under Section 119 of the Public Land Act. On August 15,
1984, another motion, this time for the issuance of an alias writ of
possession was filed by the private respondent with the trial court. The
petitioners, on August 31, 1984, opposed the private respondents'
motion and instead made a formal offer to repurchase the property.
Notwithstanding the petitioners' opposition and formal offer, the trial
court judge on October 12, 1984 issued the alias writ of possession
prayed for the private respondent. The petitioners moved for a
reconsideration of the order but their motion was denied.
Undeterred by their initial setback, the petitioners elevated the case to
the respondent Court of Appeals by way of a petition for certiorari
claiming that the respondent trial court judge acted with grave abuse
of discretion in issuing the order dated October 12, 1984 granting the
writ of possession, and the order dated October 22, 1984, denying
their motion for reconsider consideration.
In a resolution dated January 23, 1985, the respondent appellate court
gave due course to the petition; required the parties to submit
simultaneous memoranda in support to their respective positions; and
restrained the trial court and the private respondent from executing,
implementing or otherwise giving effect to the assailed writ of
possession until further orders from the court. 3 However, in a
decision promulgated on September 17, 1986, the respondent Court of
Appeals dismissed the case for lack of merit. According to the
appellate court:
It must be noted that when the original owner, Florencia H. Enciso
whose title, OCT No. P-1248, was issued on August 9, 1961, executed
a deed of absolute sale on February 28, 1970 of the property covered
by said title to spouses Elena Salenillas and Bernardino Salenillas, the
five year period to repurchase the property provided for in Section 119
of Commonwealth Act No. 141 as amended could have already
started. Prom this fact alone, the petition should have been dismissed.
However, granting that the transfer from parent to child for a nominal
sum may not be the "conveyance" contemplated by the law. We will
rule on the issue raised by the petitioners. 4
xxx xxx xxx
Applying the case of Monge, et al. vs. Angeles, et al., 5 the appellate
court went on to hold that the five-year period of the petitioners to
repurchase under Section 119 of the Public Land Act had already
prescribed. The point of reckoning, ruled the respondent court in
consonance with Monge is from the date the petitioners mortgaged
the property on December 4, 1973. Thus, when the petitioners made
their formal offer to repurchase on August 31, 1984, the period had
clearly expired.
In an effort to still overturn the decision, the petitioners moved for
reconsideration. Their motion apparently went for naught because on
May 7, 1987, the respondent appellate court resolved to deny the
same. Hence, this petition.
Before us, the petitioners maintain that contrary to the rulings of the
courts below, their right to repurchase within five years under Section
119 of the Public Land Act has not yet prescribed. To support their
86
contention, the petitioners cite the cases of Paras vs. Court of Appeals
6 and Manuel vs. Philippine National Bank, et al. 7
On the other side, the private respondent, in support of the appellate
court's decision, states that the sale of the contested property by the
patentees to the petitioners disqualified the latter from being legal
heirs vis-a-vis the said property. As such, they (the petitioners) no
longer enjoy the right granted to heirs under the provisions of Section
119 of the Public Land Act. 8
In fine, what need be determined and resolved here are: whether or
not the petitioners have the right to repurchase the contested property
under Section 119 of the Public Land Act; and assuming the answer to
the question is in the affirmative, whether or not their right to
repurchase had already prescribed.
We rule for the petitioners. They are granted by the law the right to
repurchase their property and their right to do so subsists.
Section 119 of the Public Land Act, as amended, provides in full:
Sec. 119. 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 the conveyance.
From the foregoing legal provision, it is explicit that only three classes
of persons are bestowed the right to repurchase — the applicant-
patentee, his widow, or other legal heirs. Consequently, the contention
of the private respondent sustained by the respondent appellate court
that the petitioners do not belong to any of those classes of
repurchasers because they acquired the property not through
inheritance but by sale, has no legal basis. The petitioners-spouses are
the daughter and son-in-law of the Encisos, patentees of the contested
property. At the very least, petitioner Elena Salenillas, being a child of
the Encisos, is a "legal heir" of the latter. As such, and even on this
score alone, she may therefore validly repurchase. This must be so
because Section 119 of the Public Land Act, in speaking of "legal
heirs," makes no distinction. Ubi lex non distinguit nec nos distinguere
debemos.

Moreover, to indorse the distinction made by the private respondent
and the appellate court would be to contravene the very purpose of
Section 119 of the Public Land Act which is to give the homesteader or
patentee every chance to preserve for himself and his family the land
that the State had gratuitously given him as a reward for his labor in
clearing and cultivating it. 9 Considering that petitioner Salenillas is a
daughter of the spouses Florencia H. Enciso and Miguel Enciso, there
is no gainsaying that allowing her (Elena) and her husband to
repurchase the property would be more in keeping with the spirit of
the law. We have time and again said that between two statutory
interpretations, that which better serves the purpose of the law should
prevail.
Guided by the same purpose of the law, and proceeding to the other
issue here raised, we rule that the five-year period for the petitioners
to repurchase their property had not yet prescribed.
The case of Monge et al. vs. Angeles, et al., 10 cited as authority by
the respondent Court of Appeals is inapplicable to the present
controversy. The facts obtaining there are substantially different from
those in this case. In Monge the conveyance involved was a pacto de
retro sale and not a foreclosure sale. More importantly, the question
raised there was whether the five-year period provided for in Section
119 "should be counted from the date of the sale even if the same is
with an option to repurchase or from the date the ownership of the
land has become consolidated in favor of the purchaser because of the
homesteader's failure to redeem it. 11 It is therefore understandable
why the Court ruled there as it did. A sale on pacto de retro
immediately vests title, ownership, and, generally possession over the
property on the vendee a retro, subject only to the right of the vendor
a retro to repurchase within the stipulated period. It is an absolute
sale with a resolutory condition.
The cases 12 pointed to by the petitioner in support of their position,
on the other hand, present facts that are quite identical to those in the
case at bar. Both cases involved properties the titles over which were
obtained either through homestead or free patent. These properties
were mortgaged to a bank as collateral for loans, and, upon failure of
the owners to pay their indebtedness, the mortgages were foreclosed.
87
In both instances, the Court ruled that the five-year period to.
repurchase a homestead sold at public auction or foreclosure sale
under Act 3135 begins on the day after the expiration of the period of
redemption when the deed of absolute sale is executed thereby
formally transferring the property to the purchaser, and not otherwise.
Taking into account that the mortgage was foreclosed and the
mortgaged property sold at a public auction to the private respondent
on February 27, 1981, with the "Sheriff's Final Deed" issued on July
12, 1983, the two offers of the petitioners to repurchase the first on
November 17, 1983, and the second, formally, on August 31, 1984
were both made within the prescribed five-year period.
Now, as regards the redemption price, applying Sec. 30 of Rule 39 of
the Revised Rules of Court, the petitioners should reimburse the
private respondent the amount of the purchase price at the public
auction plus interest at the rate of one per centum per month up to
November 17, 1983, together with the amounts of assessments and
taxes on the property that the private respondent might have paid
after purchase and interest on the last named amount at the same rate
as that on the purchase price. 13
WHEREFORE, the petition is GRANTED. The Decision dated
September 17, 1986, and the Resolution dated May 7, 1987 of the
Court of Appeals, and the Orders dated September 22, 1983, October
12, 1984, and October 22, 1984 of the Regional Trial Court of Daet,
Camarines Norte, are hereby REVERSED and SET ASIDE, and another
one ENTERED directing the private respondent to reconvey the subject
property and to execute the corresponding deed of reconveyance
therefor in favor of the petitioners upon the return to him by the latter
of the purchase price and the amounts, if any, of assessments or taxes
he paid plus interest of one (1%) per centum per month on both
amounts up to November 17, 1983.
No costs.
SO ORDERED.
 No. 96948 August 2, 1991
B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT.
DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO
GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ
PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA,
LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ.
ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ.
LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT.
JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF
CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners,
vs.
B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL.
ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL.
DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN
PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO.
14, respondents.
No. 97454 August 2, 1991
AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF
OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR
GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO
OLARIO, Commanding Officer of the PNP/INP Detention Center/
Jail, petitioners,
vs.
HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court,
Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT
SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1
LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT
JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT
JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT
HERMINIO L. CANTACO PC, respondents.
CRUZ, J.:
These four cases have been consolidated because they involve
practically the same parties and related issues arising from the same
incident.
88
The petitioners in G.R. Nos. 93177 and 96948 and the private
respondents in G.R. Nos. 95020 and 97454 are officers of the Armed
Forces of the Philippines facing prosecution for their alleged
participation in the failed coup d' etat that took place on December 1
to 9, 1989.
The charges against them are violation of Articles of War (AW) 67
(Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman)
and AW 94 (Various Crimes) in relation to Article 248 of the Revised
Penal Code (Murder).
In G.R. No. 93177, which is a petition for certiorari, prohibition and
mandamus, they are questioning the conduct of the Pre-Trial
Investigation PTI Panel constituted to investigate the charges against
them and the creation of the General Court Martial GCM convened to
try them.
In G.R. No. 96948, the petitioners, besides challenging the legality of
GCM No. 14, seek certiorari against its ruling denying them the right
to peremptory challenge as granted by Article 18 of Com. Act No. 408.
In G.R. No. 95020, the orders of the respondent judge of the Regional
Trial Court of Quezon City are assailed on certiorari on the ground
that he has no jurisdiction over GCM No. 14 and no authority either to
set aside its ruling denying bail to the private respondents.
In G.R. No. 97454, certiorari is also sought against the decision of the
Regional Trial Court of Quezon City in a petition for habeas corpus
directing the release of the private respondents. Jurisdictional
objections are likewise raised as in G.R. No. 95020.
I
Before the charges were referred to GCM No. 14, a Pre-Trial
Investigation PTI Panel had been constituted pursuant to Office Order
No. 16 dated January 14, 1990, to investigate the petitioners in G.R.
Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena
dated January 30, 1990, individually addressed to the petitioners, to
wit:
You are hereby directed to appear in person before the undersigned
Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan
Hall, Camp Crame Quezon City, then and there to submit your
counter-affidavit and the affidavits of your witnesses, if any, in the pre-
trial investigation of the charge/charges against you for violence of
AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS.
Failure to submit the aforementioned counter-affidavits on the date
above specified shall be deemed a waiver of your right to submit
controverting evidence.
On the same date, the petitioners acknowledged receipt of a copy of
the charge sheet, sworn statements of witnesses, and death and
medical certificates of victims of the rebellion.
At the first scheduled hearing, the petitioners challenged the
proceedings on various grounds, prompting the PTI Panel to grant
them 10 days within which to file their objections in writing This was
done through a Motion for Summary Dismissal dated February 21,
1990.
In a resolution dated February 27,1990, the PTI Panel denied the
motion and gave the petitioners 5 days from notice to submit their
respective counter-affidavits and the affidavits of their witnesses.
On March 7, 1990, the petitioners verbally moved for reconsideration
of the foregoing denial and the PTI Panel gave them 7 days within
which to reduce their motion to writing. This was done on March
14,1990.
The petitioners now claim that there was no pre-trial investigation of
the charges as mandated by Article of War 71, which provides:
Art. 71. Charges Action upon. — Charges and specifications must
be signed by a person subject to military law, and under the oath
either that he has personal knowledge of, or has investigated, the
matters set forth therein and that the same are true in fact, to the
best of his knowledge and belief.
89
No charge will be referred to a general court-martial for trial
until after a thorough and impartial investigation thereof shall
have been made. This investigation will include inquiries as to the
truth of the matter set forth in said charges, form of charges, and
what disposition of the case should be made in the interest of
justice and discipline. At such investigation full opportunity shall
be given to the accused to cross-examine witnesses against him if
they are available and to present anything he may desire in his
own behalf, either in defense or mitigation, and the investigating
officer shall examine available witnesses requested by the accused.
If the charges are forwarded after such investigation, they shall
be accompanied by a statement of the substance of the testimony
taken on both sides. (Emphasis supplied.)
They also allege that the initial hearing of the charges consisted
merely of a roll call and that no prosecution witnesses were presented
to reaffirm their affidavits. while the motion for summary dismissal
was denied, the motion for reconsideration remains unresolved to date
and they have not been able to submit their counter-affidavits.
At the hearing of May 15, 1990, the petitioners in G.R. No. 96948
manifested that they were exercising their right to raise peremptory
challenges against the president and members of GCM No.14. They
invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14
ruled, however, that peremptory challenges had been discontinued
under P.D. No. 39.
In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990,
but the application was denied by GCM No.14. He thereupon filed
with the Regional Trial Court of Quezon City a petition for certiorari
and mandamus with prayer for provisional liberty and a writ of
preliminary injunction. After considering the petition and the answer
thereto filed by the president and members of GCM No.14, Judge
Maximiano C. Asuncion issued an order granting provisional liberty to
Ligot.
On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the
order for his release and to declare in contempt the commanding
officer of the PC/INP Jail for disobey 'ng the said order. He later also
complained that Generals De Villa and Aguirre had refused to release
him "pending final resolution of the appeal to be taken" to this Court.
After hearing, the trial court reiterated its order for the provisional
liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col.
Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional
intervenors Ltc Romelino Gojo and Capt. Manuel Ison.
On August 22, 1990, the trial court rendered judgment inter alia:
(a) Declaring, that Section 13, Article III of the Constitution granting
the right to bail to all persons with the defined exception is applicable
and covers all military men facing court-martial proceedings.
Accordingly, the assailed orders of General Court- Martial No. 14
denying bail to petitioner and intervenors on the mistaken assumption
that bail does not apply to military men facing court-martial
proceedings on the ground that there is no precedent, are hereby set
aside and declared null and void. Respondent General Court-Martial
No. 14 is hereby directed to conduct proceedings on the applications
of bail of the petitioner, intervenors and which may as well include
other persons facing charges before General Court-Martial No. 14.
Pending the proceedings on the applications for bail before General
Court-Martial No. 14, this Court reiterates its orders of release on the
provisional liberty of petitioner Jacinto Ligot as well as intervenors
Franklin Brawner and Arsenio Tecson.
On February 18, 1991, the private respondents in G.R. No. 97454 filed
with this Court a petition for habeas corpus on the ground that they
were being detained in Camp Crame without charges. The petition
was referred to the Regional Trial Court of Quezon City, where it was
raffled to respondent Judge Antonio P. Solano. Finding after hearing
that no formal charges had been filed against the petitioners after
more than a year after their arrest, the trial court ordered their
release.
II
The Court has examined the records of this case and rules as follows.
90
It appears that the petitioners in G.R. Nos. 93177 and 96948 were
given several opportunities to present their side at the pre-trial
investigation, first at the scheduled hearing of February 12, 1990, and
then again after the denial of their motion of February 21, 1990, when
they were given until March 7, 1990, to submit their counter-
affidavits. On that date, they filed instead a verbal motion for
reconsideration which they were again asked to submit in writing.
This they did on March 13, 1990. The motion was in effect denied
when the PTI Panel resolved to recommend that the charges be
referred to the General Court Martial for trial.
The said petitioners cannot now claim they have been denied due
process because the investigation was resolved against them owing to
their own failure to submit their counter-affidavits. They had been
expressly warned In the subpoena sent them that "failure to submit the
aforementioned counter-affidavits on the date above specified shall be
deemed a waiver of (their) right to submit controverting evidence."
They chose not to heed the warning. As their motions appeared to be
dilatory, the PTI Panel was justified in referring the charges to GCM
No. 14 without waiting for the petitioners to submit their defense.
Due process is satisfied as long as the party is accorded an opportunity
to be heard.1âwphi1 If it is not availed of, it is deemed waived or
forfeited without violation of the Bill of Rights.
There was in our view substantial compliance with Article of War 71
by the PTI Panel. Moreover, it is now settled that "even a failure to
conduct a pre-trial investigation does not deprive a general court-
martial of jurisdiction." We so held in Arula v. Espino,1 thus:
xxx xxx xxx
But even a failure to conduct a pre-trial investigation does not deprive
a general court-martial of jurisdiction.
The better accepted concept of pre-trial investigation is that it is
directory, not mandatory, and in no way affects the jurisdiction of a
court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986
(1949), the Court said:
We do not think that the pre-trial investigation procedure by Article 70
(The Philippine counter-part is article of war 71, Commonwealth Act
408) can properly be construed as an indispensable pre-requisite to
the exercise of the Army General court martial jurisdiction.. The
Article does serve important functions in the administration of court-
martial procedures and does provide safeguards to an accused. Its
language is clearly such that a defendant could object to trial in the
absence of the required investigation. In that event the court-martial
could itself postpone trial pending the investigation. And the military
reviewing authorities could consider the same contention, reversing a
court- martial conviction where failure to comply with Article 70 has
substantially injured an accused. But we are not persuaded that
Congress intended to make otherwise valid court-martial judgments
wholly void because pre-trial investigations fall short of the standards
prescribed by Article 70. That Congress has not required analogous
pre-trial procedure for Navy court-martial is an indication that the
investigatory plan was not intended to be exalted to the jurisdictional
level.
xxx xxx xxx
Shortly after enactment of Article 70 in 1920 the Judge Advocate
General of the Army did hold that where there had been no pre-trial
investigation, court-martial proceedings were void ab initio. But this
holding has been expressly repudiated in later holdings of the Judge
Advocate General. This later interpretation has been that the pre-trial
requirements of Article 70 are directory, not mandatory, and in no way
effect the jurisdiction of a court-martial. The War Department's
interpretation was pointedly called to the attention of Congress in
1947 after which Congress amended Article 70 but left unchanged the
language here under consideration. compensable pre-requisite to the
exercise of Army general court-martial jurisdiction
A trial before a general court-martial convened without any pretrial
investigation under article of war 71 would of course be altogether
irregular but the court-martial might nevertheless have jurisdiction.
Significantly, this rule is similar to the one obtaining in criminal
procedure in the civil courts to the effect that absence of preliminary
investigation does not go into the jurisdiction of the court but merely
to the regularity of the proceedings.
91
As to what law should govern the conduct of the preliminary
investigation, that issue was resolved more than two years ago in
Kapunan v. De Villa,2 where we declared:
The Court finds that, contrary to the contention of petitioners, there
was substantial compliance with the requirements of law as provided
in the Articles of War and P.D. No. 77, as amended by P.D. No. 911.
The amended charge sheets, charging petitioners and their co-
respondents with mutiny and conduct unbecoming an officer, were
signed by Maj. Antonio Ruiz, a person subject to military law, after he
had investigated the matter through an evaluation of the pertinent
records, including the reports of respondent AFP Board of Officers,
and was convinced of the truth of the testimonies on record. The
charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance
with and in the manner provided under Art. 71 of the Articles of War.
Considering that P.D. No. 77, as amended by P.D. No. 911, is only of
suppletory application, the fact that the charge sheets were not
certified in the manner provided under said decrees, i.e., that the
officer administering the oath has personally examined the affiant and
that he is satisfied that they voluntarily executed and understood its
affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial
investigation" was conducted by respondent Maj. Baldonado, wherein,
pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were
subpoenaed and required to file their counter-affidavit. However,
instead of doing so, they filed an untitled pleading seeking the
dismissal of the charges against them. That petitioners were not able
to confront the witnesses against them was their own doing, for they
never even asked Maj. Baldonado to subpoena said witnesses so that
they may be made to answer clarificatory questions in accordance with
P. D, No. 77, as amended by P.D. No. 911.
The petitioners also allege that GCM No. 14 has not been constitute in
accordance with Article 8 of the Articles of War because General Order
No. M-6, which supposedly convened the body, was not signed by Gen.
Renato de Villa as Chief of Staff.
Article of War No. 8 reads:
 Art. 8. General Courts-Martial. — The President of the
Philippines, the Chief of Staff of the Armed Forces of the
Philippines, the Chief of Constabulary and, when empowered by
the President, the commanding officer of a major command or
task force, the commanding officer of a division, the commanding
officer of a military area, the superintendent of the Military
Academy, the commanding officer of a separate brigade or body
of troops may appoint general courts-martial; but when any such
commander is the accuser or the prosecutor of the person or
persons to be tried, the court shall be appointed by superior
competent authority. ...
While it is true that General Order No. M-6 was not signed by Gen. De
Villa, there is no doubt that he authorized it because the order itself
said it was issued "By Command of General De Villa" and it has not
been shown to be spurious. As observed by the Solicitor General, the
Summary Disposition Form showed that Gen. De Villa, as Chief of
Staff, AFP, actually constituted GCM No. 14 and appointed its
president and members. It is significant that General De Villa has not
disauthorized or revoked or in any way disowned the said order, as he
would certainly have done if his authority had been improperly
invoked. On the contrary, as the principal respondent in G.R. No.
93177, he sustained General Order No. M 6 in the Comment filed for
him and the other respondents by the Solicitor General.
Coming now to the right to peremptory challenge, we note that this
was originally provided for under Article 18 of Com. Act No. 408
(Articles of War), as amended by Rep. Act No. 242, on June 12, 1948,
to wit:
Art. 18. Challenges. — Members of general or special courts-
martial may be challenged by the accused or the trial judge
advocate for cause stated to the court. The court shall determine
the relevancy and validity thereof, and shall not receive a
challenge to more than one member at a time. Challenges by the
trial judge advocate shall ordinarily be presented and decided
before those by the accused are offered. Each side shall be entitled
to the peremptory challenge, but the law member of the court
shall not be challenged except for cause.
92
The history of peremptory challenge was traced in Martelino v.
Alejandro,3 thus:
In the early formative years of the infant Philippine Army, after the
passage in 1935 of Commonwealth Act No. 1 (otherwise known as the
National Defense Act), except for a handful of Philippine Scout officers
and graduates of the United States military and naval academies who
were on duty with the Philippine Army, there was a complete dearth of
officers learned in military law, its aside from the fact that the officer
corps of the developing army was numerically made equate for the
demands of the strictly military aspects of the national defense
program. Because of these considerations it was then felt that
peremptory challenges should not in the meanwhile be permitted and
that only challenges for cause, in any number, would be allowed. Thus
Article 18 of the Articles of War (Commonwealth Act No. 408), as
worded on September 14, 1938, the date of the approval of the Act,
made no mention or reference to any peremptory challenge by either
the trial judge advocate of a court- martial or by the accused. After
December 17,1958, when the Manual for Courts-Martial of the
Philippine Army became effective, the Judge Advocate General's
Service of the Philippine Army conducted a continuing and intensive
program of training and education in military law, encompassing the
length and breadth of the Philippines. This program was pursued until
the outbreak of World War 11 in the Pacific on December 7, 1941.
After the formal surrender of Japan to the allies in 1945, the officer
corps of the Armed Forces of the Philippines had expanded to a very
large number, and a great many of the officers had been indoctrinated
in military law. It was in these environmental circumstances that
Article of War 18 was amended on June 12,1948 to entitle "each side"
to one peremptory challenge, with the sole proviso that "the law
member of court shall not be challenged except for cause.
On September 27,1972, President Marcos issued General Order No. 8,
empowering the Chief of Staff of the Armed Forces to create military
tribunals "to try and decide cases of military personnel and such other
cases as may be referred to them.
On November 7,1972, he promulgated P.D. No. 39 (Governing the
Creation, Composition, Jurisdiction, Procedure, and other matters
relevant to military Tribunals). This decree disallowed the peremptory
challenge, thus:
No peremptory challenge shall be allowed. Challenges for cause may
be entertained to insure impartiality and good faith. Challenges shall
immediately be heard and determined by a majority of the members
excluding the challenged member. A tie vote does not disqualify the
challenged member. A successfully challenged member shall be
immediately replaced.
On June 11, 1978, President Marcos promulgated P.D. No. 1498, or
the National Security Code, which was a compilation and codification
of decrees, general orders, LOI and policies intended "to meet the
continuing threats to the existence, security and stability of the State."
The modified rule on challenges under P.D. No. 39 was embodied in
this decree.
On January 17,1981, President Marcos issued Proc. No. 2045
proclaiming the termination of the state of martial law throughout the
Philippines. The proclamation revoked General Order No. 8 and
declared the dissolution of the military tribunals created pursuant
thereto upon final determination of the cases pending therein.
P.D. No. 39 was issued to implement General Order No. 8 and the
other general orders mentioned therein. With the termination of
martial law and the dissolution of the military tribunals created
thereunder, the reason for the existence of P.D. No. 39 ceased
automatically.
It is a basic canon of statutory construction that when the reason of
the law ceases, the law itself ceases. Cessante ratione legis, cessat ipsa
lex. This principle is also expressed in the maxim ratio legis est anima:
the reason of law is its soul.
Applying these rules, we hold that the withdrawal of the right to
peremptory challenge in L P.D. No. 39 became ineffective when the
apparatus of martial law was dismantled with the issuance of
Proclamation No. 2045, As a result, the old rule embodied in Article
18 of Com. Act No. 408 was automatically revived and now again
allows the right to peremptory challenge.
93
We do not agree with the respondents in G.R. No. 96948 that the right
to peremptory challenge remains withdrawn under P.D. No. 39. To
repeat for emphasis, this decree was itself withdrawn when martial
law was lifted on January 17, 1981. Indeed, even if not so withdrawn,
it could still be considered no longer operative, having been cast out
under the new dispensation as, in the words of the Freedom
Constitution, one of the "iniquitous vestiges of the previous regime.
The military tribunal was one of the most oppressive instruments of
martial law. It is curious that the present government should invoke
the rules of that discredited body to justify its action against the
accused officers.
The Court realizes that the recognition of the right to peremptory
challenge may be exploited by a respondent in a court-martial trial to
delay the proceedings and defer his deserved Punishment. It is hoped
that the accused officers in the cases at bar will not be so motivated.
At any rate, the wisdom of Com. Act No. 408, in the light of present
circumstances, is a matter addressed to the law-makers and not to this
Court. The judiciary can only interpret and apply the laws without
regard to its own misgivings on their adverse effects. This is a problem
only the political departments can resolve.
The petitioners in G.R. Nos. 95020 and 97454 question the propriety
of the petition for certiorari and mandamus and the petition for
habeas corpus filed by the private respondents with the Regional Trial
Courts of Quezon City. It is argued that since the private respondents
are officers of the Armed Forces accused of violations of the Articles of
War, the respondent courts have no authority to order their release
and otherwise interfere with the court-martial proceedings.
The petitioners further contend that under Sec. 9(3) of BP 1 29, the
Court of Appeals is vested with "exclusive appellate jurisdiction over
all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions." Rather irrelevantly, the petitioners also cite
the case of Yang v. Court of Appeals4 where this Court held that
"appeals from the Professional Regulation Commission are now
exclusively cognizable by the Court of Appeals.

It should be noted that the aforecited provision and the case cited
refer to ordinary appeals and not to the remedies employed by the
accused officers before the respondent courts.
In Martelino, we observed as follows:
It is true that civil courts as a rule exercise no supervision or correcting
power over the proceedings of courts-martial, and that mere errors in
their proceedings are not open to consideration. The single inquiry, the
test, is jurisdiction. But it is equally true that in the exercise of their
undoubted discretion, courts-martial may commit such an abuse of
discretion — what in the language of Rule 65 is referred to as "grave
abuse of discretion" — as to give rise to a defect in their jurisdiction.
This is precisely the point at issue in this action suggested by its nature
as one for certiorari and prohibition ... .
The Regional Trial Court has concurrent jurisdiction with the Court of
Appeals and the Supreme Court over petitions for certiorari,
prohibition or mandamus against inferior courts and other bodies and
on petitions for habeas corpus and quo warranto.5 In the absence of a
law providing that the decisions, orders and ruling of a court-martial
or the Office of the Chief of Staff can be questioned only before the
Court of Appeals and the Supreme Court, we hold that the Regional
Trial Court can exercise similar jurisdiction.
We find that the right to bail invoked by the private respondents in
G.R. Nos. 95020 has traditionally not been recognized and is not
available in the military, as an exception to the general rule embodied
in the Bill of Rights. This much was suggested in Arula, where we
observed that "the right to a speedy trial is given more emphasis in the
military where the right to bail does not exist.
The justification for this exception was well explained by the Solicitor
General as follows:
The unique structure of the military should be enough reason to
exempt military men from the constitutional coverage on the right to
bail.
94
Aside from structural peculiarity, it is vital to note that mutinous
soldiers operate within the framework of democratic system, are
allowed the fiduciary use of firearms by the government for the
discharge of their duties and responsibilities and are paid out of
revenues collected from the people. All other insurgent elements carry
out their activities outside of and against the existing political system.
xxx xxx xxx
National security considerations should also impress upon this
Honorable Court that release on bail of respondents constitutes a
damaging precedent. Imagine a scenario of say 1,000 putschists
roaming the streets of the Metropolis on bail, or if the assailed July
25,1990 Order were sustained, on "provisional" bail. The sheer
number alone is already discomforting. But, the truly disquieting
thought is that they could freely resume their heinous activity which
could very well result in the overthrow of duly constituted authorities,
including this Honorable Court, and replace the same with a system
consonant with their own concept of government and justice.
The argument that denial from the military of the right to bail would
violate the equal protection clause is not acceptable. This guaranty
requires equal treatment only of persons or things similarly situated
and does not apply where the subject of the treatment is substantially
different from others. The accused officers can complain if they are
denied bail and other members of the military are not. But they cannot
say they have been discriminated against because they are not allowed
the same right that is extended to civilians.
On the contention of the private respondents in G.R. No. 97454 that
they had not been charged after more than one year from their arrest,
our finding is that there was substantial compliance with the
requirements of due process and the right to a speedy trial.
The petition for habeas corpus was directly filed with this Court on
February 18, 1991, and was referred to the Regional Trial Court of
Quezon City for raffle, hearing and decision. It was heard on February
26, 1991, by the respondent court, where the petitioners submitted
the charge memorandum and specifications against the private
respondents dated January 30, 1991. On February 12, 1991, pursuant
to Office Order No. 31-91, the PTI panel was created and initial
investigation was scheduled on March 12, 1991 at 2:00 p.m. On
March 20, 1991, the private respondents received the copies of the
charges, charge sheets and specifications and were required to submit
their counter-affidavits on or before April 11, 1991. There was indeed
a delay of more than one year in the investigation and preparation of
the charges against the private respondents. However, this was
explained by the Solicitor General thus:
... The AFP Special Investigating Committee was able to complete it
pre-charge investigation only after one (1) year because hundreds of
officers and thousands of enlisted men were involved in the failed
coup. All of them, as well as other witnesses, had to be interviewed or
investigated, and these inevitably took months to finish. The pre-
charge investigation was rendered doubly difficult by the fact that
those involved were dispersed and scattered throughout the
Philippines. In some cases, command units, such as the Scout Rangers,
have already been disbanded. After the charges were completed, the
same still had to pass review and approval by the AFP Chief of Staff.
While accepting this explanation, the Court nevertheless must
reiterate the following admonition:
This Court as protector of the rights of the people, must stress the
point that if the participation of petitioner in several coup attempts for
which he is confined on orders of Adjutant General Jorge Agcaoili
cannot be established and no charges can be filed against him or the
existence of a prima facie case warranting trial before a military
commission is wanting, it behooves respondent then Major General
Rodolfo Biazon (now General) to release petitioner. Respondents must
also be reminded that even if a military officer is arrested pursuant to
Article 70 of then Articles of War, indefinite confinement is not
sanctioned, as Article 71 thereof mandates that immediate steps must
be taken to try the person accused or to dissmiss the charge and
release him. Any officer who is responsible for unnecessary delay in
investigating or carrying the case to a final conclusion may even be
punished as a court martial may direct.6
It should be noted, finally, that after the decision was rendered by
Judge Solano on February 26, 1991, the government filed a notice of
95
appeal ad cautelam and a motion for reconsideration, the latter was
ultimately denied, after hearing, on March 4, 1991. The 48- hour
period for appeal under Rule 41, Section 18, of the Rules of Court did
not run until after notice of such denial was received by the petitioners
on March 12, 1991. Contrary to the private respondents' contention,
therefore, the decision had not yet become final and executory when
the special civil action in G.R. No. 97454 was filed with this Court on
March 12, 1991.
III
Regarding the propriety of the petitions at bar, it is well to reiterate
the following observations of the Court in Arula:
The referral of charges to a court-martial involves the exercise of
judgment and discretion (AW 71). A petition for certiorari, in order to
prosper, must be based on jurisdictional grounds because, as long as
the respondent acted with jurisdiction, any error committed by him or
it in the exercise thereof will amount to nothing more than an error of
judgment which may be reviewed or corrected only by appeal. Even
an abuse of discretion is not sufficient by itself to justify the issuance
of a writ of certiorari.
As in that case, we find that the respondents in G.R. No. 93177 have
not acted with grave abuse of discretion or without or in excess of
jurisdiction to justify the intervention of the Court and the reversal of
the acts complained of by the petitioners. Such action is indicated,
however, in G.R. No. 96948, where we find that the right to
peremptory challenge should not have been denied, and in G.R. Nos.
95020 and 97454, where the private respondents should not have
been ordered released.
ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack
of merit. In G.R. No. 96948, the petition is GRANTED, and the
respondents are DIRECTED to allow the petitioners to exercise the
right of peremptory challenge under Article 18 of the Articles of War.
In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and
the orders of the respondent courts for the release of the private
respondents are hereby REVERSED and SET ASIDE. No costs. SO
ORDERED.
 G.R. No. 88979 February 7, 1992
LYDIA O. CHUA, petitioner,
vs.
THE CIVIL SERVICE COMMISSION, THE NATIONAL IRRIGATION
ADMINISTRATION and THE DEPARTMENT OF BUDGET AND
MANAGEMENT, respondents.
PADILLA, J.:
Pursuant to the policy of streamlining and trimming the bureaucracy,
Republic Act No. 6683 was approved on 2 December 1988 providing
for benefits for early retirement and voluntary separation from the
government service as well as for involuntary separation due to
reorganization. Deemed qualified to avail of its benefits are those
enumerated in Sec. 2 of the Act, as follows:
Sec. 2. Coverage. — This Act shall cover all appointive officials
and employees of the National Government, including
government-owned or controlled corporations with original
charters, as well as the personnel of all local government units.
The benefits authorized under this Act shall apply to all regular,
temporary, casual and emergency employees, regardless of age,
who have rendered at least a total of two (2) consecutive years of
government service as of the date of separation. Uniformed
personnel of the Armed Forces of the Philippines including those
of the PC-INP are excluded from the coverage of this Act.
Petitioner Lydia Chua believing that she is qualified to avail of the
benefits of the program, filed an application on 30 January 1989 with
respondent National Irrigation Administration (NIA) which, however,
denied the same; instead, she was offered separation benefits
equivalent to one half (1/2) month basic pay for every year of service
commencing from 1980. A recourse by petitioner to the Civil Service
Commission yielded negative results. 1 Her letter for reconsideration
dated 25 April 1989 pleaded thus:
xxx xxx xxx
96
With due respect, I think the interpretation of the Honorable
Commissioner of RA 6683 does not conform with the beneficent
purpose of the law. The law merely requires that a government
employee whether regular, temporary, emergency, or casual, should
have two consecutive years of government service in order to be
entitled to its benefits. I more than meet the requirement. Persons who
are not entitled are consultants, experts and contractual(s). As to the
budget needed, the law provides that the Department of Budget and
Management will shoulder a certain portion of the benefits to be
allotted to government corporations. Moreover, personnel of these NIA
special projects art entitled to the regular benefits, such (sic) leaves,
compulsory retirement and the like. There is no reason why we should
not be entitled to RA 6683.
xxx xxx xxx 2
Denying the plea for reconsideration, the Civil Service Commission
(CSC) emphasized:
xxx xxx xxx
We regret to inform you that your request cannot be granted. The
provision of Section 3.1 of Joint DBM-CSC Circular Letter No. 89-1
does not only require an applicant to have two years of satisfactory
service on the date of separation/retirement but further requires said
applicant to be on a casual, emergency, temporary or regular
employment status as of December 2, 1988, the date of enactment of
R.A. 6683. The law does not contemplate contractual employees in the
coverage.
Inasmuch as your employment as of December 31, 1988, the date of
your separation from the service, is co-terminous with the NIA project
which is contractual in nature, this Commission shall sustain its
original decision.
xxx xxx xxx3
In view of such denial, petitioner is before this Court by way of a
special civil action for certiorari, insisting that she is entitled to the
benefits granted under Republic Act No. 6683. Her arguments:
It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-
CSC Circular Letter No. 89-1 requires an applicant to be on a casual,
emergency, temporary or regular employment status. Likewise, the
provisions of Section 23 (sic) of the Joint DBM-CSC Circular Letter No.
88-1, implementing guidelines of R.A. No. 6683, provides:
"2.3 Excluded from the benefits under R.A. No. 6683 are the
following:
a) Experts and Consultants hired by agencies for a limited
period to perform specific activities or services with a definite
expected output: i.e. membership in Task Force, Part-Time,
Consultant/Employees.
b) Uniformed personnel of the Armed Forces of the Philippines
including those of the Philippine Constabulary and Integrated
National Police (PC-INP).
c) Appointive officials and employees who retire or elect to
be separated from the service for optional retirement with
gratuity under R.A. No. 1616, 4968 or with pension under R.A.
No. 186, as amended by R.A. No. 6680 or P.D. No. 1146, an
amended, or vice- versa.
d) Officials and employees who retired voluntarily prior to the
enactment of this law and have received the corresponding
benefits of that retirement/separation.
e) Officials and employees with pending cases punishable by
mandatory separation from the service under existing civil service
laws, rules and regulations; provided that if such officials and
employees apply in writing within the prescriptive period for the
availment of the benefits herein authorized, shall be allowed only
if acquitted or cleared of all charges and their application
accepted and approved by the head of office concerned."
97
Based on the above exclusions, herein petitioner does not belong to
any one of them. Ms. Chua is a full time employee of NIA entitled to
all the regular benefits provided for by the Civil Service Commission.
She held a permanent status as Personnel Assistant A, a position which
belongs to the Administrative Service. . . . If casuals and emergency
employees were given the benefit of R.A. 6683 with more reason that
this petitioner who was holding a permanent status as Personnel
Assistant A and has rendered almost 15 years of faithful, continuous
service in the government should be similarly rewarded by the
beneficient (sic) purpose of the law. 4
The NIA and the Civil Service Commission reiterate in their comment
petitioner's exclusion from the benefits of Republic Act No. 6683,
because:
1. Petitioner's employment is co-terminous with the project per
appointment papers kept by the Administrative Service in the head
office of NIA (the service record was issued by the Watershed
Management and Erosion Control Project (WMECP), Pantabangan,
Nueva Ecija). The project, funded by the World Bank, was completed
as of 31 December 1988, after which petitioner's position became
functus officio.
2. Petitioner is not a regular and career employee of NIA — her
position is not included in its regular plantilla. She belongs to the non-
career service (Sec. 6, P.D. No. 807) which is inherently short-lived,
temporary and transient; on the other hand, retirement presupposes
employment for a long period. The most that a non-career personnel
can expect upon the expiration of his employment is financial
assistance. Petitioner is not even qualified to retire under the GSIS law.
3. Assuming arguendo that petitioner's appointment is
permanent, security of tenure is available only for the term of office
(i.e., duration of project).
4. The objective of Republic Act No. 6683 is not really to grant
separation or retirement benefits but reorganization 5 to streamline
government functions. The application of the law must be made
consistent with the purpose for which it was enacted. Thus, as the
expressed purpose of the law is to reorganize the government, it will
not have any application to special projects such as the WMECP which
exists only for a short and definite period. This being the nature of
special projects, there is no necessity for offering its personnel early
retirement benefits just to induce voluntary separation as a step to
reorganization. In fact, there is even no need of reorganizing the
WMECP considering its short and limited life-span. 6
5. The law applies only to employees of the national government,
government-owned or controlled corporations with original charters
and local government units.
Due to the impossibility of reconciling the conflicting interpretations
of the parties, the Court is called upon to define the different classes of
employees in the public sector (i.e. government civil servants).
Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492,
as amended) deems an employment regular where the employee has
been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer. No equivalent
definition can be found in P.D.No. 807 (promulgated on 6 October
1975, which superseded the Civil Service Act of 1965 — R.A. No.
2260) or in the Administrative Code of 1987 (Executive Order No. 292
promulgated on 25 July 1987). The Early Retirement Law itself (Rep.
Act No. 6683) merely includes such class of employees (regular
employees) in its coverage, unmindful that no such specie is employed
in the public sector.
The appointment status of government employees in the career service
is classified as follows:
1. permanent — one issued to a person who has met the
requirements of the position to which appointment is made, in
accordance with the provisions of the Civil Service Act and the Rules
and Standards promulgated in pursuance thereof; 7
2. temporary — In the absence of appropriate eligibles and it
becomes necessary in the public interest to fill a vacancy, a temporary
appointment should be issued to a person who meets all the
requirements for the position to which he is being appointed except
the appropriate civil service eligibility: Provided, That such temporary
98
appointment shall not exceed twelve months, but the appointee may
be replaced sooner if a qualified civil service eligible becomes
available. 8
The Administrative Code of 1987 characterizes the Career Service as:
(1) Open Career positions for appointment to which prior qualification
in an appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in
nature; these include the faculty and academic staff of state colleges
and universities, and scientific and technical positions in scientific or
research institutions which shall establish and maintain their own
merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director, Chief of Department
Service and other officers of equivalent rank as may be identified by
the Career Executive Service Board, all of whom are appointed by the
President.
(4) Career officers, other than those in the Career Executive Service,
who are appointed by the President, such as the Foreign Service
Officers in the Department of Foreign Affairs;
(5) Commission officers and enlisted men of the Armed Forces which
shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations,
whether performing governmental or proprietary functions, who do
not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
9
The Non-Career Service, on the other hand, is characterized by:
. . . (1) entrance on bases other than those of the usual tests of merit
and fitness utilized for the career service; and (2) tenure which is
limited to a period specified by law, or which is coterminous with that
of the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose
employment was made.
Included in the non-career service are:
1. elective officials and their personal or confidential staff;
2. secretaries and other officials of Cabinet rank who hold their
positions at the pleasure of the President and their personal
confidential staff(s);
3. Chairman and Members of Commissions and boards with fixed
terms of office and their personal or confidential staff;
4. contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a
specific work or job requiring special or technical skills not available in
the employing agency, to be accomplished within a specific period,
which in no case shall exceed one year and performs or accomplishes
the specific work or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency.
5. emergency and seasonal personnel. 10
There is another type of non-career employee:
Casual — where and when employment is not permanent but
occasional, unpredictable, sporadic and brief in nature (Caro v.
Rilloroza, 102 Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96 Phil.
945)
Consider petitioner's record of service:
Service with the government commenced on 2 December 1974
designated as a laborer holding emergency status with the NIA —
Upper Pampanga River Project, R & R Division. 11 From 24 March
1975 to 31 August 1975, she was a research aide with temporary
status on the same project. On 1 September 1975 to 31 December
99
1976, she was with the NIA-FES III; R & R Division, then on 1 January
1977 to 31 May 1980, she was with NIA — UPR IIS (Upper Pampanga
River Integrated Irrigation Systems) DRD. On 1 June 1980, she went
to NIA — W.M.E.C.P. (Watershed Management & Erosion Control
Project) retaining the status of temporary employee. While with this
project, her designation was changed to personnel assistant on 5
November 1981; starting 9 July 1982, the status became permanent
until the completion of the project on 31 December 1988. The
appointment paper 12 attached to the OSG's comment lists her status
as co-terminus with the Project.
The employment status of personnel hired under foreign — assisted
projects is considered co-terminous, that is, they are considered
employees for the duration of the project or until the completion or
cessation of said project (CSC Memorandum Circular No. 39, S. 1990,
27 June 1990).
Republic Act No. 6683 seeks to cover and benefits regular, temporary,
casual and emergency employees who have rendered at least a total of
two (2) consecutive years government service.
Resolution No. 87-104 of the CSC, 21 April 1987, provides:
WHEREAS, pursuant to Executive Order No. 966 dated June 22,
1984, the Civil Service Commission is charged with the function
of determining creditable services for retiring officers and
employees of the national government;
WHEREAS, Section 4 (b) of the same Executive Order No. 966
provides that all previous services by an officer/employee
pursuant to a duly approved appointment to a position in the
Civil Service are considered creditable services, while Section 6
(a) thereof states that services rendered on contractual,
emergency or casual status are non-creditable services;
WHEREAS, there is a need to clarify the aforesaid provisions
inasmuch as some contractual, emergency or casual employment
are covered by contracts or appointments duly approved by the
Commission.
 NOW, therefore, the Commission resolved that services rendered
on contractual, emergency or casual status, irrespective of the
mode or manner of payment therefor shall be considered as
creditable for retirement purposes subject to the following
conditions: (emphasis provided)
1. These services are supported by approved appointments, official
records and/or other competent evidence. Parties/agencies concerned
shall submit the necessary proof of said services;
2. Said services are on full time basis and rendered prior to June 22,
1984, the effectivity date of Executive Order No. 966; and
3. The services for the three (3) years period prior to retirement are
continuous and fulfill the service requirement for retirement.
What substantial differences exist, if any, between casual, emergency,
seasonal, project, co-terminous or contractual personnel? All are
tenurial employees with no fixed term, non-career, and temporary. The
12 May 1989 CSC letter of denial 13 characterized herein petitioner's
employment as co-terminous with the NIA project which in turn was
contractual in nature. The OSG says petitioner's status is co-terminous
with the Project. CSC Memorandum Circular No. 11, series of 1991 (5
April 1991) characterizes the status of a co-terminous employee —
(3) Co-terminous status shall be issued to a person whose
entrance in the service is characterized by confidentiality by the
appointing authority or that which is subject to his pleasure or co-
existent with his tenure.
The foregoing status (co-terminous) may be further classified into the
following:
a) co-terminous with the project — When the appointment is co-
existent with the duration of a particular project for which purpose
employment was made or subject to the availability of funds for the
same;
b) co-terminous with the appointing authority — when
appointment is co-existent with the tenure of the appointing authority.
100
c) co-terminous with the incumbent — when appointment is co-
existent with the appointee, in that after the resignation, separation or
termination of the services of the incumbent the position shall be
deemed automatically abolished; and
d) co-terminous with a specific period, e.g. "co-terminous for a
period of 3 years" — the appointment is for a specific period and upon
expiration thereof, the position is deemed abolished.
It is stressed, however, that in the last two classifications (c) and (d),
what is termed co-terminous is the position, and not the appointee-
employee. Further, in (c) the security of tenure of the appointee is
guaranteed during his incumbency; in (d) the security of tenure is
limited to a specific period.
A co-terminous employee is a non-career civil servant, like casual and
emergency employees. We see no solid reason why the latter are
extended benefits under the Early Retirement Law but the former are
not. It will be noted that Rep. Act No. 6683 expressly extends its
benefits for early retirement to regular, temporary, casual and
emergency employees. But specifically excluded from the benefits are
uniformed personnel of the AFP including those of the PC-INP. It can
be argued that, expressio unius est exclusio alterius. The legislature
would not have made a specific enumeration in a statute had not the
intention been to restrict its meaning and confine its terms and
benefits to those expressly mentioned 14 or casus omissus pro omisso
habendus est — A person, object or thing omitted from an
enumeration must be held to have been omitted intentionally. 15 Yet
adherence to these legal maxims can result in incongruities and in a
violation of the equal protection clause of the Constitution.
The case of Fegurin, et al. v. NLRC, et al., 16 comes to mind where,
workers belonging to a work pool, hired and re-hired continuously
from one project to another were considered non-project-regular and
permanent employees.
Petitioner Lydia Chua was hired and re-hired in four (4) successive
projects during a span of fifteen (15) years. Although no proof of the
existence of a work pool can be assumed, her service record cannot be
disregarded.
Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall
be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws."
. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal
protection clause applies only to persons or things identically situated
and does not bar a reasonable classification of the subject of
legislation, and a classification is reasonable where (1) it is based on
substantial distinctions which make real differences; (2) these are
germane to the purpose of the law; (3) the classification applies not
only to present conditions but also to future conditions which are
substantially identical to those of the present; (4) the classification
applies only to those who belong to the same class. 17
Applying the criteria set forth above, the Early Retirement Law would
violate the equal protection clause were we to sustain respondents'
submission that the benefits of said law are to be denied a class of
government employees who are similarly situated as those covered by
said law. The maxim of Expressio unius est exclusio alterius should not
be the applicable maxim in this case but the doctrine of necessary
implication which holds that:
No statute can be enacted that can provide all the details involved in
its application. There is always an omission that may not meet a
particular situation. What is thought, at the time of enactment, to be
an all-embracing legislation may be inadequate to provide for the
unfolding events of the future. So-called gaps in the law develop as
the law is enforced. One of the rules of statutory construction used to
fill in the gap is the doctrine of necessary implication. The doctrine
states that what is implied in a statute is as much a part thereof as that
which is expressed. Every statute is understood, by implication, to
contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or
jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. Ex
necessitate legis. And every statutory grant of power, right or privilege
is deemed to include all incidental power, right or privilege. This is so
101
because the greater includes the lesser, expressed in the Maxim, in eo
plus sit, simper inest et minus. 18
During the sponsorship speech of Congressman Dragon (re: Early
Retirement Law), in response to Congressman Dimaporo's
interpellation on coverage of state university employees who are
extended appointments for one (1) year, renewable for two (2) or
three (3) years, 19 he explained:
This Bill covers only those who would like to go on early retirement
and voluntary separation. It is irrespective of the actual status or
nature of the appointment one received, but if he opts to retire under
this, then he is covered.
It will be noted that, presently Pending in Congress, is House Bill No.
33399 (a proposal to extend the scope of the Early Retirement Law).
Its wording supports the submission that Rep. Act No. 6683 indeed
overlooked a qualified group of civil servants. Sec. 3 of said House bill,
on coverage of early retirement, would provide:
Sec. 3. Coverage. — It will cover all employees of the national
government, including government-owned or controlled
corporations, as well as the personnel of all local government
units. The benefits authorized under this Act shall apply to all
regular, temporary, casual, emergency and contractual
employees, regardless of age, who have rendered at least a total
of two (2) consecutive years government service as of the date of
separation. The term "contractual employees" as used in this Act
does not include experts and consultants hired by agencies for a
limited period to perform specific activities or services with
definite expected output.
Uniformed personnel of the Armed Forces of the Philippines, including
those of the PC-INP are excluded from the coverage of this Act.
(emphasis supplied)
The objective of the Early Retirement or Voluntary Separation Law is
to trim the bureaucracy, hence, vacated positions are deemed
abolished upon early/voluntary retirement of their occupants. Will the
inclusion of co-terminous personnel (like the petitioner) defeat such
objective? In their case, upon termination of the project and retirement benefits under Rep. Act No. 6683 is unreasonable,
separation of the project personnel from the service, the term of unjustified, and oppressive, as petitioner had filed an application for
employment is considered expired, the office functus officio. Casual, voluntary retirement within a reasonable period and she is entitled to
temporary and contractual personnel serve for shorter periods, and the benefits of said law. While the application was filed after
yet, they only have to establish two (2) years of continuous service to expiration of her term, we can give allowance for the fact that she
qualify. This, incidentally, negates the OSG's argument that co- originally filed the application on her own without the assistance of
terminous or project employment is inherently short-lived, temporary counsel. In the interest of substantial justice, her application must be
and transient, whereas, retirement presupposes employment for a long granted; after all she served the government not only for two (2) years
period. Here, violation of the equal protection clause of the — the minimum requirement under the law but for almost fifteen (15)
Constitution becomes glaring because casuals are not even in the years in four (4) successive governmental projects.
plantilla, and yet, they are entitled to the benefits of early retirement.
How can the objective of the Early Retirement Law of trimming the WHEREFORE, the petition is GRANTED.
bureaucracy be achieved by granting early retirement benefits to a
group of employees (casual) without plantilla positions? There would, Let this case be remanded to the CSC-NIA for a favorable disposition
in such a case, be no abolition of permanent positions or streamlining of petitioner's application for early retirement benefits under Rep. Act
of functions; it would merely be a removal of excess personnel; but No. 6683, in accordance with the pronouncements in this decision.
the positions remain, and future appointments can be made thereto.
SO ORDERED.
Co-terminous or project personnel, on the other hand, who have
rendered years of continuous service should be included in the
coverage of the Early Retirement Law, as long as they file their
application prior to the expiration of their term, and as long as they
comply with CSC regulations promulgated for such purpose. In this
connection, Memorandum Circular No. 14, Series of 1990 (5 March
1990) implementing Rep. Act No. 6850, 20 requires, as a condition to
qualify for the grant of eligibility, an aggregate or total of seven (7)
years of government service which need not be continuous, in the
career or non-career service, whether appointive, elective, casual,
emergency, seasonal, contractual or co-terminous including military
and police service, as evaluated and confirmed by the Civil Service
Commission. 21 A similar regulation should be promulgated for the
inclusion in Rep. Act No. 6683 of co-terminous personnel who survive
the test of time. This would be in keeping with the coverage of "all
social legislations enacted to promote the physical and mental well-
being of public servants"22 After all, co-terminous personnel, are also
obligated to the government for GSIS contributions, medicare and
income tax payments, with the general disadvantage of transience.

In fine, the Court believes, and so holds, that the denial by the
respondents NIA and CSC of petitioner's application for early
102
 G.R. No. L-37251 August 31, 1981
CITY OF MANILA and CITY TREASURER, petitioners-appellants,
vs.
JUDGE AMADOR E. GOMEZ of the Court of First Instance of
Manila and ESSO PHILIPPINES, INC., respondents-appellees.
AQUINO, J.:
This case is about the legality of the additional one-half percent (½%)
realty tax imposed by the City of Manila.
Section 64 of the Revised Charter of Manila, Republic Act No. 409,
which took effect on June 18, 1949, fixes the annual realty tax at one
and one-half percent (1-½ %).
On the other hand, section 4 of the Special Education Fund Law,
Republic Act No. 5447, which took effect on January 1, 1969, imposed
"an annual additional tax of one per centum on the assessed value of
real property in addition to the real property tax regularly levied
thereon under existing laws" but "the total real property tax shall not
exceed a maximum of three per centrum.
That maximum limit gave the municipal board of Manila the Idea of
fixing the realty tax at three percent. So, by means of Ordinance No.
7125, approved by the city mayor on December 26, 1971 and effective
beginning the third quarter of 1972, the board imposed an additional
one-half percent realty tax. The ordinance reads:
SECTION 1. An additional annual realty tax of one-half
percent (1/2%), or in short a total of three percent (3%) realty
tax (1-½% pursuant to the Revised Charter of Manila; 1% per
Republic Act No. 5447; and ½% per this Ordinance) on the
assessed value ... is hereby levied and imposed.
Esso Philippines, Inc. paid under protest the sum of P16,092.69 as
additional one-half percent realty tax for the third quarter of 1972 on
its land and machineries located in Manila.
103
On November 9, 1972, Esso filed a complaint in the Court of First
Instance of Manila for the recovery of the said amount. It contended
that the additional one-half percent tax is void because it is not
authorized by the city charter nor by any law (Civil Case No. 88827).
After hearing, the trial court declared the tax ordinance void and
ordered the city treasurer of Manila to refund to Esso the said tax. The
City of Manila and its treasurer appealed to this Court under Republic
Act No. 5440 (which superseded Rule 42 of the Rules of Court).
The only issue is the validity of the tax ordinance or the legality of the
additional one-half percent realty tax.
The petitioners in their manifestation of March 17, 1981 averred that
the said tax ordinance is still in force; that Ordinance No. 7566, which
was enacted on September 10, 1974, imposed a two percent tax on
commercial real properties (like the real properties of Esso and that
that two percent tax plus the one percent tax under the Special
Education Fund Law gives a total of three percent realty tax on
commercial properties.
Esso Philippines, Inc., now Petrophil Corporation, in its manifestation
of March 2, 1981, revealed that up to this time it has been paying the
additional one-half percent tax and that from 1975 to 1980 it paid the
total sum of P4,206,240.71 as three percent tax on its real properties.
In this connection, it is relevant to note that section 39(2) of the Real
Property Tax Code, Presidential Decree No. 464, which took effect on
June 1, 1974, provides that a city council may, by ordinance, impose a
realty tax "of not less than one half of one percent but not more than
two percent of the assessed value of real property".
Section 41 of the said Code reaffirms the one percent tax on real
property for the Special Education Fund in addition to the basic two
percent realty tax.
So, there is no question now that the additional one-half percent
realty tax is valid under the Real Property Tax Code. What is in
controversy is the legality of the additional one-half percent realty tax
for the two-year period from the third quarter of 1972 up to the
second quarter of 1974.
We hold that the doctrine of implications in statutory construction
sustains the City of Manila's contention that the additional one-half
percent realty tax is sanctioned by the provision in section 4 of the
Special Education Fund Law that "the total real property tax shall not
exceed a maximum of three per centum.
and the later law, the Special Education Fund Law, provides for three
percent as the maximum realty tax of which one percent would be
earmarked for the education fund.
The unavoidable inference is that the later law authorized the
imposition of an additional one-half percent realty tax since the
contingency referred to by the complaining taxpayer would not arise
in the City of Manila.

The doctrine of implications means that "that which is plainly implied
in the language of a statute is as much a part of it as that which is
expressed" (In re McCulloch Dick, 38 Phil. 41, 45, 90; 82 C.J.S. 632,
73 Am Jur 2nd 404).
While the 1949 Revised Charter of Manila fixed the realty tax at one
and a half percent, on the other hand, the 1968 Special Education
Fund Law definitively fixed three percent as the maximum real
property tax of which one percent would accrue to the Special
Education Fund.
The obvious implication is that an additional one-half percent tax
could be imposed by municipal corporations. Inferentially, that law
fixed at two percent the realty tax that would accrue to a city or
municipality.
And the fact that the 1974 Real Property Tax Code specifically fixes
the real property tax at two percent confirms the prior intention of the
lawmaker to impose two percent as the realty tax proper. That was
also the avowed intention of the questioned ordinance.
It is true, as contended by the taxpayer, that the power of a municipal
corporation to levy a tax should be expressly granted and should not
be merely inferred. But in this case, the power to impose a realty tax is
not controverted. What is disputed is the amount thereof, whether one
and one-half percent only or two percent. (See sec. 2 of Rep. Act No.
2264.)
As repeatedly observed, section 4 of the Special Education Fund Law,
as confirmed by the Real Property Tax Code, in prescribing a total
realty tax of three percent impliedly authorizes the augmentation by
one-half percent of the pre-existing one and one- half percent realty
tax.
WHEREFORE, the decision of the trial court is reversed and set aside.
The complaint of Esso Philippines, Inc. for recovery of the realty tax
paid under protest is dismissed. No costs.
SO ORDERED.

In invalidating the ordinance, the trial court upheld the view of Esso
Philippines, Inc, that the Special Education Fund Law refers to a
contingency where the application of the additional one percent realty
tax would have the effect of raising the total realty tax to more than
three percent and that it cannot be construed as an authority to
impose an additional realty tax beyond the one percent fixed by the
said law.

At first glance, that appears to be a specious or reasonable contention.

But the fact remains that the city charter fixed the realty tax at 1-½%
104
 G.R. No. L-14129 August 30, 1962
PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
GUILLERMO MANANTAN, defendant-appellee.
RESOLUTION
REGALA, J.:
This resolution refers to a motion for reconsideration filed by the
counsel for defendant-appellee, Guillermo Manantan.
Defendant-appellee does not dispute the correctness of this Court's
ruling in the main case. He concedes that a justice of the peace is
covered by the prohibition of Section 54, Revised Election Code.
However, he takes exception to the dispositive portion of this Court's
ruling promulgated on July 31, 1962, which reads:
For the above reasons, the order of dismissal entered by the trial court
should be set aside and this case is remanded for trial on the merits.
It is now urged by the defendant-appellee that the ultimate effect of
remanding the case to the lower court for trial on the merits is to place
him twice in jeopardy of being tried for the same offense. He calls the
attention of this Court to the fact that when the charge against him
was dismissed by the lower court, jeopardy had already attached to his
person. To support his claim, he cites the case of People vs. Labatete,
G.R. No. L-12917, April 27, 1960.
Defendant-appellee's plea of double jeopardy should be rejected. The
accused cannot now invoke the defense of double jeopardy. When the
government appealed to this Court the order of dismissal, defendant
Manantan could have raised that issue by way of resisting the appeal
of the state. Then again, when defendant-appellee filed his brief, he
could have argued therein his present plea of double jeopardy. Yet, on
neither occasion did he do so. He must, therefore, be deemed to have
waived his constitutional right thereunder. This is in accord with this
Court's ruling in the cases of People vs. Rosalina Casiano, G.R. No.
105
L-15309, February 16, 1961 and People vs. Pinuila, G.R. No. L-11374,
May 30, 1958, hereunder quoted:
. . . defendant herein has filed a brief in which she limited herself to a
discussion of the merits of the appeal. Thus, she not only failed to
question, in her brief, either expressly or impliedly, the right of the
prosecution to interpose the present appeal, but also, conceded in
effect the existence of such right. She should be deemed, therefore, to
have waived her aforementioned constitutional immunity.1äwphï1.ñët
It is true that in People vs. Hernandez (49 O.G. 5342), People vs.
Ferrer, L-9072 (October 23, 1956), People vs. Bao, L-12102
(September 29, 1959) and People vs. Golez, L-14160, we dismissed
the appeal taken by the Government from a decision or order of a
lower court, despite defendant's failure to object thereto. However, the
defendants in those cases, unlike the defendant herein, did not file any
brief. Hence, they had performed no affirmative act from which a
waiver could be implied. (People vs. Casiano, supra).
In his appeal brief, appellant's counsel does not raise this question of
double jeopardy, confining himself as he does, to the discussion of the
evidence in the record, contending that the guilt of the appellant has
not been proven beyond reasonable doubt. One aspect of this case as
regards double jeopardy is that defense may be waived, and, that
failure to urge it in the appeal may be regarded as a waiver of said
defense of double jeopardy.(People vs. Pinuila, supra).
There are other grounds raised by the defendant-appellee in this
motion for reconsideration. The Court, however, does not believe that
they were well taken.
FOR THE ABOVE REASONS, the motion for reconsideration filed in
this case, is, as it is hereby, denied.
G.R. No. L-33140 October 23, 1978
J. M. TUASON & CO., INC., JOSE M. TUASON, NICASIO A.
TUASON, TERESA TUASON, CELSO S. TUASON and SEVERO A.
TUASON, petitioners,
vs.
HON. HERMINIO C. MARIANO, Presiding Judge of the Court of
First Instance of Rizal MANUELA AQUIAL, MARIA AQUIAL,
Spouses JOSE M. CORDOVA and SATURNINA C. CORDOVA,
respondents.
AQUINO, J.:
This is another litigation regarding the validity of the much
controverted Original Certificate of Title No. 735 covering the
Santa Mesa and D Estates of the Tuason mayorazgo or Entail with
areas of 877 (879) and 1,625 hectares, respectively (Barrette vs.
Tuason, 50 Phil. 888; Benin case, infra).
On October 1, 1965, Manuela Aquial and Maria Aquial filed a
complaint in forma pauperis in the Court of First Instance of Rizal
Pasig Branch X, wherein they prayed that they be declared the
owners of a parcel of land located at Balara, Marikina, Rizal (now
Quezon City) and bounded on the north by Sapang Mapalad, on
the south by the land of Eladio, Tiburcio on the east by Sapang
Kolotkolotan, and on the west by Sapang Kuliat The land, which
has an area of three hundred eighty-three quiñones was allegedly
acquired by their father by means of a Spanish title issued to him
on May 10, 1877 (Civil Case No. 8943).
They alleged that sometime in 1960, or after J. M. Tuason & Co.,
Inc. had illegally entered upon that land, they discovered that it
had been fraudulently or erroneously included in OCT No. 735 of
the Registry of Deeds of Rizal and that it was registered in the
names of defendants Mariano, Teresa, Juan, Demetrio and Augusta
all surnamed Tuason pursuant to a decree issued on July 6. 1914 in
Case No. 7681 of the Court of Land Registration.
106
They further alleged that transfer certificates of title, derived from
OCT No. 735, were issued to defendants J. M. Tuason & Co., Inc.,
University of the Philippines and National Waterworks and
Sewerage Authority (Nawasa) which leased a portion of its land to
defendant Capitol Golf Club.
Plaintiffs Aquial prayed that OCT No. 735 and the titles derived
therefrom be declared void due to certain irregularities in the land
registration proceeding. They asked for damages.
Defendant J.M. Tuason & Co., Inc. filed a motion to dismiss on the
grounds of lack of jurisdiction, improper venue, prescription, laches
and prior judgment. The plaintiffs opposed that motion. The lower
court denied it. The grounds of the motion to dismiss were pleaded
as affirmative defenses in the answer of defendants Tuason and J.
M. Tuason & Co., Inc. They insisted that a preliminary hearing be
held on those defenses.
On January 25, 1967, the spouses Jose M. Cordova and Saturnina
C. Cordova, who had bought eleven hectares of the disputed land
from the plaintiffs, were allowed to intervene in the case.
On September 5, 1970, the lower court issued an order requiring
the parties the Register of Deeds of Rizal to produce in court on
October 16, 1970 OCT No. 735 and certain transfer certificates of
title derived from that first or basic title. Later, the court required
the production in court of the plan of the land covered by OCT No.
735 allegedly for the purpose of determining whether the lands
claimed by the plaintiffs and the intervenors are included therein.
On February 11, 1971, the Tuason and J. M. Tuason & Co., Inc.
filed the instant civil actions of certiorari and prohibition praying,
inter alia, that the trial court be ordered to dismiss the complaint
and enjoined from proceeding in the said case. After the petitioners
had filed the proper bond, a writ of preliminary injunction was
issued. Respondents Aquial and Cordova answered the petition.
The parties, except the Aquials, filed memoranda in lieu of oral
argument.
The issue is whether OCT No. 735 and the titles derived therefrom
can be questioned at this late hour by respondents Aquial and
Cordova. The supposed irregularities in the land registration
proceeding, which led to the issuance of the decree upon which
OCT. No. 735 was based, are the same issues raised in Civil Cases
Nos. 3621, 3622 and 3623 of the lower court. The 1965 decision of
Judge Eulogio Mencias in those cases, in validating OCT No. 735, is
annexed to the complaint of the Aquials. It is cited by them to
support their support their action and it might have encouraged
them to ventilate their action in court.
On appeal to this Court, that decision was reversed and the validity
of OCT No. 735 and the titles derived therefrom was once more
upheld. (Benin vs. Tuason, L-26127, Alcantara vs. Tuason, L-26128
and Pili vs. Tuason, L-26129, all decided on June 28, 1974, 57
SCRA 531).
Considering the governing principle of stare decisis et non quieta
movere (follow past precedents and do not disturb what has been
settled) it becomes evident that respondents Aquial and Cordova
cannot maintain their action in Civil Case No. 8943 without
eroding the long settled holding of the courts that OCT No. 735 is
valid and no longer open to attack.
It is against public policy that matters already decided on the
merits be relitigated again and again, consuming the court's time
and energies at the expense of other litigants: Interest rei publicae
ut finis sit litium." (Varsity Hills, Inc. vs. Navarro, supra).
Finding the petition for certiorari and prohibition to be
meritorious, the trial court is directed to dismiss Civil Case No.
8943 with prejudice and without costs. No costs.
SO ORDERED.

The ruling in the Benin, Alcantara and Pili cases was applied in
Mara, Inc. vs. Estrella, L-40511, July 25, 1975, 65 SCRA 471. That
ruling is simply a reiteration or confirmation of the holding in the
following cases directly or incidentally sustaining OCT No. 735:
Bank of the P. I. vs. Acuña, 59 Phil. 183; Tiburcio vs. PHHC, 106
Phil. 447; Galvez and Tiburcio vs. Tuason y de la Paz, 119 Phil.
612; Alcantara vs. Tuason, 92 Phil. 796; Santiago vs. J. M. Tuason
& Co., Inc. 110 Phil. 16; J. M. Tuason & Co., Inc. vs. Bolaños, 95
Phil. 106; J. M. Tuason & Co., Inc. vs. Santiago, 99 Phil. 615; J. M.
Tuason & Co., Inc. vs. De Guzman, 99 Phil. 281; J. M. Tuason &
Co., Inc. vs. Aguirre, 117 Phil. 110; J. M. Tuason & Co., Inc. vs.
Macalindong, 116 Phil. 1227; J. M. Tuason & Co., Inc. vs.
Magdangal, 114 Phil. 42; Varsity Hills, Inc. vs. Navarro, L-30889,
February 29, 1972, 43 SCRA 503, and People's Homesite and
Housing Corporation vs. Mencias, L-24114, August 16, 1967, 20
SCRA 1031.

107
 G.R. No. 210164, August 18, 2015 (CoC) for the mayoralty post of Kauswagan, Lanao del Norte for the
May 10, 2010 national and local elections.

ROMMEL C. ARNADO, Petitioner, v. COMMISSION ON ELECTIONS 

AND FLORANTE CAPITAN, Respondents.
 Linog C. Balua (Balua), another mayoralty candidate, however, filed a
petition to disqualify Arnado and/or to cancel his CoC on the ground,
among others, that Arnado remained a US citizen because he
DECISION continued to use his US passport for entry to and exit from the
Philippines after executing aforesaid Affidavit of Renunciation.

DEL CASTILLO, J.:


Only natural-born Filipinos who owe total and undivided allegiance to While Balua's petition remained pending, the May 10, 2010 elections
the Republic of the Philippines could run for and hold elective public proceeded where Arnado garnered the highest number of votes for the
office.
 mayoralty post of Kauswagan. He was proclaimed the winning

 candidate.

Before this Court is a Petition for  Certiorari1  filed under Rule 64 in 

relation to Rule 65 of the Rules of Court assailing the  Per On October 5, 2010, the Comelec First Division issued a Resolution
Curiam  Resolution2  dated December 9, 2013 of respondent holding that Arnado's continued use of his US passport effectively
Commission on Elections (Comelec)  En Banc  in SPA No. 13-309 negated his April 3, 2009 Affidavit of Renunciation. Thus, he was
(DC), which affirmed the Resolution3 dated September 6, 2013 of the disqualified to run for public office for failure to comply with the
Comelec Second Division. The Comelec, relying on our ruling requirements of RA 9225. The Comelec First Division accordingly
in  Maquiling v. Commission on Elections,4  disqualified petitioner nullified his proclamation and held that the rule on succession should
Rommel C. Arnado (Arnado) from running in the May 13, 2013 be followed.

elections, set aside his proclamation as elected mayor of Kauswagan, 

Lanao del Norte, and declared respondent Florante T. Capitan Arnado moved for reconsideration. In the meantime, Casan Macode
(Capitan) as the duly elected mayor of said municipality.
 Maquiling (Maquiling), another mayoralty candidate who garnered

 the second highest number of votes, intervened in the case. He argued
Factual Antecedents
 that the Comelec First Division erred in applying the rule on

 succession.

Petitioner Arnado is a natural-born Filipino citizen who lost his 

Philippine citizenship after he was naturalized as citizen of the United On February 2, 2011, the Comelec  En Banc  rendered a Resolution
States of America (USA). Subsequently, and in preparation for his reversing the ruling of the Comelec First Division. It held that Arnado's
plans to run for public office in the Philippines, Arnado applied for use of his US passport did not operate to revert his status to dual
repatriation under Republic Act No. 92255  (RA 9225) before the citizenship. The Comelec  En Banc  found merit in Arnado's
Consul General of the Philippines in San Franciso, USA. He took an explanation that he continued to use his US passport because he did
Oath of Allegiance to the Republic of the Philippines on July 10, 2008 not yet know that he had been issued a Philippine passport at the time
and, on even date, an Order of Approval of Citizenship Retention and of the relevant foreign trips. The Comelec En Banc further noted that,
Re acquisition was issued in his favor. On April 3, 2009, Arnado after receiving his Philippine passport, Arnado used the same for his
executed an Affidavit of Renunciation of his foreign citizenship.
 subsequent trips.


 

On November 30, 2009, Arnado filed his Certificate of Candidacy Maquiling then sought recourse to this Court by filing a petition
docketed as G.R No. 195649.

108


While G.R No. 195649 was pending, the period for the filing of CoCs
for local elective officials for the May 13, 2013 elections officially
began. On October 1, 2012, Arnado filed his CoC6  for the same
position. Respondent Capitan also filed his CoC for the mayoralty post
of Kauswagan.
 Arnado's "Affidavit of Renunciation Dated April3, 2009."8
On April 16, 2013, this Court rendered its Decision in  Maquiling.
Voting 10-5, it annulled and set aside the Comelec En Banc's February
2, 2011 Resolution, disqualified Arnado from running for elective
position, and declared Maquiling as the duly elected mayor of
Kauswagan, Lanao Del Norte in the May 10, 2010 elections. In so
ruling, the majority of the Members of the Court opined that in his
subsequent use of his US passport, Arnado effectively disavowed or
recalled his April 3, 2009 Affidavit of Renunciation. Thus:
We agree with the pronouncement of the COMELEC First Division that
"Arnado's act of consistently using his US passport effectively negated
his "Affidavit of Renunciation." Tills does not mean that he failed to
comply with the twin requirements under R.A. No. 9225, for he in fact
did. It was after complying with the requirements that he perfonned
positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.  proclamation is void and without any legal effect.
The purpose of the Local Government Code in disqualifying dual
citizens from running for any elective public office would be thwarted
if we were to allow a person who has earlier renounced his foreign
citizenship, but who subsequently represents himself as a foreign
citizen, to hold any public office.
xxxx
We therefore hold that Arnado, by using his US passport after
renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May 2010
elections.7
109
The issuance of this Court's April 16, 2013 Decision sets the stage for
the present controversy.
On May 9, 2013 or shortly after the Court issued its Decision
in  Maquiling, Arnado executed an Affidavit Affirming Rommel C.
The following day or on May 10, 2013, Capitan, Arnado's lone rival for
the mayoralty post, filed a Petition9  seeking to disqualify him from
running for municipal mayor of Kauswagan and/or to cancel his CoC
based on the ruling of this Court in Maquiling. The case was docketed
as SPA No. 13-309 (DC) and was raffled to the Comelec's Second
Division. The resolution of said petition was, however, overtaken by
the May 13, 2013 elections where Arnado garnered 8,902 votes (84%
of the total votes cast) while Capitan obtained 1,707 (16% of the total
votes cast) votes only.
On May 14, 2013, Arnado was proclaimed as the winning candidate.
Unfazed, Capitan filed another Petition10  this time seeking to nullify
Arnado's proclamation. He argued that with the April 16, 2013
Decision of this Court in Maquiling, there is no doubt that Arnado is
disqualified from running for any local elective office. Hence, Arnado's
Ruling of the Comelec Second Division
On September 6, 2013, the Comelec Second Division promulgated a
Resolution granting the petition in SPA No. 13-309 (DC) and
disqualify Arnado from running in the May 13, 2013 elections.
Following Maquiling, it ratiocinated that at the time he filed his CoC
on October 1, 2012, Arnado still failed to comply with the requirement
of RA 9225 of making a personal and sworn renunciation of any and
all foreign citizenship. While he executed the April 3, 2009 Affidavit of
Renunciation, the same was deemed withdrawn or recalled when he
subsequently traveled abroad using his US passport, as held
in Maquiling.
The Comelec Second Division also noted that Arnado failed to execute
another Affidavit of Renunciation for purposes of the May 13, 2013
elections. While a May 9, 2013 Affidavit Affirming Rommel C.
Arnado's "Affidavit of Renunciation dated April 3, 2009" was
submitted in evidence, the same would not suffice because it should
have been executed on or before the filing of the CoC on October 1,
2012.
The dispositive portion of the Comelec Second Division's Resolution
reads:
WHEREFORE, premises considered, the instant Petition is granted.
Respondent Rommel Cagoco Arnado is disqualified from running in
the 13 May 2013 National and Local Elections.
SO ORDERED.11
Ruling of the Comelec En Banc
Aggrieved, Arnado filed a Verified Motion for Reconsideration.12  He
argued that the Comelec Second Division erred in
applying Maquiling claiming that the said case is not on all fours with
the present controversy; that Capitan's Petition was filed beyond the
25-day reglementary period reckoned from the filing of the CoC
sought to be cancelled; and, that the Comelec must uphold the
sovereign will of the people of Kauswagan who expressed, thru the
ballots, their overwhelming support for him as their mayor. Arnado
prayed that the Comelec Second Division's September 6, 2013
Resolution be reversed and that he be declared as eligible to run for
mayor of Kauswagan.
On December 9, 2013, the Comelec  En Banc  affirmed the ruling of
the Comelec Second Division. It accordingly annulled the
proclamation of Arnado and declared Capitan as the duly elected
mayor of Kauswagan. The dispositive portion of the Comelec  En
Banc's Resolution reads:
WHEREFORE, premises considered, the instant motion for
reconsideration is hereby DISMISSED. The Proclamation of
Private Respondent Rommel C. Arnado as the duly elected
mayor of Kauswagan, Lanao del Norte is hereby ANNULLED
and SET ASIDE. FLORANTE T. CAPITAN is hereby DECLARED
110
the duly elected Mayor of Kauswagan, Lanao del Norte inthe
May 13, 2013 Elections. SO ORDERED.13
Hence, on December 16, 2013 Arnado filed the instant Petition with
ancillary prayer for injunctive relief to maintain the status  quo ante.
On December
26, 2013, Arnado filed an Urgent Motion for Issuance of Status Quo
Ante Order or Temporary Restraining Order14 in view of the issuance
by the Comelec  En Banc  of a Writ of Execution to implement its
December 9, 2013 Resolution.
On January 14, 2014, this Court issued a Resolution15  requiring the
respondents to file their respective comments on the petition. In the
same Resolution, this Court granted Arnado's ancillary relief for
temporary restraining order.
Capitan thus filed an Urgent Motion to Lift and/or Dissolve Temporary
Restraining Order dated January 14, 2014,16 contending that the acts
sought to be restrained by Arnado are already  fait accompli.  He
alleged that the Comelec  En Banc  had already issued a Writ of
Execution17  and pursuant thereto a Special Municipal Board of
Canvassers was convened. It proclaimed him to be the duly elected
mayor of Kauswagan and on January 2, 2014 he took his oath of
office. Since then, he has assumed and performed the duties and
functions of his office.
In a Resolution18  dated February 25, 2014, this Court ordered the
issuance of a Status  Quo Ante  Order directing the parties to allow
Arnado to continue performing his functions as mayor of Kauswagan
pending resolution of this case.
Issues
In support of his Petition, Arnado raises the following issues:
I
WHETHER x x x THE COMELEC EN BANC AND 2ND  DIVISION
VIOLATED PROCEDURAL DUE PROCESS AND COMMITTED GRAVE
ABUSE OF DISCRETION IN FAILING TO DISMISS THE PETITIONS OF
RESPONDENT CAPITAN ON THE GROUND OF FORUM-SHOPPING
AND/OR LATE FILING, ETC.
II
WHETHER x x x THE COMELEC EN BANC VIOLATED DUE PROCESS
AND COMMITTED GRAVE ABUSE OF DISCRETION BY ALLOWING
COM. ELIAS YUSOPH TO REVIEW THE DECISION HE WROTE FOR
THE 2ND DIVISION.
III
WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN DISENFRANCHISING 84% OF THE VOTERS OF
KAUSWAGAN IN THE MAY 2013 ELECTIONS.
IV
WHETHER x x x THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION IN DISQUALIFYING PETITIONER WHO HAS FULLY
COMPLIED WITH THE REQUIREMENTS OF RA 9225 BEFORE THE
FILING OF HIS COC ON OCTOBER 1, 2012.19
Arnado claims that the Comelec committed grave abuse of discretion
and violated his right to procedural due process in not dismissing
Capitan's Petition in SPA No. 13-309 (DC). He avers that Capitan is
guilty of forum-shopping because the latter subsequently filed a
similar case docketed as SPC No. 13-019. In addition, SPA No. 13-309
(DC) was filed beyond the 25-day prescriptive period reckoned from
the time of the filing of his CoC on October 1, 2012.
Arnado likewise claims that the proceeding before the Comelec is
peppered with procedural infirmities. He asserts that the Comelec
violated its own rules in deciding SPA No. 13-309 (DC) without first
resolving Capitan's motion to consolidate; that SPA No. 13-309 (DC)
was not set for trial and no hearing for the reception of evidence was
ever conducted; and, that the Comelec did not follow its own rules
requiring the issuance of a notice of promulgation of resolutions.
111
Arnado further claims that the Comelec En Banc not only committed
grave abuse of discretion but also violated his constitutional right to
due process when it allowed Commissioner Elias R. Yusoph
(Commissioner Yusoph) to participate in the review of the Decision he
penned for the Second Division. Furthermore, the Comelec  En
Banc  committed grave abuse of discretion when it disqualified him
from running in the May 13, 2013 elections, thereby disenfranchising
84% of the voters of Kauswagan who all voted for him.
Finally, Arnado avers that further inquiry and examination of the
notarial register of his former counsel, Atty. Thomas Dean M. Quijano,
revealed that he executed an Affidavit of Renunciation with Oath of
Allegiance20  on November 30, 2009. Hence, at the time he filed his
CoC on October 1, 2012, he is a citizen of the Philippines who does
not owe allegiance to any other country and, therefore, is qualified to
run for mayor of Kauswagan in the May 13, 2013 elections.
Our Ruling
The Petition is devoid of merit.
Petition for certiorari is limited to the 
determination of whether the respondent
tribunal acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
In a petition for certiorari under Rule 64 in relation to Rule 65 of the
Rules of Court, the primordial issue to be resolved is whether the
respondent tribunal committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed resolution. And as
a matter of policy, this Court will not interfere with the resolutions of
the Comelec unless it is shown that it had committed grave abuse of
discretion.21 Thus, in the absence of grave abuse of discretion, a Rule
64 petition will not prosper. Jurisprudence, on the other hand, defines
grave abuse of discretion as the "capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction."22  "Mere abuse of
discretion is not enough; it must be grave."23  Grave abuse of
discretion has likewise been defined as an act done contrary to the
Constitution, the law or jurisprudence.24
In this case, and as will be discussed below, there is no showing that
the Comelec En Banc acted capriciously or whimsically in issuing its
December 9, 2013 Resolution. Neither did it act contrary to law or
jurisprudence.
Arnado's allegations that Capitan
violated the rule against forumshopping 
and that the latter's petition in
SPA No.13-309(DC) was filed late,
unsubstantiated and erroneous.
There is forum-shopping when two or more actions or proceedings,
founded on the same cause, are instituted by a party on the
supposition that one or the other court would make a favorable
disposition.25cIt exists when the elements of  litis pendentia  are
present or where a final judgment in one case will amount to  res
judicata  in the other.26  Thus, there is forum-shopping when in both
actions there exist: (1) identity of parties, or at least such parties as
would represent the same interests in both actions; (2) identity of
rights asserted and relief prayed for, the relief being founded on the
same facts; and (3) the identity of the two preceding particulars is
such that any judgment rendered in the other action will, regardless of
which party is successful, amount to res judicata in the action under
consideration.27
Here, Arnado failed to substantiate his claim of forum-shopping. He
merely made a general averment that in resolving the petitions of
Capitan in SPA No. 13-309 (OC) and SPC No. 13-019, the Comelec En
Banc, as well as its Second Division, failed to comply with this Court's
Revised Circular No. 28-91,28without demonstrating how forum-
shopping was supposed to be present. He has not shown that the
petitions in SPA No. 13-309 (DC) and SPC No. 13-019 involved the
same parties, issues, and reliefs. In fact, Arnado did not even bother to
submit to this Court a copy of the Petition in SPC No. 13-019
(annulment of proclamation case). As the party insisting that Capitan
committed forum-shopping, Arnado bears the burden of establishing
the same. After all, it is settled that he who alleges has the burden of
proving it; mere allegation is not sufficient.29
Besides, and as correctly observed by the Solicitor General, the parties
in SPA No. 13-309 (DC) and SPC No. 13-019 are not the same. In the
112
first case, the parties are only Capitan and Arnado. In the second case,
the Municipal Board of Canvassers of Kauswagan, Lanao del Norte is
impleaded as respondent. There is also dissimilitude in the reliefs
sought. The former case sought to disqualify Arnado and/or to cancel
his CoC while the latter case prayed for the annulment of Arnado's
proclamation as mayor of Kauswagan.
With regard to the alleged tardiness in the filing of Capitan's Petition
in SPA No. 13-309 (DC), it appears that Arnado either failed to grasp
the import of Capitan's allegations therein or he made a deliberate
partial misrepresentation in stating that the same is one for
cancellation of CoC. A copy30  thereof annexed to Arnado's herein
petition states that it is a petition "to disqualify and/or cancel the
certificate of candidacy" of Arnado. The allegations therein state in no
uncertain terms that it is one for disqualification based on Arnado's
failure to comply with the requisites of RA 9225 and on the ruling of
this Court in  Maquiling. Thus, the Comelec Second Division
appropriately treated it as a petition for disqualification with the
alternative prayer to cancel Arnado's CoC. It is elementary that the
nature of the action is determined by the allegations in the petition.31c
Under Section 3, Rule 25 of the Comelec Rules of Procedure,32  a
petition for disqualification should be filed "any day after the last day
for filing of certificates of candidacy  but not later than the date of
proclamation." Here, Arnado was proclaimed as the winning candidate
on May 14, 2013.33  Thus, the petition in SPA No. 13-309 (DC) was
seasonably filed on May 10, 2013.34c
The other procedural lapses allegedly
committed by the Comelec are likewise 
unsubstantiated. Assuming the allegations of 
Arnado to be true, the Comelec did not commit
grave abuse of discretion amounting to lack or
excess of jurisdiction.
Arnado's claim that the Comelec gravely abused its discretion in
deciding SPA No. 13-309 (DC) without first resolving Capitan's motion
to consolidate likewise lacks substantiation. In the first place, Arnado
has not attached a copy of said motion to his petition. This alone is
sufficient ground for the dismissal of his Rule 64 Petition, filed in
relation to Rule 65 of the Rules of Court, for not being accompanied
by pleadings and documents relevant and pertinent thereto.35 Also, it
was Capitan who filed the motion for consolidation. Not being the
movant, Arnado is not in a position to question the alleged inaction of
the Comelec on said motion. And even assuming that he has, by filing
a Verified Motion for Reconsideration with the Comelec En Banc and
subsequently appealing to this Court despite the still unresolved
motion for consolidation, Arnado effectively abandoned said motion
for consolidation. In  Cayago v. Hon. Lina,36it was held that once a
party elevates the case before the appellate tribunal, the appellant is
deemed to have abandoned the unresolved motion which remains
pending with the tribunal of origin. "[I]t is not right for a party who
has affirmed and invoked the jurisdiction of a court in a particular
matter to secure an affirmative relief, to afterwards make a  volte
face and deny that same jurisdiction."37
In any case, under Section 9, Rule 3 of the Comelec Rules of
Procedure, consolidation is only permissive. It is not mandatory.
Section 9 reads:
Sec. 9. Consolidation of Cases.- When an action or proceeding involves a
question of law and fact which is similar to or common with that of
another action or proceeding, the same may be consolidated with the
action or proceeding bearing the lower docket number.
In Muñoz v. Comelec,38 this Court accentuated "that the term 'may' is
indicative of a mere possibility, an opportunity or an option. The
grantee of that opportunity is vested with a right or faculty which he
has the option to exercise. If he chooses to exercise the right, he must
comply with the conditions attached thereto, which in this case
require that the cases to be consolidated must involve similar
questions of law and fact."39 In this case, the consolidation of SPA No.
13-309 (DC) and SPC No. 13-019 does not appear to be necessary. As
earlier mentioned, said cases do not even involve the same parties and
reliefs sought. Hence, no grave abuse of discretion can be attributed to
the Comelec in not consolidating them.
Arnado's protestation that the Comelec violated its own rules when it
decided SPA No. 13-309 (DC) without setting it for trial likewise
deserves scant consideration.  The proceedings in a special action for
113
disqualification of candidates under Rule 25 of the Comelec Rules of
Procedure are summary in nature where a trial type proceeding may
be dispensed with.40  In Diangka v. Comelec,41 this Court held that:
Again, our ingrained jurisprudence is that technical rules of evidence
should not be rigorously applied in administrative proceedings
specially where the law calls for the proceeding to be summary in
character. Pursuant to Section 4, Rule 25 of the 1993 COMELEC Rules
of Procedure, petitions for disqualifications are subject to summary
hearings. In relation thereto, Section 3, Rule 17 of the said Rules
provides that it remains in the sound discretion of the COMELEC
whether clarification questions are to be asked the witnesses-affiants,
and whether the adverse party is to be granted opportunity to cross-
examine said witnesses affiants. Furthermore, when the COMELEC en
banc reviews and evaluates a party's petition, or as in the case at bar, a
party's answer and the supporting papers attached thereto, the same is
tantamount to a fair "hearing" of his case.42
Arnado's claim that the Comelec En Banc
committed grave abuse of discretion and violated 
his right to due process in allowing Commissioner
Yusoph to participate in the deliberation of the assailed
Comelec En Banc Resolution is likewise bereft of
substantiation.
Arnado's claim that Commissioner Yusoph penned both the September
6, 2013 Resolution of the Comelec Second Division and the December
9, 2013 Resolution of the Comelec  En Banc  is not correct. While
Commissioner Yusoph, together with Commissioners Maria Gracia
Cielo M. Padaca and Luie Tito F. Guia, signed said Resolution, there is
nothing therein which would indicate that Commissioner Yusoph was
the writer or the ponente of said Resolution. The September 6, 2013
Resolution of the Comelec Second Division does not state who
the ponente is. The same goes true with the questioned December 9,
2013  Per Curiam  Resolution43  of the Comelec  En Banc. As a  per
curiam  resolution, it was arrived at by the Comelec  En Banc  as a
whole and without any particular  ponente.  Hence, we need not
belabor Arnado's claim of denial of due process as his basis therefor
lacks factual moorings.
Arnado has not yet satisfied the twin  said affidavit. Consequently, at the time he filed his CoC on October 1,
requirements of Section 5(2) of RA 9225 at
the time he filed his CoC for the May 13, 2013
elections; subsequent compliance does not suffice.
Under Section 4(d) of the Local Government Code, a person with
"dual citizenship" is disqualified from running for any elective local
position.  In  Mercado v. Manzano,44  it was clarified that the phrase
"dual citizenship" in said Section 4(d) must be understood as referring
to "dual allegiance.''45  Subsequent, Congress enacted RA 9225
allowing natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization abroad to
reacquire Philippine citizenship and to enjoy full civil and political
rights upon compliance with the requirements of the law. They may
now run for public office in the Philippines provided that they: (1)
meet the qualifications for holding such public office as required by
the Constitution and existing laws; and, (2) make a personal and
sworn renunciation of any and all foreign citizenships before any
public officer authorized to administer an oath46 prior to or at the
time of filing of their CoC. Thus:
Section 5. Civil and Political Rights and Liabilities- Those who retain or
re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet
the qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath;
In the case at bench, the Comelec Second Division, as affirmed by the
Comelec En Banc, ruled that Arnado failed to comply with the second
requisite of Section 5 (2) of RA 9225 because, as held in Maquiling v.
Commission on Elections,47 his April 3, 2009 Affidavit of Renunciation
was deemed withdrawn when he used his US passport after executing
114
2012 for purposes of the May 13, 2013 elections, Arnado had yet to
comply with said second requirement. The Comelec also noted that
while Arnado submitted an affidavit dated May 9, 2013, affirming his
April 3, 2009 Affidavit of Renunciation, the same would not suffice for
having been belatedly executed.
The Comelec  En Banc  did not err, nor did it commit grave abuse of
discretion, in upholding the Resolution of the Comelec Second
Division disqualifying Arnado from running for public office. It is
worth noting that the reason for Arnado's disqualification to run for
public office during the 2010 elections — being a candidate without
total and undivided allegiance to the Republic of the Philippines - still
subsisted when he filed his CoC for the 2013 elections on October 1,
2012. The Comelec  En Banc  merely adhered to the ruling of this
Court in  Maquiling  lest it would be committing grave abuse of
discretion had it departed therefrom.
Moreover, it cannot be validly argued that Arnado should be given the
opportunity to correct the deficiency in his qualification because at the
time this Court promulgated its Decision in  Maquiling  on April 16,
2013, the period for filing the CoC for local elective office had already
lapsed. Or, as Justice Arturo D. Brion puts it in his Dissenting Opinion,
"[t]o the extent that Arnado was denied the chance to submit a
replacement oath of renunciation in 2013, then there was an unfair
and abusive denial of opportunity equivalent to grave abuse of
discretion." Besides, shortly after learning of the Court's April 16, 2013
ruling in  Maquiling  or on May 9, 2013, Arnado substantially
complied therewith by executing an affidavit affirming his April3,
2009 Affidavit of Renunciation.
The ruling in  Maquiling  is indeed novel in the sense that it was the
first case dealing with the effect of the use of a foreign passport on the
qualification to run for public office of a natural-born Filipino citizen
who was naturalized abroad and subsequently availed of the privileges
under RA 9225. It was settled in that case that the use of a foreign
passport amounts to repudiation or recantation of the oath of
renunciation. Yet, despite the issue being novel and of first impression,
plus the fact that Arnado could not have divined the possible adverse
consequences of using his US passport, the Court in  Maquiling  did
not act with leniency or benevolence towards Arnado. Voting 10-5, the
Court ruled that matters dealing with qualifications for public elective
office must be strictly complied with. Otherwise stated, the Court
in  Maquiling  did not consider the novelty of the issue as to excuse
Arnado from strictly complying with the eligibility requirements to run
for public office or to simply allow him to correct the deficiency in his
qualification by submitting another oath of renunciation. Thus, it is
with more reason that in this case, we should similarly require strict
compliance with the qualifications to run for local elective office.
The circumstances surrounding the qualification of Arnado to run for
public office during the May 10, 2010 and May 13, 2013 elections, to
reiterate for emphasis, are the same. Arnado's use of his US passport
in 2009 invalidated his oath of renunciation resulting in his
disqualification to run for mayor of Kauswagan in the 2010 elections.
Since then and up to the time he filed his CoC for the 2013 elections,
Arnado had not cured the defect in his qualification.  Maquiling,
therefore, is binding on and applicable to this case following the
salutary doctrine of stare decisis et non quieta movere, which means to
adhere to precedents, and not to unsettle things which are established.
48  Under the doctrine, "[w]hen the court has once laid down a
principle of law as applicable to a certain state of facts, it will adhere
to that principle and apply it to all future cases where facts are
substantially the same."49  It enjoins adherence to judicial precedents
and bars relitigation of the same issue.50
It may not be amiss to add that as early as 2010, the year when Balua
filed a petition to disqualify him, Arnado has gotten wind that the use
of his US passport might pose a problem to his candidacy. In other
words, when Arnado filed his CoC on October 1, 2012, he was not
totally unaware that the use of his US passport after he had executed
the Affidavit of Renunciation might have an impact on his qualification
and candidacy. In fact, at that time,  Maquiling  had already reached
this Court. But despite the petitions filed against him questioning his
qualification to run for public office in 2010, Arnado filed his CoC on
October 1, 2012 unmindful of any possible legal setbacks in his
candidacy for the 2013 elections and without executing another
Affidavit of Renunciation. In short, the argument that Arnado should
be given the opportunity to correct the deficiency in his CoC
since  Maquiling  was promulgated after the lapse of the period for
115
filing a CoC for the 2013 elections, is totally bereft of merit. Consistent
with our April 16, 2013 ruling in Maquiling, Arnado should be made
to face the consequences of his inaction since he could have remedied
it at the time he filed his CoC on October 1, 2012 or even before that.
There is no law prohibiting him from executing an Affidavit of
Renunciation every election period if only to avert possible questions
about his qualifications.
The alleged November 30, 2009
Affidavit of Renunciation with Oath of
Allegiance cannot be given any
probative weight.
As to the alleged recently discovered November 30, 2009 Affidavit of
Renunciation with Oath of Allegiance, the same is highly suspect. As
correctly pointed out by the Solicitor General, the original or certified
true copy thereof was not presented. In addition, such crucial evidence
sufficient to alter the outcome of the case was never presented before
the Comelec much less in the  Maquiling  case.  Curiously, it only
surfaced for the first time in this petition. In Jacot v. Dal,51 this Court
disallowed the belated presentation of similar evidence on due process
considerations. Thus:
As a rule, no question will be entertained on appeal unless it has been
raised in the proceedings below. Points of law, theories, issues and
arguments not brought to the attention of the lower court,
administrative agency or quasi- judicial body need not be considered
by a reviewing court, as they cannot be raised for the first time at that
late stage. Basic considerations of fairness and due process impel this
rule. Courts have neither the time nor the resources to accommodate
parties who chose to go to trial haphazardly.
Likewise, this Court does not countenance the late submission of
evidence. Petitioner should have offered the Affidavit dated 7 February
2007 during the proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that
"In the absence of any applicable provisions of these Rules, the
pertinent provisions of the Rules of Court in the Philippines shall be
applicable by analogy or in suppletory character and effect." Section
34 of Rule 132 of the Revised Rules of Court categorically enjoins the
admission of evidence not formally presented:
SEC. 34. Offer of evidence.- The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is
offered must be specified.
Since the said Affidavit was not formally offered before the COMELEC,
respondent had no opportunity to examine and controvert it. To admit
this document would be contrary to due process. Additionally, the
piecemeal presentation of evidence is not in accord with orderly
justice.52
Moreover, in  Maquiling  it was mentioned that Arnado used his US
passport on January 12, 2010 and March 23, 2010. Thus:
Balua likewise presented a certification from the Bureau of
Immigration dated 23 April 201 0, certifying that the name "Arnado,
Rommel Cagoco" appears in the available Computer Database/
Passenger manifest/IBM listing on file as of 21 April 2010, with the
following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 57782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270053
Despite the existence of such statement in Maquiling, We are puzzled
why Arnado never bothered to correct or refute it. He neither alleged
nor presented evidence in this petition to prove that he did not travel
abroad on those dates using his US passport.
Justice Marvic M.V.F. Leonen, however, dissents and maintains the
same position he had taken in Maquiling that Arnado's use of his US
116
passport in 2009 is an isolated act justified by the circumstances at
that time. At any rate, Arnado started to use his Philippine passport in
his travels abroad beginning December 11, 2009 and thenceforth.
This, according to J. Leonen, is borne out by Arnado's Philippine
passport.
With due respect to my esteemed colleague, it appears that J. Leonen
is not only reviving an issue that had already been settled with finality
in the Maquiling case, but he is also going beyond the issues raised in
this petition. To reiterate for clarity, Arnado's argument in this case-
that he is qualified to run for mayor as he has satisfied the
requirements of Sec. 5(2) of RA 9225 relative to the May 13, 2013
elections- is premised only on the alleged newly discovered November
30, 2009 Affidavit. Nothing more. He does not claim in this case that
his use of US passport in his travel abroad in 2009 is an isolated act,
as J. Leonen insists. In Vazquez v. De Borja,54 it was held that courts
do not have jurisdiction over issues neither raised in the pleading nor
tried with the express or implied consent of the parties. They cannot
render judgment based on issues that have never been raised before
them. Equally settled is the rule that "points of law, theories, issues,
and arguments not brought to the attention of the lower [tribunal]
need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage.
Basic considerations of due process underlie this rule."55  The same
goes true with J. Brion's theory that what was cancelled by virtue
of  Maquiling  was only the April 3, 2009 Affidavit of Renunciation
where Arnado expressly renounced any foreign citizenship; not the
July 10, 2008 Oath of Allegiance which carried with it an implied
abdication of foreign citizenship. For J. Brion, "[t]he requirement of an
express renunciation x x x does not negate the effect of, or make any
less real, the prior implicit renunciation of citizenship and allegiance
made upon taking the oath of allegiance." Again, this was never raised
in this petition. At any rate, the execution of an Oath of Allegiance is
required by Section 356 of RA 9225. For those who avail themselves of
RA 9225 and intend to run for public office, Section 5(2) thereof
provides the additional requirement of making a personal and sworn
renunciation of any and all foreign citizenships prior to or at the time
of filing of their CoC. Definitely, the provisions of Section 5(2) are not
useless or meaningless surplusage. When the law expressly requires an
explicit renunciation, an implicit one would be insufficient.
Furthermore, even assuming that Arnado's 2008 implied renunciation is
sufficient, the same has also been negated by his use of his US passport in
2009, following the ruling in Maquiling.
Otherwise, we would give more weight to an implied renunciation than to
an express one specifically required by law.
Besides, the Decision of this Court in  Maquiling  holding that Arnado's
use of his US passport effectively recanted his Affidavit of Renunciation
has already become final and immutable. We can no longer resurrect in
this case the issues that have already been resolved there with fmality.
In maintaining that Arnado used his Philippine passport in travelling
abroad in the first quarter of 2010, J. Leonen relies on the copy thereof
attached to the  rollo  of the  Maquiling  case. But said copy of Arnado's
Philippine passport57  is a mere "CERTIFIED TRUE COPY  FROM THE
MACIDNE COPY ON FILE" as attested to by Rosario P. Palacio, Records
Officer Ill of the Comelec.58 This is clearly stamped on aforesaid copy of
Arnado's Philippine passport. A machine copy or photocopy is a mere
secondary evidence.59  As such, it cannot be admitted in evidence until
and unless the offeror has proven the due execution and the subsequent
loss or unavailability of the original.60  In this case, however, Arnado's
Philippine passport is not missing. Thus, said photocopy of Arnado's
Philippine passport cannot sway us to depart from the uncontroverted
certification of the Bureau ofimmigration that Arnado used his US
passport on January 12, 2010 and March 23, 2010. Consequently, even
assuming that the recently discovered November 30, 2009 Affidavit of
Renunciation with Oath of Allegiance is true and authentic, Arnado once
more performed positive acts on January 12, 2010 and March 23, 2010,
which effectively negated the alleged November 30, 2009 Affidavit
resulting in his disqualification to run for an elective public office.
Landslide election victory cannot
override eligibility requirements.
In Maquiling, this Court emphasized that popular vote does not cure the
ineligibility of a candidate. Thus, while in this case Arnado won by
landslide majority during the 2013 elections, garnering 84% of the total
votes cast, the same "cannot override the constitutional and statutory
requirements for qualifications and disqualifications."61  In  Velasco v.
Comelec,62 this Court pronounced that election victory cannot be used as
a magic formula to bypass election eligibility requirements; otherwise,
certain provisions of laws pertaining to elections will become toothless.
117
One of which is Section 39 of the Local Government Code of 1991, which
specifies the basic positive qualifications of local government officials. If
in Velasco the Court ruled that popular vote cannot override the required
qualifications under Section 39,63a fortiori, there is no reason why the
Court should not follow the same policy when it comes to
disqualifications enumerated under Section 4064  of the same law. After
all, "[t]he qualifications set out in [Section 39] are roughly half of the
requirements for election to local public offices. The other half is
contained in the succeeding section which lays down the circumstances
that disqualify local candidates.”65
Finally, this case is strikingly similar to the case of Lopez v. Comelec.66 In
that case, petitioner Lopez was also a natural-born Filipino who lost his
Philippine citizenship after he became a naturalized US citizen. He later
reacquired his Philippine citizenship by virtue of RA 9225. Thereafter,
Lopez filed his candidacy for Chairman of  Barangay  Bagacay, San
Dionisio, Iloilo in the synchronized  Barangay  and  Sangguniang
Kabataan  Elections held on October 29, 2007 without first making a
personal and sworn renunciation of his foreign citizenship. In spite of the
fact that Lopez won in the elections, this Court still affmned the
Resolution of the Comelec disqualifying Lopez as a candidate for a local
elective position for his failure to comply with the requirements of Section
5(2) of RA 9225. Thus:
While it is true that petitioner won the elections, took his oath and began
to discharge the functions of Barangay Chairman, his victory cannot cure
the defect of his candidacy. Garnering the most number of votes does not
validate the election of a disqualified candidate because the application of
the constitutional and statutory provisions on disqualification is not a
matter of popularity.67
In fine, this Court finds no grave abuse of discretion on the part of the
Comelec  En Banc  in sustaining the Resolution of the Comelec Second
Division disqualifying Arnado from running in the May 13, 2013 elections
and in accordingly setting aside his proclamation as elected mayor of
Kauswagan, Lanao del Norte and proclaiming Capitan as the duly elected
mayor of said municipality.
WHEREFORE, the instant Petition is hereby  DISMISSED  and the
assailed Comelec Resolutions are AFFIRMED. The Status Quo Ante Order
issued by this Court is LIFTED.
SO ORDERED.
 G.R. No. 201043 June 16, 2014
REPUBLIC OF THE PHILIPPINES, represented by the Armed Forces
of the Philippines Finance Center (AFPFC), Petitioner,
vs.
DAISY R. YAHON, Respondent.
VILLARAMA, JR., J.:
Before the Court is a petition for review on certiorari under Rule 45
which seeks to nullify and set aside the Decision1 dated November 29,
2011 and Resolution2 dated March 9, 2012 of the Court of Appeals
(CA) Mindanao Station in CA-G.R. SP No. 02953-MIN. The CA
affirmed the orders and decision of the Regional Trial Court (RTC) of
Cagayan de Oro City, Branch 22 granting temporary and permanent
protection orders, and denying the motion to lift the said temporary
protection order (TPO).
Daisy R. Yahon (respondent) filed a petition for the issuance of
protection order under the provisions of Republic Act (R.A.) No.
9262,3 otherwise known as the "Anti-Violence Against Women and
Their Children Act of 2004," against her husband, S/Sgt. Charles A.
Yahon (S/Sgt. Yahon), an enlisted personnel of the Philippine Army
who retired in January 2006. Respondent and S/Sgt. Yahon were
married on June 8, 2003. The couple did not have any child but
respondent has a daughter with her previous live-in partner.
On September 28, 2006, the RTC issued a TPO, as follows:
Finding the herein petition for the Issuance of Protection Order to be
sufficient in form and substance and to prevent great and irreparable
injury to the petitioner, a TEMPORARY PROTECTION ORDER is
forthwith issued to respondent, S/SGT. CHARLES A. YAHON directing
him to do the following acts:
1. Respondent is enjoined from threatening to commit or committing
further acts of physical abuse and violence against the petitioner;
2. To stay away at a distance of at least 500 meters from petitioner,
her residence or her place of work;
118
3. To refrain from harassing, annoying, intimidating, contacting or
communicating with petitioner; 4. Respondent is prohibited from
using or possessing any firearm or deadly weapon on occasions not
related to his job;
5. To provide reasonable financial spousal support to the petitioner.
The Local Police Officers and the Barangay Officials through the
Chairman in the area where the petitioner and respondent live at
Poblacion, Claveria, Misamis Oriental and Bobuntogan, Jasaan,
Misamis Oriental are directed to respond to any request for assistance
from the petitioner for the implementation of this order. They are also
directed to accompany the petitioner to their conjugal abode at Purok
2, Bobuntogan, Jasaan, Misamis Oriental to get her personal
belongings in order to insure the safety of the petitioner.
The Deputy Sheriff of this Court is ordered to immediately serve the
Temporary Protection Order (TPO) upon the respondent personally
and to seek and obtain the assistance of law enforcement agents, if
needed, for purposes of effecting the smooth implementation of this
order.
In the meantime, let copy of this order and petition be served upon
the respondent for him to file an OPPOSITION within a period of five
(5) days from receipt hereof and let a Preliminary Conference and
hearing on the merits be set on October 17, 2006 at 2:00 o’clock in the
afternoon.
To insure that petitioner can receive a fair share of respondent’s
retirement and other benefits, the following agencies thru their heads
are directed to WITHHOLD any retirement, pension and other benefits
of respondent, S/SGT. CHARLES A. YAHON, a member of the Armed
Forces of the Philippines assigned at 4ID, Camp Evangelista, Patag,
Cagayan de Oro City until further orders from the court:
1. Commanding General/Officer of the Finance Center of the Armed
Forces of the Philippines, Camp Emilio Aguinaldo, Quezon City;
2. The Management of RSBS, Camp Emilio Aguinaldo, Quezon City;

3. The Regional Manager of PAG-IBIG, Mortola St., Cagayan de Oro
City.
VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.
IF THE RESPONDENT APPEARS WITHOUT COUNSEL ON THE DATE
OF THE PRELIMINARYCONFERENCE AND HEARING ON THE
MERITS OF THE ISSUANCE OF A PERMANENT PROTECTION
ORDER, THE COURT SHALL NOT RESCHEDULE OR POSTPONE THE
PRELIMINARY CONFERENCE AND HEARING BUT SHALL APPOINT A
LAWYER FOR THE RESPONDENT AND IMMEDIATELY PROCEED
WITH THE SAID HEARING.
IF THE RESPONDENT FAILS TO APPEAR ON THE DATE OF THE
PRELIMINARY CONFERENCE AND HEARING ON THE MERITS
DESPITE PROPER NOTICE, THE COURT SHALL ALLOW EX-PARTE
PRESENTATION OF EVIDENCE BY THE PETITIONER AND RENDER
JUDGMENT ON THE BASIS OF THE PLEADINGS AND EVIDENCE ON
RECORD. NO DELEGATION OF THE RECEPTION OF EVIDENCE
SHALL BE ALLOWED.
SO ORDERED.4 (Emphasis supplied.)
S/Sgt. Yahon, having been personally served with copy of the TPO,
appeared during the scheduled pre-trial but informed the court that he
did not yet have a counsel and requested for time to hire his own
counsel. However, he did not hire a counsel nor file an opposition or
answer to the petition. Because of his failure to appear in the
subsequent hearings of the case, the RTC allowed the ex-parte
presentation of evidence to determine the necessity of issuance of a
Permanent Protection Order (PPO).
Meanwhile, as prayed for by respondent who manifested that S/Sgt.
Yahon deliberately refused to give her spousal support as directed in
the TPO (she claimed that she had no source of livelihood since he
had told her to resign from her job and concentrate on keeping their
house), the RTC issued another order directing S/Sgt. Yahon to give
respondent spousal support in the amount of ₱4,000.00 per month
119
and fifty percent (50%) of his retirement benefits which shall be
automatically deducted and given directly to respondent.5
In her testimony, respondent also said that S/Sgt. Yahon never
complied with the TPO as he continued making threats and inflicting
physical abuse on her person, and failed to give her spousal support as
ordered by the court.
On July 23, 2007, the RTC rendered its Decision,6 as follows:
After careful review and scrutiny of the evidence presented in
this case, this court finds that there is a need to permanently
protect the applicant, Daisy R. Yahon from further acts of
violence that might be committed by respondent against her.
Evidences showed that respondent who was a member of the
Armed Forces of the Philippines assigned at the Headquarters
4ID Camp Evangelista, Cagayan de Oro City had been
repeatedly inflicting physical, verbal, emotional and economic
abuse and violence upon the petitioner. Respondent in several
instances had slapped, mauled and punched petitioner causing
her physical harm. Exhibits G and D are medical certificates
showing physical injuries suffered by petitioner inflicted by the
respondent at instances of their marital altercations.
Respondent at the height of his anger often poked a gun on
petitioner and threatened to massacre her and her child
causing them to flee for their lives and sought refuge from
other people. He had demanded sex from petitioner at an
unreasonable time when she was sick and chilling and when
refused poked a gun at her. Several police blotters were offered
as evidence by petitioner documenting the incidents when she
was subjected to respondent’s ill temper and ill treatment.
Verbally, petitioner was not spared from respondent’s abuses by
shouting at her that he was wishing she would die and he
would celebrate if it happens and by calling and sending her
threatening text messages. These incidents had caused
petitioner great psychological trauma causing her [to] fear for
her life and these forced her to seek refuge from the court for
protection. Economically, petitioner was also deprived by
respondent of her spousal support despite order of the court
directing him to give a monthly support of Php4,000.00. In
 view of the foregoing, this court finds a need to protect the life
of the petitioner not only physically but also emotionally and
psychologically.
Based on the evidence presented, both oral and documentary,
and there being no controverting evidence presented by
respondent, this Court finds that the applicant has established
her case by preponderance of evidence.
WHEREFORE, premises considered, judgment is hereby
rendered GRANTING the petition, thus, pursuant to Sec. 30 of
A.M. No. 04-10-1-SC, let a PERMANENT PROTECTION ORDER
be issued immediately and respondent, S/Sgt. CHARLES
A.YAHON is ordered to give to petitioner, DAISY R. YAHON the
amount of FOUR THOUSAND PESOS (Php4,000.00) per
month by way of spousal support.
Pursuant to the order of the court dated February 6, 2007,
respondent, S/Sgt. Charles A. Yahon is directed to give it to
petitioner 50% of whatever retirement benefits and other
claims that may be due or released to him from the
government and the said share of petitioner shall be
automatically deducted from respondent’s benefits and claims
and be given directly to the petitioner, Daisy R. Yahon.
Let copy of this decision be sent to the Commanding General/
Officer of Finance Center of the Armed Forces of the
Philippines, Camp Emilio Aguinaldo, Quezon City; the
Management of RSBS, Camp Emilio Aguinaldo, Quezon City
and the Regional Manager of PAG-IBIG, Mortola St., Cagayan
de Oro City for their guidance and strict compliance.
SO ORDERED.7 (Emphasis supplied.)
Herein petitioner Armed Forces of the Philippines Finance Center
(AFPFC), assisted by the Office of the Judge Advocate General
(OTJAG), AFP, filed before the RTC a Manifestation and Motion (To
Lift Temporary Protection Order Against the AFP)8 dated November
10, 2008. Stating that it was making a limited and special appearance,
petitioner manifested that on August 29, 2008, it furnished the AFP
120
Pension and Gratuity Management Center (PGMC) copy of the TPO
for appropriate action. The PGMC, on September 2, 2008, requested
the Chief, AFPFC the temporary withholding of the thirty-six (36)
Months Lump Sum (MLS) due to S/Sgt. Yahon. Thereafter, on October
29, 2008, PGMC forwarded a letter to the Chief of Staff, AFP for the
OTJAG for appropriate action on the TPO, and requesting for legal
opinion as to the propriety of releasing the 36 MLS of S/Sgt. Yahon.
Petitioner informed the RTC that S/Sgt. Yahon’s check representing his
36 MLS had been processed and is ready for payment by the AFPFC,
but to date said check has not been claimed by respondent.
Petitioner further asserted that while it has initially discharged its
obligation under the TPO, the RTC had not acquired jurisdiction over
the military institution due to lack of summons, and hence the AFPFC
cannot be bound by the said court order. Additionally, petitioner
contended that the AFPFC is not a party-in-interest and is a complete
stranger to the proceedings before the RTC on the issuance of TPO/
PPO. Not being impleaded in the case, petitioner lamented that it was
not afforded due process and it was thus improper to issue execution
against the AFPFC. Consequently, petitioner emphasized its position
that the AFPFC cannot be directed to comply with the TPO without
violating its right to procedural due process.
In its Order9 dated December 17, 2008, the RTC denied the aforesaid
motion for having been filed out of time. It noted that the September
28, 2006 TPO and July 23, 2007 Decision granting Permanent
Protection Order (PPO) to respondent had long become final and
executory.
Petitioner’s motion for reconsideration was likewise denied under the
RTC’s Order10 dated March 6, 2009.
On May 27, 2009, petitioner filed a petition for certiorari before the
CA praying for the nullification of the aforesaid orders and decision
insofar as it directs the AFPFC to automatically deduct from S/Sgt.
Yahon’s retirement and pension benefits and directly give the same to
respondent as spousal support, allegedly issued with grave abuse of
discretion amounting to lack of jurisdiction. Respondent filed her
Comment with Prayer for Issuance of Preliminary Injunction,
manifesting that there is no information as to whether S/Sgt. Yahon
already received his retirement benefit and that the latter has
repeatedly violated the TPO, particularly on the provision of spousal
support.
After due hearing, the CA‘s Twenty-Second Division issued a
Resolution11 granting respondent’s application, viz:
Upon perusal of the respective pleadings filed by the parties, the Court
finds meritorious private respondent’s application for the issuance of
an injunctive relief. While the 36-month lump sum retirement benefits
of S/Sgt. Charles A. Yahon has already been given to him, yet as
admitted by petitioner itself, the monthly pension after the mentioned
retirement benefits has not yet been released to him. It appears that
the release of such pension could render ineffectual the eventual
ruling of the Court in this Petition.
IN VIEW OF THE FOREGOING, let a WRIT OF PRELIMINARY
INJUNCTION issue enjoining the Armed Forces of the Philippines
Finance Center, its employees, agents, representatives, and any all
persons acting on its behalf, from releasing the remaining pension that
may be due to S/Sgt. Charles A. Yahon.
SO ORDERED.12
By Decision dated November 29, 2011, the CA denied the petition for
certiorari and affirmed the assailed orders and decision of the RTC.
The CA likewise denied petitioner’s motion for reconsideration.
In this petition, the question of law presented is whether petitioner
military institution may be ordered to automatically deduct a
percentage from the retirement benefits of its enlisted personnel, and
to give the same directly to the latter’s lawful wife as spousal support
in compliance with a protection order issued by the RTC pursuant to
R.A. No. 9262.
A protection order is an order issued by the court to prevent further
acts of violence against women and their children, their family or
household members, and to grant other necessary relief. Its purpose is
to safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability
121
to regain control of their life.13 The protection orders issued by the
court may be a Temporary Protection Order (TPO) or a Permanent
Protection Order (PPO), while a protection order that may be issued
by the barangay shall be known as a Barangay Protection Order
(BPO).14
Section 8 of R.A. No. 9262 enumerates the reliefs that may be
included in the TPO, PPO or BPO, to wit:
(a) Prohibition of the respondent from threatening to commit or
committing, personally or through another, any of the acts
mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying,
telephoning, contacting or otherwise communicating with the
petitioner, directly or indirectly;
(c) Removal and exclusion of the respondent from the residence of
the petitioner, regardless of ownership of the residence, either
temporarily for the purpose of protecting the petitioner, or
permanently where no property rights are violated, and if
respondent must remove personal effects from the residence, the
court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until respondent has
gathered his things and escort respondent from the residence;
(d) Directing the respondent to stay away from petitioner and
any designated family or household member at a distance
specified by the court, and to stay away from the residence,
school, place of employment, or any specified place frequented by
the petitioner and any designated family or household member;
(e) Directing lawful possession and use by petitioner of an
automobile and other essential personal effects, regardless of
ownership, and directing the appropriate law enforcement officer
to accompany the petitioner to the residence of the parties to
ensure that the petitioner is safely restored to the possession of
the automobile and other essential personal effects, or to
supervise the petitioner’s or respondent’s removal of personal
belongings;

(f) Granting a temporary or permanent custody of a child/
children to the petitioner;
(g) Directing the respondent to provide support to the woman
and/or her child if entitled to legal support. Notwithstanding
other laws to the contrary, the court shall order an appropriate
percentage of the income or salary of the respondent to be
withheld regularly by the respondent's employer for the same to
be automatically remitted directly to the woman. Failure to remit
and/or withhold or any delay in the remittance of support to the
woman and/or her child without justifiable cause shall render
the respondent or his employer liable for indirect contempt of
court;
(h) Prohibition of the respondent from any use or possession of
any firearm or deadly weapon and order him to surrender the
same to the court for appropriate disposition by the court,
including revocation of license and disqualification to apply for
any license to use or possess a firearm. If the offender is a law
enforcement agent, the court shall order the offender to surrender
his firearm and shall direct the appropriate authority to
investigate on the offender and take appropriate action on
matter;
(i) Restitution for actual damages caused by the violence
inflicted, including, but not limited to, property damage, medical
expenses, child care expenses and loss of income;
(j) Directing the DSWD or any appropriate agency to provide
petitioner temporary shelter and other social services that the
petitioner may need; and
(k) Provision of such other forms of relief as the court deems
necessary to protect and provide for the safety of the petitioner
and any designated family or household member, provided
petitioner and any designated family or household member
consents to such relief. (Emphasis supplied.)
122
Petitioner argues that it cannot comply with the RTC’s directive for the
automatic deduction of 50% from S/Sgt. Yahon’s retirement benefits
and pension to be given directly to respondent, as it contravenes an
explicit mandate under the law governing the retirement and
separation of military personnel.
The assailed provision is found in Presidential Decree (P.D.) No.
1638,15 which states: Section 31. The benefits authorized under this
Decree, except as provided herein, shall not be subject to attachment,
garnishment, levy, execution or any tax whatsoever; neither shall they
be assigned, ceded, or conveyed to any third person: Provided, That if
a retired or separated officer or enlisted man who is entitled to any
benefit under this Decree has unsettled money and/or property
accountabilities incurred while in the active service, not more than
fifty per centum of the pension gratuity or other payment due such
officer or enlisted man or his survivors under this Decree may be
withheld and be applied to settle such accountabilities. (Emphasis
supplied.)
A similar provision is found in R.A. No. 8291, otherwise known as the
"Government Service Insurance System Act of 1997," which reads:
SEC. 39. Exemption from Tax, Legal Process and Lien -- x x x
xxxx
The funds and/or the properties referred to herein as well as the
benefits, sums or monies corresponding to the benefits under this
Act shall be exempt from attachment, garnishment, execution,
levy or other processes issued by the courts, quasi-judicial
agencies or administrative bodies including Commission on Audit
(COA) disallowances and from all financial obligations of the
members, including his pecuniary accountability arising from or
caused or occasioned by his exercise or performance of his official
functions or duties, or incurred relative to or in connection with
his position or work except when his monetary liability,
contractual or otherwise, is in favor of the GSIS.
In Sarmiento v. Intermediate Appellate Court,16 we held that a court
order directing the Philippine National Bank to refrain from releasing
to petitioner all his retirement benefits and to deliver one-half of such
monetary benefits to plaintiff as the latter’s conjugal share is illegal
and improper, as it violates Section 26 of CA 186 (old GSIS Law)
which exempts retirement benefits from execution.
The foregoing exemptions have been incorporated in the 1997 Rules
of Civil Procedure, as amended, which governs execution of judgments
and court orders. Section 13 of Rule 39 enumerates those properties
which are exempt from execution:
SEC. 13. Property exempt from execution.– Except as otherwise
expressly provided by law, the following property, and no other,
shall be exempt from execution:
xxxx
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;(Emphasis supplied.)
It is basic in statutory construction that in case of irreconcilable
conflict between two laws, the later enactment must prevail, being the
more recent expression of legislative will.17 Statutes must be so
construed and harmonized with other statutes as to form a uniform
system of jurisprudence.18 However, if several laws cannot be
harmonized, the earlier statute must yield to the later enactment. The
later law is the latest expression of the legislative will.19
We hold that Section 8(g) of R.A. No. 9262, being a later enactment,
should be construed as laying down an exception to the general rule
above-stated that retirement benefits are exempt from execution. The
law itself declares that the court shall order the withholding of a
percentage of the income or salary of the respondent by the employer,
which shall be automatically remitted directly to the woman
"[n]otwithstanding other laws to the contrary."
Petitioner further contends that the directive under the TPO to
segregate a portion of S/Sgt. Yahon’s retirement benefits was illegal
because said moneys remain as public funds, citing the case of Pacific
Products v. Ong.20 In that case, this Court sustained the CA when it
123
held that the garnishment of the amount of ₱10,500 payable to BML
Trading and Supply while it was still in the possession of the Bureau of
Telecommunications was illegal and therefore, null and void. The CA
therein relied on the previous rulings in Director of Commerce and
Industry v. Concepcion21 and Avendano v. Alikpala, et al.22 wherein
this Court declared null and void the garnishment of the salaries of
government employees.
Citing the two aforementioned cases, we thus declared in Pacific
Products:
A rule, which has never been seriously questioned, is that money in
the hands of public officers, although it may be due government
employees, is not liable to the creditors of these employees in the
process of garnishment. One reason is, that the State, by virtue of its
sovereignty may not be sued in its own courts except by express
authorization by the Legislature, and to subject its officers to
garnishment would be to permit indirectly what is prohibited directly.
Another reason is that moneys sought to be garnished, as long as they
remain in the hands of the disbursing officer of the Government,
belong to the latter, although the defendant in garnishment may be
entitled to a specific portion thereof. And still another reason which
covers both of the foregoing is that every consideration of public
policy forbids it.23
We disagree.
Section 8(g) of R.A. No. 9262 used the general term "employer," which
includes in its coverage the military institution, S/Sgt. Yahon’s
employer. Where the law does not distinguish, courts should not
distinguish. Thus, Section 8(g) applies to all employers, whether
private or government.
It bears stressing that Section 8(g) providing for spousal and child
support, is a support enforcement legislation.1âwphi1 In the United
States, provisions of the Child Support Enforcement Act24 allow
garnishment of certain federal funds where the intended recipient has
failed to satisfy a legal obligation of child support. As these provisions
were designed "to avoid sovereign immunity problems" and provide
that "moneys payable by the Government to any individual are subject
to child support enforcement proceedings," the law is clearly intended to
"create a limited waiver of sovereign immunity so that state courts could
issue valid orders directed against Government agencies attaching funds
in their possession."25
This Court has already ruled that R.A. No. 9262 is constitutional and does
not violate the equal protection clause. In Garcia v. Drilon26 the issue of
constitutionality was raised by a husband after the latter failed to obtain
an injunction from the CA to enjoin the implementation of a protection
order issued against him by the RTC. We ruled that R.A. No. 9262 rests on
real substantial distinctions which justify the classification under the law:
the unequal power relationship between women and men; the fact that
women are more likely than men to be victims of violence; and the
widespread bias and prejudice against women.
We further held in Garcia that the classification is germane to the purpose
of the law, viz:
The distinction between men and women is germane to the purpose of
R.A. 9262, which is to address violence committed against women and
children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy.– It is hereby declared that the State
values the dignity of women and children and guarantees full respect
for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from
violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the fundamental
freedoms guaranteed under the Constitution and the provisions of the
Universal Declaration of Human Rights, the Convention on the
Elimination of All Forms of Discrimination Against Women, Convention on
the Rights of the Child and other international human rights instruments
of which the Philippines is a party.27
Under R.A. No. 9262, the provision of spousal and child support
specifically address one form of violence committed against women –
economic abuse.
D. "Economic abuse" refers to acts that make or attempt to make a woman
financially dependent which includes, but is not limited to the following:
124
1. Withdrawal of financial support or preventing the victim from
engaging in any legitimate profession, occupation, business or
activity, except in cases wherein the other spouse/partner objects
on valid, serious and moral grounds as defined in Article 73 of the
Family Code;
2. Deprivation or threat of deprivation of financial resources and
the right to the use and enjoyment of the conjugal, community or
property owned in common;
3. Destroying household property;
4. Controlling the victims' own money or properties or solely
controlling the conjugal money or properties.28
The relief provided in Section 8(g) thus fulfills the objective of restoring
the dignity of women who are victims of domestic violence and provide
them continued protection against threats to their personal safety and
security.
"The scope of reliefs in protection orders is broadened to ensure that the
victim or offended party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to safeguard the victim
from greater risk of violence; to accord the victim and any designated
family or household member safety in the family residence, and to
prevent the perpetrator from committing acts that jeopardize the
employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from
violence, to prevent their abduction by the perpetrator and to ensure their
financial support."29
WHEREFORE, the petition is DENIED for lack of merit. The Decision
dated November 29, 2011 and Resolution dated March 9, 2012 of the
Court of Appeals Mindanao Station in CA-G.R. SP No. 02953-MIN are
AFFIRMED and UPHELD.
No costs.
SO ORDERED.
 G.R. No. 115245 July 11, 1995
JUANITO C. PILAR, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court assailing the Resolution dated April 28, 1994 of the Commission
on Elections (COMELEC) in UND No. 94-040.
I of his office until he has filed the statement of contributions and
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of
candidacy for the position of member of the Sangguniang
Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and
February 13, 1994 respectively, the COMELEC imposed upon
petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to
file his statement of contributions and expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied
the motion for reconsideration of petitioner and deemed final M.R.
Nos. 93-2654 and 94-0065 (Rollo, p. 14).
Petitioner went to the COMELEC En Banc (UND No. 94-040), which
denied the petition in a Resolution dated April 28, 1994 (Rollo, pp.
10-13).
Hence, this petition for certiorari.
We dismiss the petition.
II
125
Section 14 of R.A. No. 7166 entitled "An Act Providing for
Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes" provides
as follows:
Statement of Contributions and Expenditures: Effect of Failure to
File Statement. Every candidate and treasurer of the political
party shall, within thirty (30) days after the day of the election,
file in duplicate with the offices of the Commission the full, true
and itemized statement of all contributions and expenditures in
connection with the election.
No person elected to any public office shall enter upon the duties
expenditures herein required.
The same prohibition shall apply if the political party which
nominated the winning candidate fails to file the statement
required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the
statements or reports in connection with electoral contributions
and expenditures as required herein shall constitute an
administrative offense for which the offenders shall be liable to
pay an administrative fine ranging from One Thousand Pesos
( P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the
discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a writ
of execution issued by the Commission against the properties of
the offender.
It shall be the duty of every city or municipal election registrar to
advise in writing, by personal delivery or registered mail, within
five (5) days from the date of election all candidates residing in
his jurisdiction to comply with their obligation to file their
statements of contributions and expenditures.
 For the commission of a second or subsequent offense under this
Section, the administrative fine shall be from Two Thousand
Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the
discretion of the Commission. In addition, the offender shall be
subject to perpetual disqualification to hold public office
(Emphasis supplied).
To implement the provisions of law relative to election contributions
and expenditures, the COMELEC promulgated on January 13, 1992
Resolution No. 2348 (Re: Rules and Regulations Governing Electoral
Contributions and Expenditures in Connection with the National and
Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:
Sec. 13. Statement of contributions and expenditures: Reminders
to candidates to file statements. Within five (5) days from the
day of the election, the Law Department of the Commission, the
regional election director of the National Capital Region, the
provincial election supervisors and the election registrars shall
advise in writing by personal delivery or registered mail all
candidates who filed their certificates of candidacy with them to
comply with their obligation to file their statements of
contributions and expenditures in connection with the elections.
Every election registrar shall also advise all candidates residing in
his jurisdiction to comply with said obligation (Emphasis
supplied).
Sec. 17. Effect of failure to file statement. (a) No person elected to
any public office shall enter upon the duties of his office until he
has filed the statement of contributions and expenditures herein
required.
The same prohibition shall apply if the political party which
nominated the winning candidates fails to file the statement
required within the period prescribed by law.
(b) Except candidates for elective barangay office, failure to
file statements or reports in connection with the electoral
contributions and expenditures as required herein shall constitute
an administrative offense for which the offenders shall be liable to
126
pay an administrative fine ranging from One Thousand Pesos
(P1,000) to Thirty Thousand Pesos (P30,000), in the discretion
of the Commission.
The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a writ
of execution issued by the Commission against the properties of
the offender.
For the commission of a second or subsequent offense under this
section, the administrative fine shall be from Two Thousand Pesos
(P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of
the Commission. In addition, the offender shall be subject to
perpetual disqualification to hold public office.
Petitioner argues that he cannot be held liable for failure to file a
statement of contributions and expenditures because he was a "non-
candidate," having withdrawn his certificates of candidacy three days
after its filing. Petitioner posits that "it is . . . clear from the law that
candidate must have entered the political contest, and should have
either won or lost" (Rollo, p. 39).
Petitioner's argument is without merit.
Section 14 of R.A. No. 7166 states that "every candidate" has the
obligation to file his statement of contributions and expenditures.
Well-recognized is the rule that where the law does not distinguish,
courts should not distinguish, Ubi lex non distinguit nec nos
distinguere debemos (Philippine British Assurance Co. Inc. v.
Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v.
Commission on Elections, 103 SCRA 741 [1981]). No distinction is to
be made in the application of a law where none is indicated (Lo Cham
v. Ocampo, 77 Phil. 636 [1946]).
In the case at bench, as the law makes no distinction or qualification
as to whether the candidate pursued his candidacy or withdrew the
same, the term "every candidate" must be deemed to refer not only to
a candidate who pursued his campaign, but also to one who withdrew
his candidacy.
The COMELEC, the body tasked with the enforcement and
administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall (The
Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]),
issued Resolution No. 2348 in implementation or interpretation of the
provisions of Republic Act No. 7166 on election contributions and
expenditures. Section 13 of Resolution No. 2348 categorically refers to
"all candidates who filed their certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general
rule, the use of the word "shall" in a statute implies that the statute is
mandatory, and imposes a duty which may be enforced , particularly if
public policy is in favor of this meaning or where public interest is
involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA
757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil.
608 [1952]).
The state has an interest in seeing that the electoral process is clean,
and ultimately expressive of the true will of the electorate. One way of
attaining such objective is to pass legislation regulating contributions
and expenditures of candidates, and compelling the publication of the
same. Admittedly, contributions and expenditures are made for the
purpose of influencing the results of the elections (B.P. Blg. 881, Sec.
94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe
what contributions are prohibited (B.P. Blg. 881, Sec. 95, Resolution
No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what
expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166,
Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348,
Sec. 8).
Such statutes are not peculiar to the Philippines. In "corrupt and
illegal practices acts" of several states in the United States, as well as
in federal statutes, expenditures of candidates are regulated by
requiring the filing of statements of expenses and by limiting the
amount of money that may be spent by a candidate. Some statutes
also regulate the solicitation of campaign contributions (26 Am Jur 2d,
Elections § 287). These laws are designed to compel publicity with
respect to matters contained in the statements and to prevent, by such
publicity, the improper use of moneys devoted by candidates to the
furtherance of their ambitions (26 Am Jur 2d, Elections § 289). These
127
statutes also enable voters to evaluate the influences exerted on behalf
of candidates by the contributors, and to furnish evidence of corrupt
practices for annulment of elections (Sparkman v. Saylor [Court of
Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are mandatory as to
the requirement of filing (State ex rel. Butchofsky v. Crawford [Court
of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v.
Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v. Saylor,
supra.)
It is not improbable that a candidate who withdrew his candidacy has
accepted contributions and incurred expenditures, even in the short
span of his campaign. The evil sought to be prevented by the law is
not all too remote.
It is notesworthy that Resolution No. 2348 even contemplates the
situation where a candidate may not have received any contribution or
made any expenditure. Such a candidate is not excused from filing a
statement, and is in fact required to file a statement to that effect.
Under Section 15 of Resolution No. 2348, it is provided that "[i]f a
candidate or treasurer of the party has received no contribution, made
no expenditure, or has no pending obligation, the statement shall
reflect such fact."
Lastly, we note that under the fourth paragraph of Section 73 of the
B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is
provided that "[t]he filing or withdrawal of certificate of candidacy
shall not affect whatever civil, criminal or administrative liabilities
which a candidate may have incurred." Petitioner's withdrawal of his
candidacy did not extinguish his liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
 G.R. No. 110898 February 20, 1996
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE ANTONIO C. EVANGELISTA, as Presiding Judge of
Branch XXI, 10th Judicial Region, RTC of Misamis Oriental, Cagayan
de Oro City, and GRILDO S. TUGONON, respondents.
MENDOZA, J.:
Private respondent Grildo S. Tugonan was charged with frustrated
homicide in the Regional Trial Court of Misamis Oriental (Branch 21), the
information against him alleging
That on or about the 26th day of May, 1988, at more or less 9:00 o'clock
in the evening at Barangay Publican+.3, Municipality of Villanueva,
Province of Misamis Oriental, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with intent
to kill and with the use of a knife, which he was then conveniently
provided of, did then and there willfully, unlawfully and feloniously
assault, attack and stab Roque T. Bade thereby inflicting upon him the
following injuries, to wit:
Stab wound, right iliac area, 0.5 cm. penetrating non perforating
lacerating posterior peritoneum, 0,5 cm.
Thus performing all the acts of execution which would produce the crime
of Homicide as a consequence but which, nevertheless, did not produce it
by reason of causes independent of the will of the accused, that is by
timely medical attendance which prevented his death.
CONTRARY TO and in violation of Article 249 in relation to Article 6 of
the Revised Penal Code.
After trial he was found guilty and sentenced to one year of prision
correccional in its minimum period and ordered to pay to the offended
party P5,000.00 for medical expense, without subsidiary imprisonment,
and the costs. The RTC appreciated in his favor the privileged mitigating
circumstances of incomplete self-defense and the mitigating circumstance
of voluntary surrender.
128
On appeal the Court of Appeals affirmed private respondent's conviction
but modified his sentence by imposing on him an indeterminate penalty
of 2 months of arresto mayor, as minimum, to 2 years and 4 months of
prision correccional, as maximum.1
On December 21, 1992, respondent Judge Antonio C. Evangelista of the
RTC set the case for repromulgation on January 4, 1993.
On December 28, 1992, private respondent filed a petition for probation,2
alleging that (1) he possessed all the qualifications and none of the
disqualifications for probation under P.D. No. 968, as amended; (2) the
Court of Appeals has in fact reduced the penalty imposed on him by the
trial court; (3) in its resolution, the Court of Appeals took no action on a
petition for probation which he had earlier filed with it so that the
petition could be filed with the trial court; (4) in the trial court's decision,
two mitigating circumstances of incomplete self-defense and voluntarily
surrender were appreciated in his favor; and (5) in Santos To v. Paño,3
the Supreme Court upheld the right of the accused to probation
notwithstanding the fact that he had appealed from his conviction by the
trial court.
On February 2, 1993, the RTC ordered private respondent to report for
interview to the Provincial Probation Officer. The Provincial Probation
Officer on the other hand was required to submit his report with
recommendation to the court within 60 days.4
On February 18, 1993, Chief Probation and Parole Officer Isias B.
Valdehueza recommended denial of private respondent's application for
probation on the ground that by appealing the sentence of the trial court,
when he could have then applied for probation, private respondent
waived the right to make his application. The Probation Officer thought
the present case to be distinguishable from Santos To v. Paño in the sense
that in this case the original sentence imposed on private respondent by
the trial court (1 year of imprisonment) was probationable and there was
no reason for private respondent not to have filed his application for
probation then, whereas in Santos To v. Paño the penalty only became
probationable after it had been reduced as a result of the appeal.
On April 16, 1993 Valdehueza reiterated5 his "respectful recommendation
that private respondent's application for probation be denied and that a
warrant of arrest be issued for him to serve his sentence in jail."
The RTC set aside the Probation Officer's recommendation and granted
private respondent's application for probation in its order of April 23,
1993,6 Hence this petition by the prosecution.
The issue in this case is whether the RTC committed a grave abuse of its
discretion by granting private respondent's application for probation
despite the fact that he had appealed from the judgment of his conviction
of the trial court.
The Court holds that it did.
Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D.
No. 986, otherwise known as the Probation Law, for the accused to take
his chances on appeal by allowing probation to be granted even after an
accused had appealed his sentence and failed to obtain an acquittal, just
so long as he had not yet started to serve the sentence.7 Accordingly, in
Santos To v. Paño, it was held that the fact that the accused had appealed
did not bar him from applying for probation especially because it was as a
result of the appeal that his sentence was reduced and made the
probationable limit.
The law was, however, amended by P.D. No. 1990 which took effect on
January 15, 19868 precisely to put a stop to the practice of appealing
from judgments of conviction even if the sentence is probationable for the
purpose of securing an acquittal and applying for probation only if the
accused fails in his bid. Thus, as amended by P.D. No, 1990, §4 of the
Probation Law now reads:
§4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appealable. (Emphasis
added).
129
Since private respondent filed his application for probation on December
28, 1992, after P.D. No. 1990 had taken effect,9 it is covered by the
prohibition that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction" and that "the filing of the application shall be deemed a
waiver of the right to appeal," Having appealed from the judgment of the
trial court and having applied for probation only after the Court of
Appeals had affirmed his conviction, private respondent was clearly
precluded from the benefits of probation.
Private respondent argues, however, that a distinction should be drawn
between meritorious appeals (like his appeal notwithstanding the
appellate court's affirmance of his conviction) and unmeritorious appeals.
But the law does not make any distinction and so neither should the
Court. In fact if an appeal is truly meritorious the accused would be set
free and not only given probation. Private respondent's original sentence
(1 year of prision correccional in its minimum period) and the modified
sentence imposed by the Court of Appeals (2 months of arresto mayor, as
minimum, to 2 years and 4 months of prision correccional, as maximum)
are probationable. Thus the fact that he appealed meant that private
respondent was taking his chances which the law precisely frowns upon.
This is precisely the evil that the amendment in P.D. No. 1990 sought to
correct, since in the words of the preamble to the amendatory law,
"probation was not intended as an escape hatch and should not be used to
obstruct and delay the administration of justice, but should be availed of
at the first opportunity by offenders who are willing to be reformed and
rehabilitated."
The ruling of the RTC that "[h]aving not perfected an appeal against the
Court of Appeals decision, [private respondent] is, therefore, not covered by
[the amendment in] P.D. 1990" is an obvious misreading of the law. The
perfection of the appeal referred in the law refers to the .appeal taken from a
judgment of conviction by the trial court and not that of the appellate court,
since under the law an application for probation is filed with the trial court
which can only grant the same "after it shall have convicted and sentenced
[the] defendant, and upon application by said defendant within the period for
perfecting an appeal. "Accordingly, in Llamado v. Court of Appeals, 10 it was
held that the petitioner who had appealed his sentence could not
subsequently apply for probation.
WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of the
Regional Trial Court of Misamis Oriental (Branch 21) granting probation to
private respondent Grildo S. Tugonon is SET ASIDE. SO ORDERED.

G.R. No. 87416 April 8, 1991
CECILIO S. DE VILLA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, PEOPLE OF THE
PHILIPPINES, HONORABLE JOB B. MADAYAG, and ROBERTO Z.
LORAYES, respondents.
PARAS, J.:
This petition for review on certiorari seeks to reverse and set aside the
decision* of the Court of Appeals promulgated on February 1, 1989 in CA-
G.R. SP No. 16071 entitled "Cecilio S. de Villa vs. Judge Job B. Madayag,
etc. and Roberto Z. Lorayes," dismissing the petition for certiorari filed
therein.
The factual backdrop of this case, as found by the Court of Appeals, is as
follows:
On October 5, 1987, petitioner Cecilio S. de Villa was charged before the
Regional Trial Court of the National Capital Judicial Region (Makati,
Branch 145) with violation of Batas Pambansa Bilang 22, allegedly
committed as follows:
That on or about the 3rd day of April 1987, in the municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there willfully, unlawfully
and feloniously make or draw and issue to ROBERTO Z. LORAYEZ, to
apply on account or for value a Depositors Trust Company Check No.
3371 antedated March 31, 1987, payable to herein complainant in the
total amount of U.S. $2,500.00 equivalent to P50,000.00, said accused
well knowing that at the time of issue he had no sufficient funds in or
credit with drawee bank for payment of such check in full upon its
presentment which check when presented to the drawee bank within
ninety (90) days from the date thereof was subsequently dishonored for
the reason "INSUFFICIENT FUNDS" and despite receipt of notice of such
dishonor said accused failed to pay said ROBERTO Z. LORAYEZ the
amount of P50,000.00 of said check or to make arrangement for full
payment of the same within five (5) banking days after receiving said
notice.
130
After arraignment and after private respondent had testified on direct
examination, petitioner moved to dismiss the Information on the
following grounds: (a) Respondent court has no jurisdiction over the
offense charged; and (b) That no offense was committed since the check
involved was payable in dollars, hence, the obligation created is null and
void pursuant to Republic Act No. 529 (An Act to Assure Uniform Value of
Philippine Coin and Currency).
On July 19, 1988, respondent court issued its first questioned orders
stating:
Accused's motion to dismiss dated July 5, 1988, is denied for lack of
merit.
Under the Bouncing Checks Law (B.P. Blg. 22), foreign checks, provided
they are either drawn and issued in the Philippines though payable
outside thereof, or made payable and dishonored in the Philippines
though drawn and issued outside thereof, are within the coverage of said
law. The law likewise applied to checks drawn against current accounts in
foreign currency.
Petitioner moved for reconsideration but his motion was subsequently
denied by respondent court in its order dated September 6, 1988, and
which reads:
Accused's motion for reconsideration, dated August 9, 1988, which was
opposed by the prosecution, is denied for lack of merit.
The Bouncing Checks Law is applicable to checks drawn against current
accounts in foreign currency (Proceedings of the Batasang Pambansa,
February 7, 1979, p. 1376, cited in Makati RTC Judge (now Manila City
Fiscal) Jesus F. Guerrero's The Ramifications of the Law on Bouncing
Checks, p. 5). (Rollo, Annex "A", Decision, pp. 20-22).
A petition for certiorari seeking to declare the nullity of the aforequoted
orders dated July 19, 1988 and September 6, 1988 was filed by the
petitioner in the Court of Appeals wherein he contended:
(a) That since the questioned check was drawn against the dollar
account of petitioner with a foreign bank, respondent court has no
jurisdiction over the same or with accounts outside the territorial
jurisdiction of the Philippines and that Batas Pambansa Bilang 22 could
have not contemplated extending its coverage over dollar accounts;

(b) That assuming that the subject check was issued in connection with a
private transaction between petitioner and private respondent, the
payment could not be legally paid in dollars as it would violate Republic
Act No. 529; and
(c) That the obligation arising from the issuance of the questioned
check is null and void and is not enforceable with the Philippines either in
a civil or criminal suit. Upon such premises, petitioner concludes that the
dishonor of the questioned check cannot be said to have violated the
provisions of Batas Pambansa Bilang 22. (Rollo, Annex "A", Decision, p.
22).
On February 1, 1989, the Court of Appeals rendered a decision, the
decretal portion of which reads:
WHEREFORE, the petition is hereby dismissed. Costs against
petitioner.
SO ORDERED. (Rollo, Annex "A", Decision, p. 5)
A motion for reconsideration of the said decision was filed by the
petitioner on February 7, 1989 (Rollo, Petition, p. 6) but the same was
denied by the Court of Appeals in its resolution dated March 3, 1989
(Rollo, Annex "B", p. 26).
Hence, this petition.
In its resolution dated November 13, 1989, the Second Division of this
Court gave due course to the petition and required the parties to submit
simultaneously their respective memoranda (Rollo, Resolution, p. 81).
The sole issue in this case is whether or not the Regional Trial Court of
Makati has jurisdiction over the case in question.
The petition is without merit.
Jurisdiction is the power with which courts are invested for administering
justice, that is, for hearing and deciding cases (Velunta vs. Philippine
Constabulary, 157 SCRA 147 [1988]).
131
Jurisdiction in general, is either over the nature of the action, over the
subject matter, over the person of the defendant, or over the issues framed
in the pleadings (Balais vs. Balais, 159 SCRA 37 [1988]).
Jurisdiction over the subject matter is determined by the statute in force
at the time of commencement of the action (De la Cruz vs. Moya, 160
SCRA 538 [1988]).
The trial court's jurisdiction over the case, subject of this review, can not
be questioned.
Sections 10 and 15(a), Rule 110 of the Rules of Court specifically provide
that:
Sec. 10. Place of the commission of the offense. The complaint or
information is sufficient if it can be understood therefrom that the
offense was committed or some of the essential ingredients thereof
occured at some place within the jurisdiction of the court, unless the
particular place wherein it was committed constitutes an essential
element of the offense or is necessary for identifying the offense
charged.
Sec. 15. Place where action is to be instituted. (a) Subject to
existing laws, in all criminal prosecutions the action shall be
instituted and tried in the court of the municipality or territory
where the offense was committed or any of the essential ingredients
thereof took place.
In the case of People vs. Hon. Manzanilla (156 SCRA 279 [1987] cited in
the case of Lim vs. Rodrigo, 167 SCRA 487 [1988]), the Supreme Court
ruled "that jurisdiction or venue is determined by the allegations in the
information."
The information under consideration specifically alleged that the offense
was committed in Makati, Metro Manila and therefore, the same is
controlling and sufficient to vest jurisdiction upon the Regional Trial
Court of Makati. The Court acquires jurisdiction over the case and over
the person of the accused upon the filing of a complaint or information in
court which initiates a criminal action (Republic vs. Sunga, 162 SCRA 191
[1988]).
Moreover, it has been held in the case of Que v. People of the Philippines
(154 SCRA 160 [1987] cited in the case of People vs. Grospe, 157 SCRA
154 [1988]) that "the determinative factor (in determining venue) is the
place of the issuance of the check."
On the matter of venue for violation of Batas Pambansa Bilang 22, the
Ministry of Justice, citing the case of People vs. Yabut (76 SCRA 624
[1977], laid down the following guidelines in Memorandum Circular No.
4 dated December 15, 1981, the pertinent portion of which reads:
(1) Venue of the offense lies at the place where the check was
executed and delivered; (2) the place where the check was written,
signed or dated does not necessarily fix the place where it was executed,
as what is of decisive importance is the delivery thereof which is the final
act essential to its consummation as an obligation; . . . (Res. No. 377, s.
1980, Filtex Mfg. Corp. vs. Manuel Chua, October 28, 1980)." (See The
Law on Bouncing Checks Analyzed by Judge Jesus F. Guerrero, Philippine
Law Gazette, Vol. 7. Nos. 11 & 12, October-December, 1983, p. 14).
It is undisputed that the check in question was executed and delivered by
the petitioner to herein private respondent at Makati, Metro Manila.
However, petitioner argues that the check in question was drawn against
the dollar account of petitioner with a foreign bank, and is therefore, not
covered by the Bouncing Checks Law (B.P. Blg. 22).
But it will be noted that the law does not distinguish the currency
involved in the case. As the trial court correctly ruled in its order dated
July 5, 1988:
Under the Bouncing Checks Law (B.P. Blg. 22), foreign checks, provided
they are either drawn and issued in the Philippines though payable
outside thereof . . . are within the coverage of said law.
It is a cardinal principle in statutory construction that where the law does
not distinguish courts should not distinguish.1âwphi1 Parenthetically, the
rule is that where the law does not make any exception, courts may not
except something unless compelling reasons exist to justify it (Phil. British
Assurance Co., Inc. vs. IAC, 150 SCRA 520 [1987]).
More importantly, it is well established that courts may avail themselves
of the actual proceedings of the legislative body to assist in determining
the construction of a statute of doubtful meaning (Palanca vs. City of
Manila, 41 Phil. 125 [1920]). Thus, where there is doubts as to what a
provision of a statute means, the meaning put to the provision during the
132
legislative deliberation or discussion on the bill may be adopted (Arenas
vs. City of San Carlos, 82 SCRA 318 [1978]).
The records of the Batasan, Vol. III, unmistakably show that the intention
of the lawmakers is to apply the law to whatever currency may be the
subject thereof. The discussion on the floor of the then Batasang
Pambansa fully sustains this view, as follows:
xxx xxx xxx
THE SPEAKER. The Gentleman from Basilan is recognized.
MR. TUPAY. Parliamentary inquiry, Mr. Speaker.
THE SPEAKER. The Gentleman may proceed.
MR. TUPAY. Mr. Speaker, it has been mentioned by one of the
Gentlemen who interpellated that any check may be involved, like U.S.
dollar checks, etc. We are talking about checks in our country. There are
U.S. dollar checks, checks, in our currency, and many others.
THE SPEAKER. The Sponsor may answer that inquiry.
MR. MENDOZA. The bill refers to any check, Mr. Speaker, and this check
may be a check in whatever currency. This would not even be limited to
U.S. dollar checks. The check may be in French francs or Japanese yen or
deutschunorhs. (sic.) If drawn, then this bill will apply.
MR TUPAY. So it include U.S. dollar checks.
MR. MENDOZA. Yes, Mr. Speaker.
xxx xxx xxx
(p. 1376, Records of the Batasan, Volume III; Emphasis supplied).
PREMISES CONSIDERED, the petition is DISMISSED for lack of merit.
 G.R. No. L-14787 January 28, 1961
COLGATE-PALMOLIVE PHILIPPINE, INC., petitioner,
vs.
HON. PEDRO M. GIMENEZ as Auditor General and ISMAEL
MATHAY as AUDITOR OF THE CENTRAL BANK OF THE
PHILIPPINES, respondents.
GUTIERREZ DAVID, J.:
The petitioner Colgate-Palmolive Philippines, Inc. is a corporation duly
organized and existing under Philippine laws engaged in the
manufacture of toilet preparations and household remedies. On
several occasions, it imported from abroad various materials such as
irish moss extract, sodium benzoate, sodium saccharinate precipitated
calcium carbonate and dicalcium phosphate, for use as stabilizers and
flavoring of the dental cream it manufactures. For every importation
made of these materials, the petitioner paid to the Central Bank of the
Philippines the 17% special excise tax on the foreign exchange used
for the payment of the cost, transportation and other charges incident
thereto, pursuant to Republic Act No. 601, as amended, commonly
known as the Exchange Tax Law.
On March 14, 1956, the petitioner filed with the Central Bank three
applications for refund of the 17% special excise tax it had paid in the
aggregate sum of P113,343.99. The claim for refund was based on
section 2 of Republic Act 601, which provides that "foreign exchange
used for the payment of the cost, transportation and/or other charges
incident to the importation into the Philippines of . . . stabilizer and
flavors . . . shall be refunded to any importer making application
therefor, upon satisfactory proof of actual importation under the rules
and regulations to be promulgated pursuant to section seven thereof."
After the applications were processed by the officer-in-charge of the
Exchange Tax Administration of the Central Bank, that official advised,
the petitioner that of the total sum of P113,343.99 claimed by it for
refund, the amount of P23,958.13 representing the 17% special excise
tax on the foreign exchange used to import irish moss extract, sodium
benzoate and precipitated calcium carbonate had been approved.
133
The auditor of the Central Bank, however, refused to pass in audit its
claims for refund even for the reduced amount fixed by the Officer-in-
Charge of the Exchange Tax Administration, on the theory that
toothpaste stabilizers and flavors are not exempt under section 2 of
the Exchange Tax Law.
Petitioner appealed to the Auditor General, but the latter or, December
4, 1958 affirmed the ruling of the auditor of the Central Bank,
maintaining that the term "stabilizer and flavors" mentioned in section
2 of the Exchange Tax Law refers only to those used in the preparation
or manufacture of food or food products. Not satisfied, the petitioner
brought the case to this Court thru the present petition for review.
The decisive issue to be resolved is whether or not the foreign
exchange used by petitioner for the importation of dental cream
stabilizers and flavors is exempt from the 17% special excise tax
imposed by the Exchange Tax Law, (Republic Act No. 601) so as to
entitle it to refund under section 2 thereof, which reads as follows:
SEC, 2. The tax collected under the preceding section on foreign
exchange used for the payment of the cost, transportation and/or
other charges incident to importation into the Philippines of rice,
flour, canned milk, cattle and beef, canned fish, soya beans,
butterfat, chocolate, malt syrup, tapioca, stabilizer and flavors,
vitamin concentrate, fertilizer, poultry feed; textbooks, reference
books, and supplementary readers approved by the Board of
Textbooks and/or established public or private educational
institutions; newsprint imported by or for publishers for use in
the publication of books, pamphlets, magazines and newspapers;
book paper, book cloth, chip board imported for the printing of
supplementary readers (approved by the Board of Textbooks) to
be supplied to the Government under contracts perfected before
the approval of this Act, the quantity thereof to be certified by the
Director of Printing; anesthetics, anti-biotics, vitamins, hormones,
x-ray films, laboratory reagents, biologicals, dental supplies, and
pharmaceutical drugs necessary for compounding medicines;
medical and hospital supplies listed in the appendix to this Act, in
quantities to be certified by the Director of Hospitals as actually
needed by the hospitals applying therefor; drugs and medicines
 listed in the said appendix; and such other drugs and medicines
as may be certified by the Secretary of Health from time to time to
promote and protect the health of the people of the Philippines
shall be refunded to any importer making application therefor,
upon satisfactory proof of actual importation under the rules and
regulations to be promulgated pursuant to section seven
thereof." (Emphasis supplied.)
The ruling of the Auditor General that the term "stabilizer and flavors"
as used in the law refers only to those materials actually used in the
preparation or manufacture of food and food products is based,
apparently, on the principle of statutory construction that "general
terms may be restricted by specific words, with the result that the
general language will be limited by the specific language which
indicates the statute's object and purpose." (Statutory Construction by
Crawford, 1940 ed. p. 324-325.)
The rule, however, is, in our opinion, applicable only to cases where,
except for one general term, all the items in an enumeration belong to
or fall under one specific class. In the case at bar, it is true that the
term "stabilizer and flavors" is preceded by a number of articles that
may be classified as food or food products, but it is likewise true that
the other items immediately following it do not belong to the same
classification. Thus "fertilizer" and "poultry feed" do not fall under the
category of food or food products because they are used in the farming
and poultry industries, respectively.
"Vitamin concentrate" appears to be more of a medicine than food or
food product, for, as matter of fact, vitamins are among those
enumerated in the list of medicines and drugs appearing in the
appendix to the law. It should also here be stated that "cattle", which is
among those listed preceding the term in question, includes not only
those intended for slaughter but also those for breeding purposes.
Again, it is noteworthy that under, Republic Act No. 814 amending the
above-quoted section of Republic Act No. 601, "industrial starch",
which does not always refer to food for human consumption, was
added among the items grouped with "stabilizer and flavors".
134
Thus, on the basis of the grouping of the articles alone, it cannot
validly be maintained that the term "stabilizer and flavors" as used in
the above-quoted provision of the Exchange Tax Law refers only to
those used in the manufacture of food and food products.
This view is supported by the principle "Ubi lex non distinguish nec
nos distinguire debemos", or "where the law does not distinguish,
neither do we distinguish". (Ligget & Myers Tobacco Company vs.
Collector of Internal Revenue, 53 Off. Gaz. No. 15, page 4831).
Since the law does not distinguish between "stabilizer and flavors"
used in the preparation of food and those used in the manufacture of
toothpaste or dental cream, we are not authorized to make any
distinction and must construe the words in their general sense.
The rule of construction that general and unlimited terms are
restrained and limited by particular recitals when used in connection
with them, does not require the rejection of general terms entirely. It is
intended merely as an aid in ascertaining the intention of the
legislature and is to be taken in connection with other rules of
construction. (See Handbook of the Construction and Interpretation of
Laws by Black, p. 215.216, 2nd ed.)
Having arrived at the above conclusion, we deem it now idle to pass
upon the other questions raised by the parties.
WHEREFORE, the decision under review is reversed and the
respondents are hereby ordered to audit petitioners applications for
refund which were approved by the Officer-in-Charge of the Exchange
Tax Administration in the total amount of P23,958.13.
Bengzon, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes
and Dizon, JJ., concur.
Labrador, J., reserves his vote.
 [G.R. No. 89483. August 30, 1990.]
REPUBLIC OF THE PHILIPPINES THRU: THE PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT (PCGG), AFP ANTI-
GRAFT BOARD, COL. ERNESTO A. PUNSALANG and PETER T.
TABANG, Petitioners,
vs.
HON. EUTROPIO MIGRINO, as Presiding Judge, Regional Trial
Court, NCJR, Branch 151, Pasig, Metro Manila and TROADIO
TECSON, Respondents.
CORTES, J.:
This case puts in issue the authority of the Presidential Commission on
Good Government (PCGG), through the New Armed Forces of the
Philippines Anti-Graft Board (hereinafter referred to as the "Board"),
to investigate and cause the prosecution of petitioner, a retired
military officer, for violation of Republic Acts Nos. 3019 and 1379.
Assailed by the Republic in this petition for certiorari, prohibition and/
or mandamus with prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order are the orders of
respondent judge in Civil Case No. 57092 Branch 151 of the Regional
Trial Court of Pasig, Metro Manila: (1) dated June 23, 1989, denying
petitioners’ Motion to Dismiss and Opposition, and (2) dated June 26,
1989, granting private respondent’s application for the issuance of a
writ of preliminary injunction. Thus, the petition seeks the annulment
of the two orders, the issuance of an injunction to enjoin respondent
judge from proceeding with Civil Case No. 57092 and, finally, the
dismissal of the case before the trial court.
The controversy traces its roots to the order of then PCGG Chairman
Jovito R. Salonga, dated May 13, 1986, which created the New Armed
Forces of the Philippines Anti-Graft Board. The Board was created to
"investigate the unexplained wealth and corrupt practices of AFP
personnel, both retired and in active service." The order further stated
that" [t]he Board shall be primarily charged with the task of
investigating cases of alleged violations of the Anti-Graft and Corrupt
135
Practices Act (Republic Act No. 3019, as amended) and shall make the
necessary recommendations to appropriate government agencies and
instrumentalities with respect to the action to be taken thereon based
on its findings."
Acting on information received by the Board, which indicated the
acquisition of wealth beyond his lawful income, private respondent Lt.
Col. Troadio Tecson (ret.) was required by the Board to submit his
explanation/comment together with his supporting evidence by
October 31, 1987 [Annex "B", Petition]. Private respondent requested,
and was granted, several postponements, but was unable to produce
his supporting evidence because they were allegedly in the custody of
his bookkeeper who had gone abroad.
Just the same, the Board proceeded with its investigation and
submitted its resolution, dated June 30, 1988, recommending that
private respondent be prosecuted and tried for violation of Rep. Act
No. 3019, as amended, and Rep. Act No. 1379, as amended.
The case was set for preliminary investigation by the PCGG. Private
respondent moved to dismiss the case on the following grounds: (1)
that the PCGG has no jurisdiction over his person; (2) that the action
against him under Rep. Act No. 1379 has already prescribed; (3) that
E.O. No. 14, insofar as it suspended the provisions of Rep. Act No.
1379 on prescription of actions, was inapplicable to his case; and (4)
that having retired from the AFP on May 9, 1984, he was now beyond
the reach of Rep. Act No. 3019. The Board opposed the motion to
dismiss.
In a resolution dated February 8, 1989, the PCGG denied the motion
to dismiss for lack of merit. Private respondent moved for
reconsideration but this was denied by the PCGG in a resolution dated
March 8, 1989. Private respondent was directed to submit his counter-
affidavit and other controverting evidence on March 20, 1989 at 2:00
p.m.
On March 13, 1989, private respondent filed a petition for prohibition
with preliminary injunction with the Regional Trial Court in Pasig,
Metro Manila. The case was docketed as Case No. 57092 and raffled
to Branch 151, respondent judge’s court. Petitioner filed a motion to
dismiss and opposed the application for the issuance of a writ of
preliminary injunction on the principal ground that the Regional Trial
Court had no jurisdiction over the Board, citing the case of PCGG v.
Peña, G.R. No. 77663, April 12, 1988, 159 SCRA 556. Private
respondent opposed the motion to dismiss. Petitioner replied to the
opposition.
On June 23, 1989, respondent judge denied petitioner’s motion to
dismiss. On June 26, 1989, respondent judge granted the application
for the issuance of a writ of preliminary injunction, enjoining
petitioners from investigating or prosecuting private respondent under
Rep. Acts Nos. 3019 and 1379 upon the filing of a bond in the amount
of Twenty Thousand Pesos (P20,000.00).
Hence, the instant petition.
On August 29, 1989, the Court issued a restraining order enjoining
respondent judge from enforcing his orders dated June 23, 1989 and
June 26, 1989 and from proceeding with Civil Case No. 57092.
Private respondent filed his comment, to which petitioners filed a
reply. A rejoinder to the reply was filed by private Respondent. The
Court gave due course to the petition and the parties filed their
memoranda. Thereafter, the case was deemed submitted.
The issues raised in the petition are as follows:
I.
WHETHER OR NOT RESPONDENT JUDGE GRAVELY ABUSED HIS
D I S C R E T I O N O R A C T E D W I T H O U T O R I N E XC E S S O F
JURISDICTION IN ASSUMING JURISDICTION OVER AND
INTERFERING WITH THE ORDERS AND FUNCTIONS OF THE
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT.
II.
WHETHER, OR NOT RESPONDENT JUDGE GRAVELY ABUSED HIS
D I S C R E T I O N O R A C T E D W I T H O U T O R I N E XC E S S O F
JURISDICTION IN ISSUING THE ASSAILED ORDER DATED JUNE 26,
1989 ENJOINING PETITIONERS FROM INVESTIGATING AND
PROSECUTING PRIVATE RESPONDENT FOR VIOLATION OF
136
REPUBLIC ACT NO. 3019, OTHERWISE KNOWN AS ANTI-GRAFT
AND CORRUPT PRACTICES ACT AND REPUBLIC ACT NO. 1379,
OTHERWISE KNOWN AS AN ACT FOR THE FORFEITURE OF
UNLAWFULLY ACQUIRED PROPERTY [Rollo, p. 19].
As to the first issue, petitioner contends that following the ruling of
the Court in PCGG v. Peña the Board, being a creation and/or
extension of the PCGG, is beyond the jurisdiction of the Regional Trial
Court. On the second issue, petitioner strongly argues that the private
respondent’s case falls within the jurisdiction of the PCGG.
The pivotal issue is the second one. On this point, private respondent’s
position is as follows:
1. . . . he is not one of the subordinates contemplated in
Executive Orders 1 , 2 , 14 and 14-A as the alleged illegal acts being
imputed to him, that of alleged amassing wealth beyond his legal
means while Finance Officer of the Philippine Constabulary, are acts of
his own alone, not connected with his being a crony, business
associate, etc. or subordinate as the petition does not allege so. Hence
the PCGG has no jurisdiction to investigate him.
If indeed private respondent amassed wealth beyond his legal means,
the procedure laid down by Rep. Act 1379 as already pointed out
before be applied. And since, he has been separated from the
government more than four years ago, the action against him under
Republic Act 1379 has already prescribed.
2. . . . no action can be filed anymore against him now under
Republic Act 1379 for recovery of unexplained wealth for the reason
that he has retired more than four years ago.
3. . . . The order creating the AFP Anti-Graft Board (Annex "A",
Petition) is null and void. Nowhere in Executive Orders 1, 2, 14 and
14-A is there any authority given to the commission, its chairman and
members, to create Boards or bodies to be invested with powers
similar to the powers invested with the commission .. [Comment, pp.
6-7; Rollo, pp. 117-118].
1. The most important question to be resolved in this case is
whether or not private respondent may be investigated and caused to
be prosecuted by the Board, an agency of the PCGG, for violation of
Rep. Acts Nos. 3019 and 1379. According to petitioners, the PCGG has
the power to investigate and cause the prosecution of private
respondent because he is a "subordinate" of former President Marcos.
They cite the PCGG’s jurisdiction over —
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the Philippines
or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority,
influence, connections or relationship. [E.O. No. 1, sec. 2.].
Undoubtedly, the alleged unlawful accumulation of wealth was done
during the administration of Pres. Marcos. However, what has to be
inquired into is whether or not private respondent acted as a
"subordinate" of Pres. Marcos within the contemplation of E.O. No. 1,
the law creating the PCGG, when he allegedly unlawfully acquired the
properties.
A close reading of E. O. No. 1 and related executive orders will readily
show what is contemplated within the term “subordinate."
The Whereas Clauses of E. O. No. 1 express the urgent need to recover
the ill-gotten wealth amassed by former President Ferdinand E.
Marcos, his immediate family, relatives, and close associates both here
and abroad.
E.O. No. 2 freezes "all assets and properties in the Philippines in which
former President Marcos and/or his wife, Mrs. Imelda Romualdez
Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation."
Applying the rule in statutory construction known as ejusdem generis,
that is —
137
[W]here general words follow an enumeration of persons or things, by
words of a particular and specific meaning, such general words are not
to be construed in their widest extent, but are to be held as applying
only to persons or things of the same kind or class as those specifically
mentioned [Smith, Bell & Co., Ltd. v. Register of Deeds of Davao, 96
Phil. 53, 58 (1954), citing Black on Interpretation of Laws, 2nd Ed.,
203].
the term "subordinate" as used in E.O. Nos. 1 and 2 would refer to one
who enjoys a close association or relation with former Pres. Marcos
and/or his wife, similar to the immediate family member, relative, and
close associate in E.O. No. 1 and the close relative, business associate,
dummy, agent, or nominee in E.O. No. 2.
Thus, as stated by the Court in Bataan Shipyard & Engineering Co.,
Inc. v. PCGG, G.R. No. 75885, May 27, 1987, 150 SCRA 181, 205-206.
The situations envisaged and sought to be governed [by Proclamation
No. 3 and E.O. Nos. 1, 2 and 14] are self-evident, these being:
1) that" (i)ll gotten properties (were) amassed by the leaders and
supporters of the previous regime" ;
a) more particularly, that" (i)ll-gotten wealth (was) accumulated
by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates, and close associates, . . . located in the
Philippines or abroad, xx (and) business enterprises and entities
(came to be) owned or controlled by them, during . . . (the Marcos)
administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority,
influence, connections or relationship;"
b) otherwise stated, that "there are assets and properties
pertaining to former President Ferdinand E. Marcos, and/or his wife
Mrs. Imelda Romualdez Marcos, their close relatives, subordinates,
business associates, dummies, agents or nominees which had been or
were acquired by them directly or indirectly, through or as a result of
the improper or illegal use of funds or properties owned by the
Government of the Philippines or any of its branches,
instrumentalities, enterprises, banks or financial institutions, or by
taking undue advantage of their office, authority, influence,
connections or relationship, resulting in their unjust enrichment and
causing grave damage and prejudice to the Filipino people and the
Republic of the Philippines" ;
c) that "said assets and properties are in the form of bank
accounts, deposits, trust accounts, shares of stocks, buildings,
shopping centers, condominiums, mansions, residences, estates, and
other kinds of real and personal properties in the Philippines and in
various countries of the world;" and.
2) that certain "business enterprises and properties (were) taken
over by the government of the Marcos Administration or by entities or
persons close to former President Marcos." [Footnotes deleted].
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former
Pres. Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close
association or relation with former Pres. Marcos and/or his wife. This
is so because otherwise the respondent’s case will fall under existing
general laws and procedures on the matter. Rep. Act No. 3019, the
Anti-Graft and Corrupt Practices Act, penalizes the corrupt practices of
any public officer. Under Rep. Act No. 1379 (An Act Declaring
Forfeited in Favor of the State Any Property Found to Have Been
Unlawfully Acquired By Any Public Officer or Employee and Providing
for the Procedure Therefor), whenever any public officer or employee
has acquired during his incumbency an amount of property which is
manifestly out of proportion to his salary as such public officer or
employee and to his other lawful income and the income from
legitimately acquired property, said property shall be presumed prima
facie to have been unlawfully acquired [Sec. 2]. The Solicitor General
shall file the petition and prosecute the case in behalf of the Republic,
after preliminary investigation by the provincial or city prosecutor
[Ibid].
Moreover, the record shows that private respondent was being
investigated for unlawfully acquired wealth under Rep. Acts Nos. 3019
and 1379, and not under E.O. Nos. 1, 2, 14 and 14-A.
138
Since private respondent was being investigated by the PCGG through
the AFP Anti-Graft Board it would have been presumed that this was
under Rep. Acts Nos. 3019 and 1379 in relation to E.O. Nos. 1, 2, 14
and 14-A. But the record itself belies this presumption:
(a) The letter of the chairman of the AFP Anti-Graft Board to
private respondent, dated October 16, 1987, states: "This letter is in
connection with the alleged information received by the AFP Anti-
Graft Board indicating your acquisition of wealth beyond legal means
of income in violation of Rep. Act No. 3019 known as the Anti-Graft
and Corrupt Practices Act." [Rollo, p. 39].
(b) The Resolution dated June 30, 1988 of the Board categorically
states:
I. PRELIMINARY STATEMENT:
This refers to the case against Col Troadio B. Tecson PC (Ret) for
alleged unexplained wealth pursuant to R.A. 3019, as amended,
otherwise known as Anti-Graft and Corrupt Practices Act and R.A.
1379, as amended, otherwise known as the "Act for Forfeiture of
Unlawfully Acquired Property." [Rollo, p. 43].
The resolution alleges that private respondent unlawfully accumulated
wealth by taking advantage of his office as Finance Officer of the
Philippine Constabulary. No attempt is made in the Board’s resolution
to link him or his accumulation of wealth to former Pres. Marcos and/
or his wife.
(c) The letter of the Board chairman to the chairman of the PCGG,
dated July 28, 1988, is clear:
Respectfully transmitted herewith for the prosecution before the
Sandiganbayan is the case folder of COLONEL TROADIO TECSON
(Ret) who after preliminary investigation of the case by the Board,
found a prima facie evidence against subject officer for violating
Section 8, R.A. 3019, as amended by BP 195, otherwise known as the
Anti-Graft and Corrupt Practices Act and R.A. 1379, otherwise known
as an Act for the Forfeiture of Unlawfully Acquired Property." [Rollo, p.
46].

Moreover, from the allegations of petitioner in its memorandum, it
would appear that private respondent accumulated his wealth for his
own account. Petitioner quoted the letter of Ignacio Datahan, a retired
PC sergeant, to General Fidel Ramos, the material portion of which
reads:
. . . After an official in the military unit received an Allotment Advice
the same signed a cash advance voucher, let us say in the amount of
P5,000.00. Without much ado, outright, Col. Tecson paid the amount.
The official concerned was also made to sign the receipt portion on
the voucher the amount of which was left blank. Before the voucher is
passed for routine processing by Mrs. Leonor Cagas, clerk of Col.
Tecson and its facilitator, the maneuver began. The amount on the
face of the cash advance voucher is altered or superimposed. The
original amount of P5,000.00 was now made say, P95,000.00. So it
was actually the amount of P95,000.00 that appeared on the records.
The difference of P90,000.00 went to the syndicate.
. . . Boy Tanyag, bookkeeper in Col. Tecson’s office took care of the
work.
. . . In the liquidation of the altered cash advance amount, names of
persons found in the Metropolitan Manila Telephone Directory with
fictitious addresses appeared as recipients or payees. Leonor and Boy
got their shares on commission basis of the looted amount while the
greater part went to Col. Tecson. [Rollo, pp. 184-185.].
Clearly, this alleged unlawful accumulation of wealth is not that
contemplated in E.O. Nos. 1, 2, 14 and 14-A.
2. It will not do to cite the order of the PCGG Chairman, dated
May 13, 1986, creating the Board and authorizing it to investigate the
unexplained wealth and corrupt practices of AFP personnel, both
retired and in active service, to support the contention that PCGG has
jurisdiction over the case of private Respondent. The PCGG cannot do
more than what it was empowered to do. Its powers are limited. Its
task is limited to the recovery of the ill-gotten wealth of the Marcoses,
their relatives and cronies. The PCGG cannot, through an order of its
139
chairman, grant itself additional powers — powers not contemplated
in its enabling law.
3. Petitioner assails the trial court’s cognizance of the petition
filed by private Respondent. Particularly, petitioner argues that the
trial court cannot acquire jurisdiction over the PCGG. This matter has
already been settled in Peña, supra, where the Court ruled that those
who wish to question or challenge the PCGG’s acts or orders must seek
recourse in the Sandiganbayan, which is vested with exclusive and
original jurisdiction. The Sandiganbayan’s decisions and final orders
are in turn subject to review on certiorari exclusively by this Court.
[Ibid, at pp. 564-565].
The ruling in Peña was applied in PCGG v. Aquino, G.R. No. 77816,
June 30, 1988, 163 SCRA 363, Soriano III v. Yuson, G.R. No. 74910
(and five other cases), August 10, 1988, 164 SCRA 226 and Olaguer v.
RTC, NCJR, Br. 48, G.R. No. 81385, February 21, 1989, 170 SCRA
478, among others, to enjoin the regional trial courts from interfering
with the actions of the PCGG.
Respondent judge clearly acted without or in excess of his jurisdiction
when he took cognizance of Civil Case No. 57092 and issued the writ
of preliminary injunction against the PCGG.
4. Thus, we are confronted with a situation wherein the PCGG
acted in excess of its jurisdiction and, hence, may be enjoined from
doing so, but the court that issued the injunction against the PCGG has
not been vested by law with jurisdiction over it and, thus, the
injunction issued was null and void.
The nullification of the assailed order of respondent judge issuing the
writ of preliminary injunction is therefore in order. Likewise,
respondent judge must be enjoined from proceeding with Civil Case
No. 57092.
But in view of the patent lack of authority of the PCGG to investigate
and cause the prosecution of private respondent for violation of Rep.
Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
proceeding with the case, without prejudice to any action that may be
taken by the proper prosecutory agency. The rule of law mandates that
an agency of government be allowed to exercise only the powers
granted it.
5. The pronouncements made above should not be taken to mean
that the PCGG’s creation of the AFP Anti-Graft Board is a nullity and
that the PCGG has no authority to investigate and cause the
prosecution of members and former members of the Armed Forces of
the Philippines for violations of Rep. Acts Nos. 3019 and 1379. The
PCGG may investigate and cause the prosecution of active and retired
members of the AFP for violations of Rep. Acts Nos. 3019 and 1379
only in relation to E.O. Nos. 1, 2, 14 and 14-A, i.e., insofar as they
involve the recovery of the ill-gotten wealth of former Pres. Marcos
and his family and "cronies." But the PCGG would not have
jurisdiction over an ordinary case falling under Rep. Acts Nos. 3019
and 1379, as in the case at bar. E.O. Nos. 1, 2, 14 and 14-A did not
envision the PCGG as the investigator and prosecutor of all unlawful
accumulations of wealth. The PCGG was created for a specific and
limited purpose, as we have explained earlier, and necessarily its
powers must be construed with this in mind.
6. In his pleadings, private respondent contends that he may no
longer be prosecuted because of prescription. He relies on section 2 of
Rep. Act No. 1379 which provides that" [t]he right to file such petition
[for forfeiture of unlawfully acquired wealth] shall prescribe within
four years from the date of resignation, dismissal or separation or
expiration of the term of the officer or employee concerned." He
retired on May 9, 1984, or more than six (6) years ago. However, it
must be pointed out that section 2 of Rep. Act No. 1379 should be
deemed amended or repealed by Article XI, section 15 of the 1987
Constitution which provides that" [t]he right of the State to recover
properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by
prescription, laches, or estoppel." Considering that sec. 2 of Rep. Act
No. 1379 was deemed amended or repealed before the prescriptive
period provided therein had lapsed insofar as private respondent is
concerned, we cannot say that he had already acquired a vested right
that may not be prejudiced by a subsequent enactment.
Moreover, to bar the Government from recovering ill-gotten wealth
would result in the validation or legitimization of the unlawful
140
acquisition, a consequence at variance with the clear intent of Rep. Act
No. 1379, which provides:
SEC. 11. Laws on prescription. — The laws concerning
acquisitive prescription and limitation of actions cannot be
invoked by, nor shall they benefit the respondent, in respect to
any property unlawfully acquired by him.
Thus, we hold that the appropriate prosecutory agencies, i.e., the city
or provincial prosecutor and the Solicitor General under sec. 2 of Rep.
Act No. 1379, may still investigate the case and file the petition for the
forfeiture of unlawfully acquired wealth against private respondent,
now a private citizen. (On the other hand, as regards respondents for
violations of Rep. Acts Nos. 3019 and 1379 who are still in the
government service, the agency granted the power to investigate and
prosecute them is the Office of the Ombudsman [Rep. Act No. 6770]).
Under Presidential Decree No. 1606, as amended, and Batas
Pambansa Blg. 195 violations of Rep. Acts Nos. 3019 and 1379 shall
be tried by the Sandiganbayan.
7. The Court hastens to add that this decision is without
prejudice to the prosecution of private respondent under the pertinent
provisions of the Revised Penal Code and other related penal laws.
WHEREFORE, the order of respondent judge dated June 26, 1989 in
Civil Case No. 57092 is NULLIFIED and SET ASIDE. Respondent judge
is ORDERED to dismiss Civil Case No. 57092. The temporary
restraining order issued by the Court on August 29, 1989 is MADE
PERMANENT. The PCGG is ENJOINED from proceeding with the
investigation and prosecution of private respondent in I.S. No. 37,
without prejudice to his investigation and prosecution by the
appropriate prosecutory agency.
SO ORDERED.
 G.R. No. L-47757-61 January 28, 1980
THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th
Assistant of Provincial Bohol VICENTE DE LA SERNA. JR., as
complainant all private prosecutor, petitioners,
vs.
HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First
Instance of Bohol Branch II, ANO DACULLO, GERONIMO OROYAN,
MARIO APARICI, RUPERTO CAJES and MODESTO S SUELLO,
respondents.
AQUINO, J.:
The legal issue in this case is whether Presidential Decree No. 772,
which penalizes squatting and similar acts, applies to agricultural
lands. The decree (which took effect on August 20, 1975) provides:
SECTION 1. Any person who, with the use of force,
intimidation or threat, or taking advantage of the absence or
tolerance of the landowner, succeeds in occupying or possessing
the property of the latter against his will for residential,
commercial or any other purposes, shall be punished by an
imprisonment ranging from six months to one year or a fine of
not less than one thousand nor more than five thousand pesos at
the discretion of the court, with subsidiary imprisonment in case
of insolvency. (2nd paragraph is omitted.)
The record shows that on October 25, 1977 Fiscal Abundio R. Ello
filed with the lower court separate informations against sixteen
persons charging them with squatting as penalized by Presidential
Decree No. 772. The information against Mario Aparici which is
similar to the other fifteen informations, reads:
That sometime in the year 1974 continuously up to the present
at barangay Magsaysay, municipality of Talibon, province of
Bohol, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with stealth and strategy,
enter into, occupy and cultivate a portion of a grazing land
physically occupied, possessed and claimed by Atty. Vicente de
141
la Serna, Jr. as successor to the pasture applicant Celestino de
la Serna of Pasture Lease Application No. 8919, accused's
entrance into the area has been and is still against the win of
the offended party; did then and there willfully, unlawfully,
and feloniously squat and cultivate a portion of the said
grazing land; said cultivating has rendered a nuisance to and
has deprived the pasture applicant from the full use thereof for
which the land applied for has been intended, that is
preventing applicant's cattle from grazing the whole area,
thereby causing damage and prejudice to the said applicant-
possessor-occupant, Atty. Vicente de la Serna, Jr. (sic)
Five of the informations, wherein Ano Dacullo, Geronimo
Oroyan, Mario Aparici, Ruperto Cajes and Modesto Suello were
the accused, were raffled to Judge Vicente B. Echaves, Jr. of
Branch II (Criminal Cases Nos. 1824, 1828, 1832, 1833 and
1839, respectively).
Before the accused could be arraigned, Judge Echaves motu proprio
issued an omnibus order dated December 9, 1977 dismissing the five
informations on the grounds (1) that it was alleged that the accused
entered the land through "stealth and strategy", whereas under the
decree the entry should be effected "with the use of force, intimidation
or threat, or taking advantage of the absence or tolerance of the
landowner", and (2) that under the rule of ejusdem generis the decree
does not apply to the cultivation of a grazing land.
Because of that order, the fiscal amended the informations by using in
lieu of "stealth and strategy" the expression "with threat, and taking
advantage of the absence of the ranchowner and/or tolerance of the
said ranchowner". The fiscal asked that the dismissal order be
reconsidered and that the amended informations be admitted.
The lower court denied the motion. It insisted that the phrase "and for
other purposes" in the decree does not include agricultural purposes
because its preamble does not mention the Secretary of Agriculture
and makes reference to the affluent class.
From the order of dismissal, the fiscal appealed to this Court under
Republic Act No. 5440. The appeal is devoid of merit.

We hold that the lower court correctly ruled that the decree does not
apply to pasture lands because its preamble shows that it was
intended to apply to squatting in urban communities or more
particularly to illegal constructions in squatter areas made by well-to-
do individuals. The squating complained of involves pasture lands in
rural areas.
The preamble of the decree is quoted below:
WHEREAS, it came to my knowledge that despite the issuance of
Letter of Instruction No. 19 dated October 2, 1972, directing the
Secretaries of National Defense, Public Work. 9 and
communications, Social Welfare and the Director of Public Works,
the PHHC General Manager, the Presidential Assistant on
Housing and Rehabilitation Agency, Governors, City and
Municipal Mayors, and City and District Engineers, "to remove
an illegal constructions including buildings on and along esteros
and river banks, those along railroad tracks and those built
without permits on public and private property." squatting is still
a major problem in urban communities all over the country;
WHEREAS, many persons or entities found to have been
unlawfully occupying public and private lands belong to the
affluent class;
WHEREAS, there is a need to further intensify the government's
drive against this illegal and nefarious practice.
It should be stressed that Letter of Instruction No. 19 refers to illegal
constructions on public and private property. It is complemented by
Letter of Instruction No. 19-A which provides for the relocation of
squatters in the interest of public health, safety and peace and order.
On the other hand, it should be noted that squatting on public
agricultural lands, like the grazing lands involved in this case, is
punished by Republic Act No. 947 which makes it unlawful for any
person, corporation or association to forcibly enter or occupy public
agricultural lands. That law provides:
142
SECTION 1. It shall be unlawful for any person corporation or
association to enter or occupy, through force, intimidation,
threat, strategy or stealth, any public agriculture land including
such public lands as are granted to private individuals under the
provision of the Public Land Act or any other laws providing for
the of public agriculture lands in the Philippines and are duly
covered by the corresponding applications for the
notwithstanding standing the fact that title thereto still remains
in the Government or for any person, natural or judicial to
investigate induce or force another to commit such acts.
Violations of the law are punished by a fine of not exceeding one
thousand or imprisonment for not more than one year, or both such
fine and imprisonment in the discretion of the court, with subsidiary
imprisonment in case of insolvency. (See People vs. Lapasaran 100
Phil. 40.)
The rule of ejusdem generis (of the same kind or species) invoked by
the trial court does not apply to this case. Here, the intent of the
decree is unmistakable. It is intended to apply only to urban
communities, particularly to illegal constructions. The rule of ejusdem
generis is merely a tool of statutory construction which is resorted to
when the legislative intent is uncertain (Genato Commercial Corp. vs.
Court of Tax Appeals, 104 Phil. 615,618; 28 C.J.S. 1049-50).
WHEREFORE, the trial court's order of dismissal is affirmed. No costs.
SO ORDERED.
 January 20, 2016 G.R. No. 180235
ALTA VISTA GOLF AND COUNTRY CLUB, Petitioner,
vs.
THE CITY OF CEBU, HON. MAYOR TOMAS R. OSMEÑA, in his
capacity as Mayor of Cebu, and TERESITA C. CAMARILLO, in her
capacity as the City Treasurer, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is a Petition for Review on Certiorari of the
Resolution1 dated March 14, 2007 and the Order2 dated October 3,
2007 of the Regional Trial Court (RTC), Cebu City, Branch 9 in Civil
Case No. CEB-31988, dismissing the Petition for Injunction,
Prohibition, Mandamus, Declaration of Nullity of Closure Order,
Declaration of Nullity of Assessment, and Declaration of Nullity of
Section 42 of Cebu City Tax: Ordinance, with Prayer for Temporary
Restraining Order and Writ of Preliminary Injunction3 filed by
petitioner Alta Vista Golf and Country Club against respondents City of
Cebu (Cebu City), then Cebu City Mayor Tomas R. Osmeña (Osmeña),
and then Cebu City Treasurer Teresita Camarillo (Camarillo).
Petitioner is a non-stock and non-profit corporation operating a golf
course in Cebu City.
On June 21, 1993, the Sangguniang Panlungsod of Cebu City enacted
City Tax: Ordinance No. LXIX, otherwise known as the "Revised
Omnibus Tax: Ordinance of the City of Cebu" (Revised Omnibus Tax:
Ordinance). Section 42 of the said tax ordinance on amusement tax
was amended by City Tax Ordinance Nos. LXXXII4 and LXXXIV5
(which were enacted by the Sangguniang Panlungsod of Cebu City on
December 2, 1996 and April 20, 1998, respectively6) to read as
follows:
Section 42. Rate of Tax. - There shall be paid to the Office of the
City Treasurer by the proprietors, lessees or operators of theaters,
cinemas, concert halls, circuses and other similar places of
entertainment, an amusement tax at the rate of thirty percent
143
(30%), golf courses and polo grounds at the rate of twenty
percent (20% ), of their gross receipts on entrance, playing green,
and/or admission fees; PROVIDED, HOWEVER, That in case of
movie premieres or gala shows for the benefit of a charitable
institution/foundation or any government institution where
higher admission fees are charged, the aforementioned rate of
thirty percent (30%) shall be levied against the gross receipts
based on the regular admission fees, subject to the approval of the
Sangguniang Panlungsod; PROVIDED FURTHER, That in case
payment of the amusement tax is made promptly on or before the
date hereinbelow prescribed, a rebate of five percent (5%) on the
aforementioned gross receipts shall be given to the proprietors,
lessees or operators of theaters; PROVIDED FURTHERMORE, that
as an incentive to theater operators who own the real property
and/or building where the theater is located, an additional one
percent (1 %) rebate shall be given to said operator/real property
owner concerned for as long as their theater/movie houses are
then (10) years old or older or the theater or movie house is
located at the city's redevelopment area bounded on the north by
Gen. Maxilom Street up to the port area; on the south by V. Rama
Avenue up to San Nicolas area; and on the west by B. Rodriguez
St. and General Maxilom Avenue; PROVIDED FINALLY, that the
proceeds of this additional one percent (1 %) rebate shall be used
by the building/property owner-theater operator to modernize
their theater facilities. (Emphases supplied.)
In an Assessment Sheet7 dated August 6, 1998, prepared by Cebu City
Assessor Sandra I. Po, petitioner was originally assessed deficiency
business taxes, fees, and other charges for the year 1998, in the total
amount of P3,820,095.68, which included amusement tax on its golf
course amounting to P2,612,961.24 based on gross receipts of
P13,064,806.20.8
Through the succeeding years, respondent Cebu City repeatedly
attempted to collect from petitioner its deficiency business taxes, fees,
and charges for 1998, a substantial portion of which consisted of the
amusement tax on the golf course. Petitioner steadfastly refused to pay
the amusement tax arguing that the imposition of said tax by Section
42 of the Revised Omnibus Tax Ordinance, as amended, was irregular,
improper, and illegal. Petitioner reasoned that under the Local
Government Code, amusement tax can only be imposed on operators (Emphasis supplied.)
of theaters, cinemas, concert halls, or places where one seeks to
entertain himself by seeing or viewing a show or performance. Petitioner, through counsel, wrote respondent Camarillo a letter1
Petitioner further cited the ruling in Philippine Basketball Association dated October 17, 2005 still disputing the amusement tax assessment
(PBA) v. Court of Appeals9 that under Presidential Decree No. 231, on its golf course for 1998 for being illegal. Petitioner, in a subsequent
otherwise known as the Lo.cal Tax Code of 1973, the province could letter dated November 30, 2005, proposed that:
only impose amusement tax on admission from the proprietors,
lessees, or operators of theaters, cinematographs, concert halls, While the question of the legality of the amusement tax on golf
circuses, and other places of amusement, but not professional courses is still unresolved, may we propose that Alta Vista Golf and
basketball games. Professional basketball games did not fall under the Country Club settle first the other assessments contained in your
same category as theaters, cinematographs, concert halls, and circuses Assessment Sheet issued on October 11, 2005.
as the latter basically belong to artistic forms of entertainment while
the former catered to sports and gaming. At this early stage, we also request that pending resolution of the
legality of the amusement tax imposition on golf courses in [the
Through a letter dated October 11, 2005, respondent Camarillo Revised Omnibus Tax Ordinance, as amended], Alta Vista Golf and
sought to collect once more from petitioner deficiency business taxes, Country Club be issued the required Mayor's and/or Business Permit.
fees, and charges for the year 1998, totaling P2,981,441.52, computed
as follows: Respondent Camarillo treated the letter dated October 17, 2005 of
petitioner as a Protest of Assessment and rendered on December 5,
Restaurant - P4,021,830.65 P 40,950.00 2005 her ruling denying said Protest on the following grounds: (a) a
Permit Fee 2,000.00 more thorough and comprehensive reading of the PBA case would
Liquor-Pl,940,283.80 20,160.00 reveal that the Court actually ruled therein that PBA was liable to pay
Permit Fee 2,000.00 amusement tax, but to the national government, not the local
Commission/Other Income 14,950.00 government; (b) section 42 of the Revised Omnibus Tax Ordinance, as
P 1,262,764.28 amended, enjoyed the presumption of constitutionality and petitioner
Permit Fee 1,874.00 failed to avail itself of the remedy under Section 187 of the Local
Retail Cigarettes - P42,076. 11 - Permit 84.15 Government Code to challenge the legality or validity of Section 42 of
Non-Securing of Permit 979.33 the Revised Omnibus Tax Ordinance, as amended, by filing an appeal
Sub-Total P 82,997.98 with the Secretary of Justice within 30 days from effectivity of said
Less: Payment based on computer assessment 74,858.61 ordinance; and ( c) the Office of the City Attorney issued a letter dated
Short payment P 12,723.18 July 9, 2004 affirming respondent Camarillo's position that petitioner
25% surcharge 3,180.80 was liable to pay amusement tax on its golf course.13 Ultimately,
72% interest 11,450.00 respondent Camarillo held:
Penalty for understatement 500.00
Amount Due P 27 ,854.85 WHEREFORE, upon consideration of the legal grounds as above-
Add: Amusement Tax on golf course P 1,373,761.24 mentioned, we reiterate our previous stand on the validity of the
25% surcharge (P6,868,806.20 x 20%) 343,440.31 ASSESSMENT SHEET pertaining to the Tax Deficiencies for CY 1998
72% Interest 1,236,385.12 and this ruling serve as the FINAL DEMAND for immediate settlement
2,953,586.67 and payment of your amusement tax liabilities and/or delinquencies
GRAND TOTAL P 2,981,441.5210 otherwise we will constrained (sic) the non-issuance of a Mayor's
144
Business Permit for nonpayment of the said deficiency on amusement
tax and/or other tax liabilities as well as to file the appropriate filing
of administrative and judicial remedies for the collection of the said
tax liability and the letter treated as a Protest of Assessment that was
duly submitted before this office is hereby DENIED.14
Shortly after, on January 12, 2006, petitioner was served with a
Closure Order15 dated December 28, 2005 issued by respondent City
Mayor Osmeña. According to the Closure Order, petitioner committed
blatant violations of the laws and Cebu City Ordinances, to wit:
1. Operating a business without a business permit for five (5)
years, from year 2001-2005, in relation to Chapters I and II and
the penalty clauses under Sections 4, 6, 8, 66 (f) and 114 of the
City Tax Ordinance No. 69, otherwise known as the REVISED
CITY TAX ORDINANCE OF THE CITY OF CEBU, as amended By
C.O. 75;
2. Nonpayment of deficiency on Business Taxes and Fees
amounting to Seventeen Thousand Four Hundred Ninety-Nine
Pesos and Sixty-Four Centavos (Php17,499.64), as adjusted,
despite repeated demands in violation [of] Sections 4 and 8 of
City Tax Ordinance No. 69, as amended;
3. Nonpayment of deficiency on Amusement Tax and the penalties
relative therewith totaling Two Million Nine Hundred Fifty-Three
Thousand Five Hundred Eighty-Six Pesos and Eighty-Six Centavos
(Php2,953,586.86) in violation of Sections 4 and 8 in relation to
Section 42 of City Tax Ordinance No. 69, as amended, business
permit-violation of the Article 172, Revised Penal Code of the
Philippines. (Emphases supplied.)
The Closure Order established respondent Mayor Osmeña's authority
for issuance of the same and contained the following directive:
As the chief executive of the City, the Mayor has the power and duty
to: Enforce all laws and ordinances relative to the governance of the
city x x x and, in addition to the foregoing, shall x x x Issue such
executive orders for the faithful and appropriate enforcement and
execution of laws and ordinances x x x.1âwphi1 These are undeniable
145
in the LOCAL GOVERNMENT CODE, Section 455, par. (2) and par. (2)
(iii).
“Not only that, these powers can be exercised under the
general welfare clause of the Code, particularly Section 16
thereof, where it is irrefutable that "every government unit
shall exercise the powers expressly granted, those necessarily
implied therefrom, as well as powers necessary, appropriate, or
incidental of its efficient and effective governance, and those
which are essential to the promotion of the general welfare."
This CLOSURE ORDER precisely satisfies these legal precedents.
Hence now, in view whereof, your business establishment is hereby
declared closed in direct contravention of the above-specified laws and
city ordinances. Please cease and desist from further operating your
business immediately upon receipt of this order.
This closure order is without prejudice to the constitutional/statutory
right of the City to file criminal cases against corporate officers, who
act for and its behalf, for violations of Section 114 of the REVISED
CITY TAX ORDINANCE OF THE CITY OF CEBU and Section 516 of the
LOCAL GOVERNMENT CODE, with penalties of imprisonment and/or
fine.
FOR STRICT AND IMMEDIATE COMPLIANCE.
The foregoing developments prompted petitioner to file with the RTC
on January 13, 2006 a Petition for Injunction, Prohibition, Mandamus,
Declaration of Nullity of Closure Order, Declaration of Nullity of
Assessment, and Declaration of Nullity of Section 42 of Cebu City Tax
Ordinance, with Prayer for Temporary Restraining Order and Writ of
Preliminary Injunction, against respondents, which was docketed as
Civil Case No. CEB-31988.17 Petitioner eventually filed an Amended
Petition on January 19, 2006.18 Petitioner argued that the Closure
Order is unconstitutional as it had been summarily issued in violation
of its right to due process; a city mayor has no power under the Local
Government Code to deny the issuance of a business permit and order
the closure of a business for nonpayment of taxes; Section 42 of the
Revised Omnibus Tax Ordinance, as amended, is null and void for
being ultra vires or beyond the taxing authority of respondent Cebu
City, and consequently, the assessment against petitioner for
amusement tax for 1998 based on said Section 42 is illegal and
unconstitutional; and assuming arguendo that respondent Cebu City
has the power to impose amusement tax on petitioner, such tax for
1998 already prescribed and could no longer be enforced.
Respondents filed a Motion to Dismiss based on the grounds of (a)
lack of jurisdiction of the RTC over the subject matter; (b) non-
exhaustion of administrative remedies; (c) noncompliance with
Section 187 of the Local Government Code, which provides the
procedure and prescriptive periods for challenging the validity of a
local tax ordinance; (d) noncompliance with Section 252 of the Local
Government Code and Section 75 of Republic Act No. 3857, otherwise
known as the Revised Charter of the City of Cebu, requiring payment
under protest of the tax assessed; and (e) failure to establish the
authority of Ma. Theresa Ozoa (Ozoa) to institute the case on behalf
of petitioner.19
In its Opposition to the Motion to Dismiss, petitioner countered that
the RTC, a court of general jurisdiction, could take cognizance of its
Petition in Civil Case No. CEB-31988, which not only involved the
issue of legality or illegality of a tax ordinance, but also sought the
declaration of nullity of the Closure Order and the issuance of writs of
injunction and prohibition. Petitioner likewise asserted that Section
195 of the Local Government Code on the protest of assessment does
not require payment under protest. Section 252 of the same Code
invoked by respondents applies only to real property taxes. In
addition, petitioner maintained that its Petition in Civil Case No.
CEB-31988 could not be barred by prescription. There is nothing in
the Local Government Code that could deprive the courts of the power
to determine the constitutionality or validity of a tax ordinance due to
prescription. It is the constitutional duty of the courts to pass upon the
validity of a tax ordinance and such duty cannot be limited or
restricted. Petitioner further contended that there is no need for
exhaustion of administrative remedies given that the issues involved
are purely legal; the notice of closure is patently illegal for having
been issued without due process; and there is an urgent need for
judicial intervention. Lastly, petitioner pointed out that there were
sufficient allegations in the Petition that its filing was duly authorized
by petitioner. At any rate, petitioner already attached to its Opposition
146
its Board Resolution No. 104 authorizing Ozoa to file a case to nullify
the Closure Order. Thus, petitioner prayed for the denial of the Motion
to Dismiss.20
Respondents, in their Rejoinder to Petitioner's Opposition to the
Motion to Dismiss,21 asserted that the Closure Order was just a
necessary consequence of the nonpayment by petitioner of the
amusement tax assessed against it. The Revised Omnibus Tax
Ordinance of respondent Cebu City directs that no permit shall be
issued to a business enterprise which made no proper payment of tax
and, correspondingly, no business enterprise may be allowed to
operate or continue to operate without a business permit. The
fundamental issue in the case was still the nonpayment by petitioner
of amusement tax. Respondents relied on Reyes v. Court of Appeals,22
in which the Court categorically ruled that the prescriptive periods
fixed in Section 187 of the Local Government Code are mandatory and
prerequisites before seeking redress from a competent court. Section
42 of the Revised Omnibus Tax Ordinance, as amended, was passed on
April 20, 1998, so the institution by petitioner of Civil Case No.
CEB-31988 before the RTC on January 13, 2006 - without payment
under protest of the assessed amusement tax and filing of an appeal
before the Secretary of Justice within 30 days from the effectivity of
the Ordinance - was long barred by prescription.
After filing by the parties of their respective Memorandum, the RTC
issued an Order23 dated March 16, 2006 denying the prayer of
petitioner for issuance of a Temporary Restraining Order (TRO). The
RTC found that when the business permit of petitioner expired and it
was operating without a business permit, it ceased to have a legal
right to do business. The RTC affirmed respondent Mayor Osmeña's
authority to issue or grant business licenses and permits pursuant to
the police power inherent in his office; and such authority to issue or
grant business licenses and permits necessarily included the authority
to suspend or revoke or even refuse the issuance of the said business
licenses and permits in case of violation of the conditions for the
issuance of the same. The RTC went on to hold that:
[Petitioner] was given opportunities to be heard when it filed a protest
[of] the assessment which was subsequently denied. To the mind of
this court, this already constitutes the observance of due process and
that [petitioner] had already been given the opportunity to be heard.
Due process and opportunity to be heard does not necessarily mean
winning the argument in one's favor but to be given the fair chance to
explain one's side or views with regards [to] the matter in issue, which
in this case is the legality of the tax assessment.
It is therefore clear that when this case was filed, [petitioner] had no
more legal right in its favor for the courts to protect. It would have
been a different story altogether had [petitioner] paid the tax
assessment for the green fees even under protest and despite payment
and [respondent] Mayor refused the issuance of the business permit
because all the requisites for the issuance of the said permit are all
complied with.24
On March 20, 2006, petitioner paid under protest to respondent Cebu
City, through respondent Camarillo, the assessed amusement tax, plus
penalties, interest, and surcharges, in the total amount of
P2,750,249.17.25
Since the parties agreed that the issues raised in Civil Case No.
CEB-31988 were all legal in nature, the RTC already considered the
case submitted for resolution after the parties filed their respective
Memorandum.26
On March 14, 2007, the R TC issued a Resolution granting the Motion
to Dismiss of respondents. Quoting from Reyes and Hagonoy Market
Vendor Association v. Municipality of Hagonoy, Bulacan,27 the RTC
sustained the position of respondents that Section 187 of the Local
Government Code is mandatory. Thus, the RTC adjudged:
From the above cited cases, it can be gleaned that the period in the
filing of the protests is important. In other words, it is the considered
opinion of this court [that] when a taxpayer questions the validity of a
tax ordinance passed by a local government legislative body, a
different procedure directed in Section 187 is to be followed. The
reason for this could be because the tax ordinance is clearly different
from a law passed by Congress. The local government code has set
several limitations on the taxing power of the local government
legislative bodies including the issue of what should be taxed.
147
In this case, since the Petitioner failed to comply with the procedure
outlined in Section 187 of the Local Government Code and the fact
that this case was filed way beyond the period to file a case in court,
then this court believes that the action must fail.
Because of the procedural infirmity in bringing about this case to the
court, then the substantial issue of the propriety of imposing
amusement taxes on the green fees could no longer be determined.
WHEREFORE, in view of the aforegoing, this case is hereby
DISMISSED.28
The RTC denied the Motion for Reconsideration of petitioner in an
Order dated October 3, 2007.
Petitioner is presently before the Court on pure questions of law, viz.:
I. WHETHER OR NOT THE POWER OF JUDICIAL REVIEW
OVER THE VALIDITY OF A LOCAL TAX ORDINANCE HAS
BEEN RESTRICTED BY SECTION 187 OF THE LOCAL
GOVERNMENT CODE.
II. WHETHER OR NOT THE CITY OF CEBU OR ANY LOCAL
GOVERNMENT CAN VALIDLY IMPOSE AMUSEMENT TAX TO
THE ACT OF PLAYING GOLF.29
There is merit in the instant Petition.
The RTC judgment on pure questions of law may be directly appealed
to this Court via a petition for review on certiorari.
Even before the RTC, the parties already acknowledged that the case
between them involved only questions of law; hence, they no longer
presented evidence and agreed to submit the case for resolution upon
submission of their respective memorandum.
It is incontestable that petitioner may directly appeal to this Court
from the judgment of the RTC on pure questions of law via its Petition
for Review on Certiorari. Rule 41, Section 2(c) of the Rules of Court
provides that "[i]n all cases where only questions of law are raised or
involved, the appeal shall be to the Supreme Court by petition for
review on certiorari in accordance with Rule 45." As the Court
declared in Bonifacio v. Regional Trial Court of Makati, Branch 14930:
The established policy of strict observance of the judicial hierarchy of
courts, as a rule, requires that recourse must first be made to the
lowerranked court exercising concurrent jurisdiction with a higher
court. A regard for judicial hierarchy clearly indicates that petitions for
the issuance of extraordinary writs against first level courts should be
filed in the RTC and those against the latter should be filed in the
Court of Appeals. The rule is not iron-clad, however, as it admits of
certain exceptions.
Thus, a strict application of the rule is unnecessary when cases
brought before the appellate courts do not involve factual but purely
legal questions. (Citations omitted.)
"A question of law exists when the doubt or controversy concerns the
correct application of law or jurisprudence to a certain set of facts; or
when the issue does not call for an examination of the probative value
of the evidence presented, the truth or falsehood of facts being
admitted[;]" and it may be brought directly before this Court, the
undisputed final arbiter of all questions of law.31
The present case is an exception to Section 187 of the Local
Government Code and the doctrine of exhaustion of administrative
remedies.
Section 187 of the Local Government Code reads:
Sec. 187. Procedure ·for Approval and Effectivity of Tax Ordinances
and Revenue Measures; Mandatory Public Hearings. – The procedure
for approval of local tax ordinances and revenue measures shall be in
accordance with the provisions of this Code: Provided, That public
hearings shall be conducted for the purpose prior to the enactment
thereof: Provided, further, That any question on the constitutionality
or legality of tax ordinances or revenue measures may be raised on
appeal within thirty (30) days from the effectivity thereof to the
Secretary of Justice who shall render a decision within sixty (60) days
from the date of receipt of the appeal: Provided, however, That such
148
appeal shall not have the effect of suspending the effectivity of the
ordinance and the accrual and payment of the tax, fee, or charge
levied therein: Provided, finally, That within thirty (30) days after
receipt of the decision or the lapse of the sixty-day period without the
Secretary of Justice acting upon the appeal, the aggrieved party may
file appropriate proceedings with a court of competent jurisdiction.
Indeed, the Court established in Reyes that the aforequoted provision
is a significant procedural requisite and, therefore, mandatory:
Clearly, the law requires that the dissatisfied taxpayer who questions
the validity or legality of a tax ordinance must file his appeal to the
Secretary of Justice, within 30 days from effectivity thereof. In case
the Secretary decides the appeal, a period also of 30 days is allowed
for an aggrieved party to go to court. But if the Secretary does not act
thereon, after the lapse of 60 days, a party could already proceed to
seek relief in court. These three separate periods are clearly given for
compliance as a prerequisite before seeking redress in a competent
court. Such statutory periods are set to prevent delays as well as
enhance the orderly and speedy discharge of judicial functions. For
this reason the courts construe these provisions of statutes as
mandatory.
A municipal tax ordinance empowers a local government unit to
impose taxes. The power to tax is the most effective instrument to
raise needed revenues to finance and support the myriad activities of
local government units for the delivery of basic services essential to
the promotion of the general welfare and enhancement of peace,
progress, and prosperity of the people. Consequently, any delay in
implementing tax measures would be to the detriment of the public. It
is for this reason that protests over tax ordinances are required to be
done within certain time frames. In the instant case, it is our view that
the failure of petitioners to appeal to the Secretary of Justice within 30
days as required by Sec. 187 of R.A. 7160 is fatal to their cause.32
(Citations omitted.)
The Court further affirmed in Hagonoy that:
At this point, it is apropos to state that the timeframe fixed by law for
parties to avail of their legal remedies before competent courts is not a
"mere technicality" that can be easily brushed aside. The periods stated
in Section 187 of the Local Government Code are mandatory.
Ordinance No. 28 is a revenue measure adopted by the municipality of
Hagonoy to fix and collect public market stall rentals. Being its
lifeblood, collection of revenues by the government is of paramount
importance. The funds for the operation of its agencies and provision
of basic services to its inhabitants are largely derived from its revenues
and collections. Thus, it is essential that the validity of revenue
measures is not left uncertain for a considerable length of time. Hence,
the law provided a time limit for an aggrieved party to assail the
legality of revenue measures and tax ordinances.33 (Citations
omitted.)
Nevertheless, in later cases, the Court recognized exceptional
circumstances that justify noncompliance by a taxpayer with Section
187 of the Local Government Code.
The Court ratiocinated in Ongsuco v. Malones,34 thus:
It is true that the general rule is that before a party is allowed to seek
the intervention of the court, he or she should have availed himself or
herself of all the means of administrative processes afforded him or
her. Hence, if resort to a remedy within the administrative machinery
can still be made by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his or her
jurisdiction, then such remedy should be exhausted first before the
court's judicial power can be sought. The premature invocation of the
intervention of the court is fatal to one's cause of action. The doctrine
of exhaustion of administrative remedies is based on practical and
legal reasons. The availment of administrative remedy entails lesser
expenses and provides for a speedier disposition of controversies.
Furthermore, the courts of justice, for reasons of comity and
convenience, will shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to
give the administrative agency concerned every opportunity to correct
its error and dispose of the case. However, there are several exceptions
to this rule.
The rule on the exhaustion of administrative remedies is intended to
preclude a court from arrogating unto itself the authority to resolve a
149
controversy, the jurisdiction over which is initially lodged with an
administrative body of special competence. Thus, a case where the
issue raised is a purely legal question, well within the competence;
and the jurisdiction of the court and not the administrative agency,
would clearly constitute an exception. Resolving questions of law,
which involve the interpretation and application of laws, constitutes
essentially an exercise of judicial power that is exclusively allocated to
the Supreme Court and such lower courts the Legislature may
establish.
In this case, the parties are not disputing any factual matter on which
they still need to present evidence. The sole issue petitioners raised
before the RTC in Civil Case No. 25843 was whether Municipal
Ordinance No. 98-01 was valid and enforceable despite the absence,
prior to its enactment, of a public hearing held in accordance with
Article 276 of the Implementing Rules and Regulations of the Local
Government Code. This is undoubtedly a pure question of law, within
the competence and jurisdiction of the RTC to resolve.
Paragraph 2(a) of Section 5, Article VIII of the Constitution, expressly
establishes the appellate jurisdiction of this Court, and impliedly
recognizes the original jurisdiction of lower courts over cases involving
the constitutionality or validity of an ordinance:
Section 5. The Supreme Court shall have the following powers:
xxxx
(2) Review, revise, reverse, modify or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation
is in question.
In J.M Tuason and Co., Inc. v. Court of Appeals, Ynot v. Intermediate
Appellate Court, and Commissioner of Internal Revenue v. Santos, the
Court has affirmed the jurisdiction of the RTC to resolve questions of
constitutionality and validity of laws (deemed to include local
ordinances) in the first instance, without deciding questions which
pertain to legislative policy. (Emphases supplied, citations omitted.)
In Cagayan Electric Power and Light Co., Inc. (CEPALCO) v. City of
Cagayan De Oro,35 the Court initially conceded that as in Reyes, the
failure of taxpayer CEPALCO to appeal to the Secretary of Justice
within the statutory period of 30 days from the effectivity of the
ordinance should have been fatal to its cause. However, the Court
purposefully relaxed the application of the rules in view of the more
substantive matters.
Similar to Ongsuco and CEPALCO, the case at bar constitutes an
exception to the general rule. Not only does the instant Petition raise
pure questions of law, but it also involves substantive matters
imperative for the Court to resolve.
Section 42 of the Revised Omnibus Tax Ordinance, as amended,
imposing amusement tax on golf courses is null and void as it is
beyond the authority of respondent Cebu City to enact under the Local
Government Code.
The Local Government Code authorizes the imposition by local
government units of amusement tax under Section 140, which
provides:
Sec. 140. Amusement Tax. - (a) The province may levy an
amusement tax to be collected from the proprietors, lessees, or
operators of theaters, cinemas, concert halls, circuses, boxing
stadia, and other places of amusement at a rate of not more than
thirty percent (30%) of the gross receipts from admission fees.
(b) In the case of theaters or cinemas, the tax shall first be
deducted and withheld by their proprietors, lessees, or operators
and paid to the provincial treasurer before the gross receipts are
divided between said proprietors, lessees, or operators and the
distributors of the cinematographic films.
(c) The holding of operas, concerts, dramas, recitals, painting,
and art exhibitions, flower shows, musical programs, literary and
150
oratorical presentations, except pop, rock, or similar concerts
shall be exempt from the payment of the tax hereon imposed.
(d) The sangguniang panlalawigan may prescribe the time,
manner, terms and conditions for the payment of tax. In case of
fraud or failure to pay the tax, the sangguniang panlalawigan
may impose such surcharges, interests and penalties as it may
deem appropriate.
(e) The proceeds from the amusement tax shall be shared equally
by the province and "the municipality where such amusement
places are located. (Emphasis supplied.)
"Amusement places," as defined in Section 13l(c) of the Local
Government Code, "include theaters, cinemas, concert halls, circuses
and other places of amusement where one seeks admission to
entertain oneself by seeing or viewing the show or performance."
The pronouncements of the Court in Pelizloy Realty Corporation v. The
Province of Benguet36 are of particular significance to this case. The
Court, in Pelizloy Realty, declared null and void the second paragraph
of Article X, Section 59 of the Benguet Provincial Code, in so far as it
imposes amusement taxes on admission fees to resorts, swimming
pools, bath houses, hot springs, and tourist spots. Applying the
principle of ejusdem generis, as well as the ruling in the PBA case, the
Court expounded on the authority of local government units to impose
amusement tax under Section 140, in relation to Section 131(c), of
the Local Government Code, as follows:
Under the principle of ejusdem generis, "where a general word or
phrase follows an enumeration of particular and specific words of the
same class or where the latter follow the former, the general word or
phrase is to be construed to include, or to be restricted to persons,
things or cases akin to, resembling, or of the same kind or class as
those specifically mentioned."
The purpose and rationale of the principle was explained by the Court
in National Power Corporation v. Angas as follows:
The purpose of the rule on ejusdem generis is to give effect to both the
particular and general words, by treating the particular words as
indicating the class and the general words as including all that is
embraced in said class, although not specifically named by the
particular words. This is justified on the ground that if the lawmaking
body intended the general terms to be used in their unrestricted sense,
it would have not made an enumeration of particular subjects but
would have used only general terms. [2 Sutherland, Statutory
Construction, 3rd ed., pp. 395-400].
In Philippine Basketball Association v. Court of Appeals, the Supreme
Court had an opportunity to interpret a starkly similar provision or the
counterpart provision of Section 140 of the LGC in the Local Tax Code
then in effect. Petitioner Philippine Basketball Association (PBA)
contended that it was subject to the imposition by LGUs of amusement
taxes (as opposed to amusement taxes imposed by the national
government). In support of its contentions, it cited Section 13 of
Presidential Decree No. 231, otherwise known as the Local Tax Code
of 1973, (which is analogous to Section 140 of the LGC) providing the
following:
Section 13. Amusement tax on admission. – The province shall
impose a tax on admission to be collected from the proprietors,
lessees, or operators of theaters, cinematographs, concert halls,
circuses and other places of amusement x x x.
Applying the principle of ejusdem generis, the Supreme Court rejected
PBA's assertions and rioted that:
[I]n determining the meaning of the phrase 'other places of
amusement', one must refer to the prior enumeration of theaters,
cinematographs, concert halls and circuses with artistic expression as
their common characteristic. Professional basketball games do not fall
under the same category as theaters, cinematographs, concert halls
and circuses as the latter basically belong to artistic forms of
entertainment while the former caters to sports and gaming.
However, even as the phrase 'other places of amusement' was already
clarified in Philippine Basketball Association, Section 140 of the LGC
adds to the enumeration of 'places of amusement' which may properly
151
be subject to amusement tax. Section 140 specifically mentions 'boxing
stadia' in addition to "theaters, cinematographs, concert halls [and]
circuses" which were already mentioned in PD No. 231. Also, 'artistic
expression' as a characteristic does not pertain to 'boxing stadia'.
In the present case, the Court need not embark on a laborious effort at
statutory construction. Section 131 (c) of the LGC already provides a
clear definition of' amusement places':
xxxx
Indeed, theaters, cinemas, concert halls, circuses, and boxing stadia
are bound by a common typifying characteristic in that they are all
venues primarily for the staging of spectacles or the holding of public
shows, exhibitions, performances, and other events meant to be
viewed by an audience. Accordingly, 'other places of amusement' must
be interpreted in light of the typifying characteristic of being venues
"where one seeks admission to entertain oneself by seeing or viewing
the show or performances" or being venues primarily used to stage
spectacles or hold public shows, exhibitions, performances, and other
events meant to be viewed by an audience.
As defined in The New Oxford American Dictionary, 'show' means "a
spectacle or display of something, typically an impressive one"; while
'performance' means "an act of staging or presenting a play, a concert,
or other form of entertainment." As such, the ordinary definitions of
the words 'show' and 'performance' denote not only visual engagement
(i.e., the seeing or viewing of things) but also active doing (e.g.,
displaying, staging or presenting) such that actions are manifested to,
and (correspondingly) perceived by an audience.
Considering these, it is clear that resorts, swimming pools, bath
houses, hot springs and tourist spots cannot be considered venues
primarily "where one seeks admission to entertain oneself by seeing or
viewing the show or performances". While it is true that they may be
venues where people are visually engaged, they are not primarily
venues for their proprietors or operators to actively display, stage or
present shows and/or performances.
Thus, resorts, swimming pools, bath houses, hot springs and tourist
spots do not belong to the same category or class as theaters, cinemas,
concert halls, circuses, and boxing stadia. It follows that they cannot
be considered as among the 'other places of amusement' contemplated
by Section 140 of the LGC and which may properly be subject to
amusement taxes.37 (Emphases supplied, citations omitted.)
In light of Pelizloy Realty, a golf course cannot be considered a place of
amusement. As petitioner asserted, people do not enter a golf course
to see or view a show or performance. Petitioner also, as proprietor or
operator of the golf course, does not actively display, stage, or present
a show or performance. People go to a golf course to engage
themselves in a physical sport activity, i.e., to play golf; the same
reason why people go to a gym or court to play badminton or tennis or
to a shooting range for target practice, yet there is no showing herein
that such gym, court, or shooting range is similarly considered an
amusement place subject to amusement tax. There is no basis for
singling out golf courses for amusement tax purposes from other
places where people go to play sports. This is in contravention of one
of the fundamental principles of local taxation: that the "[t]axation
shall be uniform in each local government unit."38 Uniformity of
taxation, like the kindred concept of equal protection, requires that all
subjects or objects of taxation, similarly situated, are to be treated
alike both in privileges and liabilities.39
Not lost on the Court is its declaration in Manila Electric Co. v.
Province of Laguna40 that under the 1987 Constitution, "where there
is neither a grant nor a prohibition by statute, the tax power [of local
government units] must be deemed to exist although Congress may
provide statutory limitations and guidelines." Section 186 of the Local
Government Code also expressly grants local government units the
following residual power to tax:
Sec. 186. Power to Levy Other Taxes; Fees, or Charges. – Local
government units may exercise the power to levy taxes, fees, or
charges on any base or subject not otherwise specifically enumerated
herein or taxed under the provisions of the National Internal Revenue
Code, as amended, or other applicable laws: Provided, that the taxes,
fees, or charges shall not be unjust, excessive, oppressive, confiscatory
or contrary to declared national policy: Provided, further, That the
152
ordinance levying such taxes, fees or charges shall not be enacted
without any prior public hearing conducted for the purpose.1awp+
+i1 (Emphasis supplied.)
Respondents, however, cannot claim that Section 42 of the Revised
Omnibus Tax Ordinance, as amended, imposing amusement tax on
golf courses, was enacted pursuant to the residual power to tax of
respondent Cebu City. A local government unit may exercise its
residual power to tax when there is neither a grant nor a prohibition
by statute; or when such taxes, fees, or charges are not otherwise
specifically enumerated in the Local Government Code, National
Internal Revenue Code, as amended, or other applicable laws. In the
present case, Section 140, in relation to Section 131 (c), of the Local
Government Code already explicitly and clearly cover amusement tax
and respondent Cebu City must exercise its authority to impose
amusement tax within the limitations and guidelines as set forth in
said statutory provisions.
WHEREFORE, in view of all the foregoing, the Court GRANTS the
instant Petition, and REVERSES and SETS ASIDE the Resolution dated
March 14, 2007 and the Order dated October 3, 2007 of the Regional
Trial Court, Cebu City, Branch 9 in Civil Case No. CEB-31988. The
Court DECLARES NULL and VOID the following: (a) Section 42 of the
Revised Omnibus Tax Ordinance of the City of Cebu, as amended by
City Tax Ordinance Nos. LXXXII and LXXXIV, insofar as it imposes
amusement tax of 20% on the gross receipts on entrance, playing
green, and/or admission fees of golf courses; (b) the tax assessment
against petitioner for amusement tax on its golf course for the year
1998 in the amount of Pl,373,761.24, plus surcharges and interest
pertaining to said amount, issued by the Office of the City Treasurer,
City of Cebu; and (c) the Closure Order dated December 28, 2005
issued against Alta Vista Golf and Country Club by the Office of the
Mayor, City of Cebu. The Court also ORDERS the City of Cebu to
refund to Alta Vista Golf and Country Club the amusement tax,
penalties, surcharge, and interest paid under protest by the latter in
the total amount of P2, 750,249 .17 or to apply the same amount as
tax credit against existing or future tax liability of said Club.
SO ORDERED.
 G.R. No. 169435 February 27, 2008
MUNICIPALITY OF NUEVA ERA, ILOCOS NORTE, represented by its
Municipal Mayor, CAROLINE ARZADON-GARVIDA, petitioner,
vs.
MUNICIPALITY OF MARCOS, ILOCOS NORTE, represented by its
Municipal Mayor, SALVADOR PILLOS, and the HONORABLE COURT
OF APPEALS, respondents.
DECISION
REYES, R.T., J.:
AS the law creating a municipality fixes its boundaries, settlement of
boundary disputes between municipalities is facilitated by carrying into
effect the law that created them.
Any alteration of boundaries that is not in accordance with the law
creating a municipality is not the carrying into effect of that law but its
amendment, which only the Congress can do.1
For Our review on certiorari is the Decision2 of the Court of Appeals (CA)
reversing to a certain extent that3 of the Regional Trial Court (RTC),
Branch 12, Laoag City, Ilocos Norte, in a case that originated from the
Sangguniang Panlalawigan (SP) of Ilocos Norte about the boundary
dispute between the Municipalities of Marcos and Nueva Era in Ilocos
Norte.
The CA declared that Marcos is entitled to have its eastern boundary
extended up "to the boundary line between the province of Ilocos Norte
and Kalinga-Apayao."4 By this extension of Marcos' eastern boundary, the
CA allocated to Marcos a portion of Nueva Era's territory.
The Facts
The Municipality of Nueva Era was created from the settlements of
Bugayong, Cabittaoran, Garnaden, Padpadon, Padsan, Paorpatoc,
Tibangran, and Uguis which were previously organized as rancherias,
each of which was under the independent control of a chief. Governor
General Francis Burton Harrison, acting on a resolution passed by the
provincial government of Ilocos Norte, united these rancherias and
created the township of Nueva Era by virtue of Executive Order (E.O.) No.
66 5 dated September 30, 1916.
153
The Municipality of Marcos, on the other hand, was created on June 22,
1963 pursuant to Republic Act (R.A.) No. 3753 entitled "An Act Creating
the Municipality of Marcos in the Province of Ilocos Norte." Section 1 of
R.A. No. 3753 provides:
SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao,
Alabaan, Ragas and Agunit in the Municipality of Dingras, Province
of Ilocos Norte, are hereby separated from the said municipality and
constituted into a new and separate municipality to be known as the
Municipality of Marcos, with the following boundaries:
On the Northwest, by the barrios Biding-Rangay boundary going down to
the barrios Capariaan-Gabon boundary consisting of foot path and feeder
road; on the Northeast, by the Burnay River which is the common
boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos
Norte-Mt. Province boundary; on the South, by the Padsan River which is
at the same time the boundary between the municipalities of Banna and
Dingras; on the West and Southwest, by the boundary between the
municipalities of Batac and Dingras.
The Municipality of Marcos shall have its seat of government in the barrio
of Biding.
Based on the first paragraph of the said Section 1 of R.A. No. 3753, it is
clear that Marcos shall be derived from the listed barangays of Dingras,
namely: Capariaan, Biding, Escoda, Culao, Alabaan, Ragas and Agunit.
The Municipality of Nueva Era or any of its barangays was not mentioned.
Hence, if based only on said paragraph, it is clear that Nueva Era may not
be considered as a source of territory of Marcos.
There is no issue insofar as the first paragraph is concerned which named
only Dingras as the mother municipality of Marcos. The problem,
however, lies in the description of Marcos' boundaries as stated in the
second paragraph, particularly in the phrase: "on the East, by the Ilocos
Norte-Mt. Province boundary."
It must be noted that the term "Mt. Province" stated in the above phrase
refers to the present adjoining provinces of Benguet, Mountain Province,
Ifugao, Kalinga and Apayao, which were then a single province.
Mt. Province was divided into the four provinces of Benguet, Mountain
Province, Ifugao, and Kalinga-Apayao by virtue of R.A. No. 4695 which
was enacted on June 18, 1966. On February 14, 1995, the province of
Kalinga-Apayao, which comprises the sub-provinces of Kalinga and
Apayao, was further converted into the regular provinces of Kalinga and
Apayao pursuant to R.A. No. 7878.
The part of then Mt. Province which was at the east of Marcos is now the
province of Apayao. Hence, the eastern boundary referred to by the
second paragraph of Section 1 of R.A. No. 3753 is the present Ilocos
Norte-Apayao boundary.
On the basis of the said phrase, which described Marcos' eastern
boundary, Marcos claimed that the middle portion of Nueva Era, which
adjoins its eastern side, formed part of its territory. Its reasoning was
founded upon the fact that Nueva Era was between Marcos and the Ilocos
Norte-Apayao boundary such that if Marcos was to be bounded on the
east by the Ilocos Norte-Apayao boundary, part of Nueva Era would
consequently be obtained by it.6
Marcos did not claim any part of Nueva Era as its own territory until after
almost 30 years,7 or only on March 8, 1993, when its Sangguniang Bayan
passed Resolution No. 93-015.8 Said resolution was entitled: "Resolution
Claiming an Area which is an Original Part of Nueva Era, But Now
Separated Due to the Creation of Marcos Town in the Province of Ilocos
Norte."
Marcos submitted its claim to the SP of Ilocos Norte for its consideration
and approval. The SP, on the other hand, required Marcos to submit its
position paper.9
In its position paper, Marcos alleged that since its northeastern and
eastern boundaries under R.A. No. 3753 were the Burnay River and the
Ilocos Norte-Mountain Province boundary, respectively, its eastern
boundary should not be limited to the former Dingras-Nueva Era
boundary, which was coterminous and aligned with the eastern boundary
of Dingras. According to Marcos, its eastern boundary should extend
further to the east or up to the Ilocos-Norte-Mt. Province boundary
pursuant to the description of its eastern boundary under R.A. No.
3753.10
In view of its claim over the middle portion of Nueva Era, Marcos posited
that Nueva Era was cut into two parts. And since the law required that the
land area of a municipality must be compact and contiguous, Nueva Era's
northern isolated portion could no longer be considered as its territory
154
but that of Marcos'. Thus, Marcos claimed that it was entitled not only to
the middle portion11 of Nueva Era but also to Nueva Era's isolated
northern portion. These areas claimed by Marcos were within Barangay
Sto. Niño, Nueva Era.
Nueva Era reacted to the claim of Marcos through its Resolution No. 1,
Series of 1993. It alleged that since time immemorial, its entire land area
was an ancestral domain of the "tinguians," an indigenous cultural
community. It argued to the effect that since the land being claimed by
Marcos must be protected for the tinguians, it must be preserved as part
of Nueva Era.12
According to Nueva Era, Marcos was created out of the territory of
Dingras only. And since R.A. No. 3753 specifically mentioned seven (7)
barrios of Dingras to become Marcos, the area which should comprise
Marcos should not go beyond the territory of said barrios.13
From the time Marcos was created in 1963, its eastern boundary had been
considered to be aligned and coterminous with the eastern boundary of
the adjacent municipality of Dingras. However, based on a re-survey in
1992, supposedly done to conform to the second paragraph of Section 1
of R.A. No. 3753, an area of 15,400 hectares of Nueva Era was alleged to
form part of Marcos.14 This was the area of Barangay Sto. Niño, Nueva
Era that Marcos claimed in its position paper.
On March 29, 2000, the SP of Ilocos Norte ruled in favor of Nueva Era.
The fallo of its decision15 reads:
WHEREFORE, in view of all the foregoing, this Body has no alternative
but to dismiss, as it hereby DISMISSES said petition for lack of merit. The
disputed area consisting of 15,400 hectares, more or less, is hereby
declared as part and portion of the territorial jurisdiction of respondent
Nueva Era.16
R.A. No. 3753 expressly named the barangays that would comprise
Marcos, but none of Nueva Era's barangays were mentioned. The SP thus
construed, applying the rule of expressio unius est exclusio alterius, that
no part of Nueva Era was included by R.A. No. 3753 in creating Marcos.
17
The SP ratiocinated that if Marcos was to be bounded by Mt. Province, it
would encroach upon a portion, not only of Nueva Era but also of Abra.
Thus:
x x x Even granting, for the sake of argument, that the eastern boundary
of Marcos is indeed Mountain Province, Marcos will then be claiming a
portion of Abra because the province, specifically Barangay Sto. Niño,
Nueva Era, is actually bounded on the East by the Province of Abra. Abra
is situated between and separates the Provinces of Ilocos Norte and
Mountain Province.
This is precisely what this body would like to avoid. Statutes should be
construed in the light of the object to be achieved and the evil or mischief
to be suppressed, and they should be given such construction as will
advance the object, suppress the mischief and secure the benefits
intended.18 (Citations omitted)
The SP further explained:
Invariably, it is not the letter, but the spirit of the law and the intent of the
legislature that is important. When the interpretation of the statute
according to the exact and literal import of its words would lead to
absurdity, it should be construed according to the spirit and reason,
disregarding if necessary the letters of the law. It is believed that congress
did not intend to have this absurd situation to be created when it created
the Municipality of Marcos. This body, by the mandate given to it by the
RA 7160 otherwise known Local Government Code, so believes that
respondent Nueva Era or any portion thereof has been excluded from the
ambit of RA 3753. Under the principle of "espressio (sic) unios (sic) est
exclusio alterius," by expressly naming the barangays that will comprise
the town of Marcos, those not mentioned are deemed excluded. In
Republic Act 4354, where Section 2 thereof enumerated the barrios
comprising the City of Davao excluding the petitioner Barrio Central as
part of the said City, the court held that there arose a prima facie
conclusion that the said law abolished Barrio Central as part of Davao
City.
Historically, the hinterlands of Nueva Era have been known to be the
home of our brothers and sisters belonging to peculiar groups of non-
(C)hristian inhabitants with their own rich customs and traditions and
this body takes judicial notice that the inhabitants of Nueva Era have
proudly claimed to be a part of this rich culture. With this common
ancestral heritage which unfortunately is absent with Marcos, let it not be
disturbed.19 (Emphasis ours and citations omitted)
RTC Decision
155
On appeal by Marcos, the RTC affirmed the decision of the SP in its
decision20 of March 19, 2001. The dispositive part of the RTC decision
reads:
WHEREFORE, the instant appeal is hereby DISMISSED. The questioned
decision of the Sangguniang Panlalawigan of Ilocos Norte is hereby
AFFIRMED.
No costs.
SO ORDERED.21
The RTC reasoned out in this wise:
The position of the Municipality of Marcos is that the provision of
R.A. 3753 as regards its boundary on the East which is the "Ilocos
Norte-Mt. Province" should prevail.
On the other hand, the Municipality of Nueva Era posits the
theory that only the barrios of the Municipality of Dingras as
stated in R.A. 3753 should be included in the territorial
jurisdiction of the Municipality of Marcos. The Sangguniang
Panlalawigan agreed with the position of Nueva Era.
xxxx
An examination of the Congressional Records during the deliberations of
the R.A. 3753 (House Bill No. 3721) shows the Explanatory Note of
Congressman Simeon M. Valdez, 2nd District, Ilocos Norte, to wit:
EXPLANATORY NOTE
This bill seeks to create in the Province of Ilocos Norte a new municipality
to be known as the Municipality of Marcos, to be comprised by the
present barrios of Capariaan, Biding Escoda, Culao, Alabaan, Ragas and
Agunit, all in the Municipality of Dingras of the same province. The seat
of government will be in the sitio of San Magro in the present barrio of
Ragas.
xxxx
On the other hand, the Municipality of Dingras will not be adversely
affected too much because its finances will still be sound and stable. Its
capacity to comply with its obligations, especially to its employees and
personnel, will not be diminished nor its operations paralyzed. On the
contrary, economic development in both the mother and the proposed
municipalities will be accelerated.
In view of the foregoing, approval of this bill is earnestly requested.
(Sgd.) SIMEON M. VALDEZ
Congressman, 2nd District
Ilocos Norte22
Parenthetically, the legislative intent was for the creation of the
Municipality of Marcos, Ilocos Norte from the barrios (barangays) of the
Municipality of Dingras, Ilocos Norte only. Hence, the Municipality of
Marcos cannot add any area beyond the territorial jurisdiction of the
Municipality of Dingras, Ilocos Norte. This conclusion might have been
different only if the area being claimed by the Municipality of Marcos is
within the territorial jurisdiction of the Municipality of Dingras and not
the Municipality of Nueva Era. In such case, the two conflicting provisions
may be harmonized by including such area within the territorial
jurisdiction of the Municipality of Dingras as within the territorial
jurisdiction of the Municipality of Marcos.23 (Emphasis ours)
CA Disposition
Still determined to have a more extensive eastern boundary, Marcos filed
a petition for review24 of the RTC decision before the CA. The issues
raised by Marcos before the CA were:
1. Whether or not the site of Hercules Minerals and Oil, Inc.
which is within a Government Forest Reservation in Barangay Sto.
Niño, formerly of Nueva Era, is a part of the newly created
Municipality of Marcos, Ilocos Norte.
2. Whether or not the portion of Barangay Sto. Niño on the East
which is separated from Nueva Era as a result of the full
implementation of the boundaries of the new Municipality of
Marcos belongs also to Marcos or to Nueva Era.25
The twin issues involved two portions of Nueva Era, viz.: (1) middle
portion, where Hercules Minerals and Oil, Inc. is located; and (2)
156
northern portion of Nueva Era, which, according to Marcos, was isolated
from Nueva Era in view of the integration to Marcos of said middle
portion.
Marcos prayed before the CA that the above two portions of Nueva Era be
declared as part of its own territory. It alleged that it was entitled to the
middle portion of Nueva Era in view of the description of Marcos' eastern
boundary under R.A. No. 3753. Marcos likewise contended that it was
entitled to the northern portion of Nueva Era which was allegedly isolated
from Nueva Era when Marcos was created. It posited that such isolation of
territory was contrary to law because the law required that a municipality
must have a compact and contiguous territory.26
In a Decision27 dated June 6, 2005, the CA partly reversed the RTC
decision with the following disposition:
WHEREFORE, we partially GRANT the petition treated as one for
certiorari. The Decisions of both the Sangguniang Panlalawigan
and Regional Trial Court of Ilocos Norte are REVERSED and SET
ASIDE insofar as they made the eastern boundary of the
municipality of Marcos co-terminous with the eastern boundary of
Dingras town, and another is rendered extending the said
boundary of Marcos to the boundary line between the province of
Ilocos Norte and Kalinga-Apayao, but the same Decisions are
AFFIRMED with respect to the denial of the claim of Marcos to the
detached northern portion of barangay Sto. Niño which should, as
it is hereby ordered to, remain with the municipality of Nueva
Era. No costs.
SO ORDERED.28
In concluding that the eastern boundary of Marcos was the boundary line
between Ilocos Norte and Kalinga-Apayao, the CA gave the following
explanation:
Clearly then, both the SP and the RTC erred when they ruled that the
eastern boundary of Marcos is only coterminous with the eastern
boundary of the adjacent municipality of Dingras and refused to extend it
up to the boundary line between the provinces of Ilocos Norte and
Mountain Province (Kalinga-Apayao). R.A. No. 3753, the law creating
Marcos, is very explicit and leaves no room for equivocation that the
boundaries of Marcos town are:
"On the Northwest by the barrios Biding-Rangay boundary going down to
the barrios Capariaan-Gabon boundary consisting of foot path and feeder
road; on the Northeast, by the Burnay River which is the common
boundary of barrios Agunit and Naglayaan; on the East, by the Ilocos
Norte-Mt. Province boundary; on the South by the Padsan River, which is
at the same time the boundary between the municipalities of Banna and
Dingras; on the West and Southwest by the boundary between the
municipalities of Batac and Dingras."
To stop short at the eastern boundary of Dingras as the eastern boundary
also of Marcos and refusing to go farther to the boundary line between
Ilocos Norte and Mountain Province (Kalinga-Apayao) is tantamount to
amending the law which Congress alone can do. Both the SP and RTC
have no competence to undo a valid act of Congress.
It is not correct to say that Congress did not intend to take away any part
of Nueva Era and merge it with Marcos for it is chargeable with
conclusive knowledge that when it provided that the eastern boundary of
Marcos is the boundary line between Ilocos Norte and Mountain Province,
(by the time of both the SB and RTC Decision was already Kalinga-
Apayao), it would be cutting through a portion of Nueva Era. As the law is
written so must it be applied. Dura lex sed lex!29
The CA likewise held that the province Abra was not located between
Marcos and Kalinga-Apayao; and that Marcos would not encroach upon a
portion of Abra for it to be bounded by Kalinga-Apayao, to wit:
Nueva Era's contention that to lay out the eastern jurisdiction of Marcos to
the boundary line between Ilocos Norte and Mountain Province (Kalinga-
Apayao) would mean annexing part of the municipality of Itnig, province
of Abra to Marcos as Abra is between Ilocos Norte and Mountain Province
is geographically erroneous. From Nueva Era's own map of Region 1,
which also depicts the locations of Kalinga-Apayao, Abra, Mountain
Province, Benguet and Nueva Vizcaya after the partition of the old
Mountain Province into the provinces of Kalinga-Apayao, Ifugao,
Mountain Province and Benguet, the province of Abra is situated far to
the south of Kalinga Apayao and is between the latter and the present
Mountain Province, which is farther south of Abra. Abra is part of the
eastern boundary of Ilocos Sur while Kalinga-Apayao is the eastern
boundary of Ilocos Norte. Hence, in no way will the eastern boundary of
the municipality of Marcos encroach upon a portion of Abra.30
157
However, Marcos' claim over the alleged isolated northern portion of
Nueva Era was denied. The CA ruled:
Going now to the other area involved, i.e., the portion of Sto. Niño that is
separated from its mother town Nueva Era and now lies east of the
municipalities of Solsona and Dingras and north of Marcos, it bears
stressing that it is not included within the area of Marcos as defined by
law. But since it is already detached from Sto. Niño, Marcos is laying
claim to it to be integrated into its territory by the SP because it is
contiguous to a portion of said municipality.
We hold that the SP has no jurisdiction or authority to act on the claim,
for it will necessarily substantially alter the north eastern and southern
boundaries of Marcos from that defined by law and unduly enlarge its
area. Only Congress can do that. True, the SP may substantially alter the
boundary of a barangay within its jurisdiction. But this means the
alteration of the boundary of a barangay in relation to another barangay
within the same municipality for as long as that will not result in any
change in the boundary of that municipality. The area in dispute therefore
remains to be a part of Sto. Niño, a barangay of Nueva Era although
separated by the newly created Marcos town pursuant to Section 7(c) of
the 1991 Local Government Code which states:
SEC. 7. Creation and Conversion. - As a general rule, the creation of
a local government unit or its conversion from one level to another
shall be based on verifiable indicators of viability and projected
capacity to provide services, to wit:
xxxx
(c) Land Area. - It must be contiguous, unless it comprises two or
more islands or is separated by a local government unit independent
of the others; properly identified by metes and bounds with technical
descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.31
The CA also expressed the view that Marcos adopted the wrong mode of
appeal in bringing the case to it. The case, according to the CA, was
appealable only to the RTC. Nonetheless, despite its pronouncement that
the case was dismissible, the CA took cognizance of the same by treating
it as one for certiorari, to wit:
A final word. At the outset, we agonized over the dilemma of choosing
between dismissing outright the petition at bar or entertaining it. This is
for the simple reason that a petition for review is a mode of appeal and is
not appropriate as the Local Government Code provides for the remedy of
appeal in boundary disputes only to the Regional Trial Court but not any
further appeal to this Court. Appeal is a purely statutory right. It cannot
be exercised unless it is expressly granted by law. This is too basic to
require the citation of supporting authority.
xxxx
By the same token, since the Local Government Code does not explicitly
grant the right of further appeal from decisions of the RTCs in boundary
disputes between or among local government units, Marcos town cannot
exercise that right from the adverse decision of the RTC of Ilocos Norte.
Nonetheless, because of the transcendental legal and jurisdictional issues
involved, we solved our inceptive dilemma by treating the petition at bar
as a special civil action for certiorari.32
Nueva Era was not pleased with the decision of the CA. Hence, this
petition for review on certiorari under Rule 45.
Issues
Nueva Era now raises the following issues:
a) Whether or not, the Court of Appeals has jurisdiction on the
Petition for Review on Appeal, since Sec. 119 of the Local
Government Code, which provides that "An appeal to the Decision of
the Sangguniang Panlalawigan is exclusively vested to the Regional
Trial Court, without further Appeal to the Court of Appeals";
b) Whether or not, the Court of Appeals gravely abused its
discretion, in treating the Petition for Review On Appeal, filed under
Rule 45, Revised Rules of Court, as a Petition for Certiorari, under
Rule 65 of the Revised Rules of Court;
c) Whether or not, the Court of Appeals erred in its appreciation of
facts, in declaring that MARCOS East is not coterminous with the
Eastern boundary of its mother town-Dingras. That it has no factual
and legal basis to extend MARCOS territory beyond Brgys. Agunit
(Ferdinand) and Culao (Elizabeth) of Marcos, and to go further
East, by traversing and disintegrating Brgy. Sto. Niño, and drawing
158
parallel lines from Sto. Niño, there lies Abra, not Mt. Province or
Kalinga-Apayao.33
Basically, there are two (2) issues to resolve here: (1) whether or not the
mode of appeal adopted by Marcos in bringing the case to the CA is
proper; and (2) whether or not the eastern boundary of Marcos extends
over and covers a portion of Nueva Era.
Our Ruling
Marcos correctly appealed the RTC judgment via petition for review under
Rule 42.
Under Section 118(b) of the Local Government Code, "(b)oundary
disputes involving two (2) or more municipalities within the same
province shall be referred for settlement to the sangguniang panlalawigan
concerned." The dispute shall be formally tried by the said sanggunian in
case the disputing municipalities fail to effect an amicable settlement.34
The SP of Ilocos validly took cognizance of the dispute between the
parties. The appeal of the SP judgment to the RTC was likewise properly
filed by Marcos before the RTC. The problem, however, lies in whether the
RTC judgment may still be further appealed to the CA.
The CA pronounced that the RTC decision on the boundary dispute was
not appealable to it. It ruled that no further appeal of the RTC decision
may be made pursuant to Section 119 of the Local Government Code35
which provides:
SECTION 119. Appeal. - Within the time and manner prescribed by
the Rules of Court, any party may elevate the decision of the
sanggunian concerned to the proper Regional Trial Court having
jurisdiction over the area in dispute. The Regional Trial Court shall
decide the appeal within one (1) year from the filing thereof. Pending
final resolution of the disputed area prior to the dispute shall be
maintained and continued for all legal purposes.
The CA concluded that since only the RTC was mentioned as appellate
court, the case may no longer be further appealed to it. The CA stated that
"(a)ppeal is a purely statutory right. It cannot be exercised unless it is
expressly granted by law. This is too basic to require the citation of
supporting authority."36
The CA, however, justified its taking cognizance of the case by declaring
that: "because of the transcendental legal and jurisdictional issues
involved, we solved our inceptive dilemma by treating the petition at bar
as a special civil action for certiorari."37
The CA erred in declaring that only the RTC has appellate jurisdiction
over the judgment of the SP.
True, appeal is a purely statutory right and it cannot be exercised unless it
is expressly granted by law. Nevertheless, the CA can pass upon the
petition for review precisely because the law allows it.
Batas Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of
1980, as amended by R.A. No. 7902,38 vests in the CA the appellate
jurisdiction over all final judgments, decisions, resolutions, orders or
awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, among others.39 B.P. Blg. 129
has been further supplemented by the 1997 Rules of Civil Procedure, as
amended, which provides for the remedy of appeal via petition for review
under Rule 42 to the CA in cases decided by the RTC in the exercise of its
appellate jurisdiction.
Thus, the CA need not treat the appeal via petition for review filed by
Marcos as a petition for certiorari to be able to pass upon the same. B.P.
Blg. 129, as amended, which is supplemented by Rule 42 of the Rules of
Civil Procedure, gives the CA the authority to entertain appeals of such
judgments and final orders rendered by the RTC in the exercise of its
appellate jurisdiction.
At the time of creation of Marcos, approval in a plebiscite of the creation
of a local government unit is not required.
Section 10, Article X of the 1987 Constitution provides that:
No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite
in the political units directly affected.40
The purpose of the above constitutional provision was acknowledged by
the Court through Justice Reynato S. Puno in Miranda v. Aguirre,41 where
it was held that:
159
The 1987 Constitution, more than any of our previous Constitutions, gave
more reality to the sovereignty of our people for it was borne out of the
people power in the 1986 EDSA revolution. Its Section 10, Article X
addressed the undesirable practice in the past whereby local government
units were created, abolished, merged or divided on the basis of the
vagaries of politics and not of the welfare of the people. Thus, the consent
of the people of the local government unit directly affected was required
to serve as a checking mechanism to any exercise of legislative power
creating, dividing, abolishing, merging or altering the boundaries of local
government units. It is one instance where the people in their sovereign
capacity decide on a matter that affects them - direct democracy of the
people as opposed to democracy thru people's representatives. This
plebiscite requirement is also in accord with the philosophy of the
Constitution granting more autonomy to local government units.42
Nueva Era contends that the constitutional and statutory43 plebiscite
requirement for the creation of a local government unit is applicable to
this case. It posits that the claim of Marcos to its territory should be
denied due to lack of the required plebiscite.
We agree with Nueva Era's contention that Marcos' claim over parts of its
territory is not tenable. However, the reason is not the lack of the required
plebiscite under the 1987 and 1973 constitutions and the Local
Government Code of 1991 but other reasons as will be discussed below.
At the time Marcos was created, a plebiscite was not required by law to
create a local government unit. Hence, Marcos was validly created
without conducting a plebiscite. As a matter of fact, no plebiscite was
conducted in Dingras, where it was derived.
Lex prospicit, non respicit. The law looks forward, not backward.44 It is
the basic norm that provisions of the fundamental law should be given
prospective application only, unless legislative intent for its retroactive
application is so provided.45
In the comparable case of Ceniza v. Commission on Elections46 involving
the City of Mandaue, the Court has this to say:
Petitioners assail the charter of the City of Mandaue as unconstitutional
for not having been ratified by the residents of the city in a plebiscite. This
contention is untenable. The Constitutional requirement that the creation,
division, merger, abolition, or alteration of the boundary of a province,
city, municipality, or barrio should be subject to the approval by the
majority of the votes cast in a plebiscite in the governmental unit or units
affected is a new requirement that came into being only with the 1973
Constitution. It is prospective in character and therefore cannot affect the
creation of the City of Mandaue which came into existence on June 21,
1969.47 (Citations omitted and underlining supplied).
Moreover, by deciding this case, We are not creating Marcos but merely
interpreting the law that created it. Its creation was already a fait
accompli. Therefore, there is no reason for Us to further require a
plebiscite.
As pointed out by Justice Isagani Cruz, to wit:
Finally, it should be observed that the provisions of the Constitution
should be given only a prospective application unless the contrary is
clearly intended. Were the rule otherwise, rights already acquired or
vested might be unduly disturbed or withdrawn even in the absence of an
unmistakable intention to place them within the scope of the Constitution.
48
No part of Nueva Era's territory was taken for the creation of Marcos
under R.A. No. 3753.
Only the barrios (now barangays) of Dingras from which Marcos obtained
its territory are named in R.A. No. 3753. To wit:
SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao,
Alabaan, Ragas and Agunit in the Municipality of Dingras, Province
of Ilocos Norte, are hereby separated from the said municipality and
constituted into a new and separate municipality to be known as the
Municipality of Marcos, with the following boundaries:
Since only the barangays of Dingras are enumerated as Marcos' source of
territory, Nueva Era's territory is, therefore, excluded.
Under the maxim expressio unius est exclusio alterius, the mention of one
thing implies the exclusion of another thing not mentioned. If a statute
enumerates the things upon which it is to operate, everything else must
necessarily and by implication be excluded from its operation and effect.
49 This rule, as a guide to probable legislative intent, is based upon the
rules of logic and natural workings of the human mind.50
160
Had the legislature intended other barangays from Nueva Era to become
part of Marcos, it could have easily done so by clear and concise language.
Where the terms are expressly limited to certain matters, it may not by
interpretation or construction be extended to other matters.51 The rule
proceeds from the premise that the legislature would not have made
specified enumerations in a statute had the intention been not to restrict
its meaning and to confine its terms to those expressly mentioned.52
Moreover, since the barangays of Nueva Era were not mentioned in the
enumeration of barangays out of which the territory of Marcos shall be
set, their omission must be held to have been done intentionally. This
conclusion finds support in the rule of casus omissus pro omisso habendus
est, which states that a person, object or thing omitted from an
enumeration must be held to have been omitted intentionally.53
Furthermore, this conclusion on the intention of the legislature is
bolstered by the explanatory note of the bill which paved the way for the
creation of Marcos. Said explanatory note mentioned only Dingras as the
mother municipality of Marcos.
Where there is ambiguity in a statute, as in this case, courts may resort to
the explanatory note to clarify the ambiguity and ascertain the purpose
and intent of the statute.54
Despite the omission of Nueva Era as a mother territory in the law
creating Marcos, the latter still contends that said law included Nueva
Era. It alleges that based on the description of its boundaries, a portion of
Nueva Era is within its territory.
The boundaries of Marcos under R.A. No. 3753 read:
On the Northwest, by the barrios Biding-Rangay boundary going
down to the barrios Capariaan-Gabon boundary consisting of foot
path and feeder road; on the Northeast, by the Burnay River which
is the common boundary of barrios Agunit and Naglayaan; on the
East, by the Ilocos Norte-Mt. Province boundary; on the South, by
the Padsan River which is at the same time the boundary between
the municipalities of Banna and Dingras; on the West and
Southwest, by the boundary between the municipalities of Batac
and Dingras.
Marcos contends that since it is "bounded on the East, by the Ilocos Norte-
Mt. Province boundary," a portion of Nueva Era formed part of its territory
because, according to it, Nueva Era is between the Marcos and Ilocos
Norte-Mt. Province boundary. Marcos posits that in order for its eastern
side to reach the Ilocos Norte-Mt. Province boundary, it will necessarily
traverse the middle portion of Nueva Era.
Marcos further claims that it is entitled not only to the middle portion of
Nueva Era but also to its northern portion which, as a consequence, was
isolated from the major part of Nueva Era.
We cannot accept the contentions of Marcos.
Only Dingras is specifically named by law as source territory of Marcos.
Hence, the said description of boundaries of Marcos is descriptive only of
the listed barangays of Dingras as a compact and contiguous territory.
reason for its enactment should be kept in mind and the statute should be
construed with reference to the intended scope and purpose. The court
may consider the spirit and reason of the statute, where a literal meaning
would lead to absurdity, contradiction, injustice, or would defeat the clear
purpose of the lawmakers.59
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals is partly REVERSED. The Decision of the Regional Trial Court in
Ilocos Norte is Reinstated.
SO ORDERED.

Considering that the description of the eastern boundary of Marcos under

R.A. No. 3753 is ambiguous, the same must be interpreted in light of the
legislative intent.

The law must be given a reasonable interpretation, to preclude absurdity

in its application.55 We thus uphold the legislative intent to create Marcos
out of the territory of Dingras only.

Courts must give effect to the general legislative intent that can be
discovered from or is unraveled by the four corners of the statute, and in
order to discover said intent, the whole statute, and not only a particular
provision thereof, should be considered.56 Every section, provision or
clause of the statute must be expounded by reference to each other in
order to arrive at the effect contemplated by the legislature. The intention
of the legislator must be ascertained from the whole text of the law, and
every part of the act is to be taken into view.57

It is axiomatic that laws should be given a reasonable interpretation, not

one which defeats the very purpose for which they were passed. This
Court has in many cases involving the construction of statutes always
cautioned against narrowly interpreting a statute as to defeat the purpose
of the legislature and stressed that it is of the essence of judicial duty to
construe statutes so as to avoid such a deplorable result (of injustice or
absurdity) and that therefore "a literal interpretation is to be rejected if it
would be unjust or lead to absurd results."58

Statutes are to be construed in the light of the purposes to be achieved

and the evils sought to be remedied. Thus, in construing a statute, the

161
 G.R. No. 106719 September 21, 1993
DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ, JR.,
ENGR. CONRADO REY MATIAS, Ms. CORA S. SOLIS and Ms.
ENYA N. LOPEZ, petitioners,
vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M.
VASQUEZ, and NCMH NURSES ASSOCIATION, represented by
RAOULITO GAYUTIN, respondents.
QUIASON, J.:
This is a Petition for Certiorari, Prohibition and Mandamus, with
Prayer for Preliminary Injunction or Temporary Restraining Order,
under Rule 65 of the Revised Rules of Court.
Principally, the petition seeks to nullify the Order of the
Ombudsman dated January 7, 1992, directing the preventive
suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C. Banez, Jr.,
Administrative Officer III; Conrado Rey Matias, Technical Assistant
to the Chief of Hospital; Cora C. Solis, Accountant III; and Enya N.
Lopez, Supply Officer III, all of the National Center for Mental
Health. The petition also asks for an order directing the
Ombudsman to disqualify Director Raul Arnaw and Investigator
Amy de Villa-Rosero, of the Office of the Ombudsman, from
participation in the preliminary investigation of the charges against
petitioner (Rollo, pp. 2-17; Annexes to Petition, Rollo, pp. 19-21).
The questioned order was issued in connection with the
administrative complaint filed with the Ombudsman (OBM-
ADM-0-91-0151) by the private respondents against the petitioners
for violation of the Anti-Graft and Corrupt Practices Act.
According to the petition, the said order was issued upon the
recommendation of Director Raul Arnaw and Investigator Amy de
Villa-Rosero, without affording petitioners the opportunity to
162
controvert the charges filed against them. Petitioners had sought to
disqualify Director Arnaw and Investigator Villa-Rosero for
manifest partiality and bias (Rollo, pp. 4-15).
On September 10, 1992, this Court required respondents' Comment
on the petition.
On September 14 and September 22, 1992, petitioners filed a
"Supplemental Petition (Rollo, pp. 124-130); Annexes to
Supplemental Petition; Rollo pp. 140-163) and an "Urgent
Supplemental Manifestation" (Rollo, pp. 164-172; Annexes to
Urgent Supplemental Manifestation; Rollo, pp. 173-176),
respectively, averring developments that transpired after the filing
of the petition and stressing the urgency for the issuance of the
writ of preliminary injunction or temporary restraining order.
On September 22, 1992, this Court ". . . Resolved to REQUIRE the
respondents to MAINTAIN in the meantime, the STATUS QUO
pending filing of comments by said respondents on the original
supplemental manifestation" (Rollo, p. 177).
On September 29, 1992, petitioners filed a motion to direct
respondent Secretary of Health to comply with the Resolution
dated September 22, 1992 (Rollo, pp. 182-192, Annexes, pp.
192-203). In a Resolution dated October 1, 1992, this Court
required respondent Secretary of Health to comment on the said
motion.
On September 29, 1992, in a pleading entitled "Omnibus
Submission," respondent NCMH Nurses Association submitted its
Comment to the Petition, Supplemental Petition and Urgent
Supplemental Manifestation. Included in said pleadings were the
motions to hold the lawyers of petitioners in contempt and to
disbar them (Rollo, pp. 210-267). Attached to the "Omnibus
Submission" as annexes were the orders and pleadings filed in
Administrative Case No. OBM-ADM-0-91-1051 against petitioners
(Rollo, pp. 268-480).

The Motion for Disbarment charges the lawyers of petitioners with:
(1) unlawfully advising or otherwise causing or inducing their
clients — petitioners Buenaseda, et al., to openly defy, ignore,
disregard, disobey or otherwise violate, maliciously evade their
preventive suspension by Order of July 7, 1992 of the
Ombudsman . . ."; (2) "unlawfully interfering with and obstructing
the implementation of the said order (Omnibus Submission, pp.
50-52; Rollo, pp. 259-260); and (3) violation of the Canons of the
Code of Professional Responsibility and of unprofessional and
unethical conduct "by foisting blatant lies, malicious falsehood and
outrageous deception" and by committing subornation of perjury,
falsification and fabrication in their pleadings (Omnibus
Submission, pp. 52-54; Rollo, pp. 261-263).
On November 11, 1992, petitioners filed a "Manifestation and
Supplement to 'Motion to Direct Respondent Secretary of Health to
Comply with 22 September 1992 Resolution'" (Manifestation
attached to Rollo without pagination between pp. 613 and 614
thereof).
On November 13, 1992, the Solicitor General submitted its
Comment dated November 10, 1992, alleging that:
(a)"despite the issuance of the September 22, 1992 Resolution
directing respondents to maintain the status quo, respondent
Secretary refuses to hold in abeyance the implementation of
petitioners' preventive suspension;
(b) the clear intent and spirit of the Resolution dated September
22, 1992 is to hold in abeyance the implementation of
petitioners' preventive suspension, the status quo obtaining the
time of the filing of the instant petition;
(c) respondent Secretary's acts in refusing to hold in abeyance
implementation of petitioners' preventive suspension and in
tolerating and approving the acts of Dr. Abueva, the OIC
163
appointed to replace petitioner Buenaseda, are in violation of
the Resolution dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to comply
with the Resolution dated September 22, 1992 immediately, by
restoring the status quo ante contemplated by the aforesaid
resolution" (Comment attached to Rollo without paginations
between pp. 613-614 thereof).
In the Resolution dated November 25, 1992, this Court required
respondent Secretary to comply with the aforestated status quo
order, stating inter alia, that:
It appearing that the status quo ante litem motam, or the last
peaceable uncontested status which preceded the present
controversy was the situation obtaining at the time of the filing of
the petition at bar on September 7, 1992 wherein petitioners were
then actually occupying their respective positions, the Court hereby
ORDERS that petitioners be allowed to perform the duties of their
respective positions and to receive such salaries and benefits as
they may be lawfully entitled to, and that respondents and/or any
and all persons acting under their authority desist and refrain from
performing any act in violation of the aforementioned Resolution
of September 22, 1992 until further orders from the Court
(Attached to Rollo after p. 615 thereof).
On December 9, 1992, the Solicitor General, commenting on the
Petition, Supplemental Petition and Supplemental Manifestation,
stated that (a) "The authority of the Ombudsman is only to
recommend suspension and he has no direct power to suspend;"
and (b) "Assuming the Ombudsman has the power to directly
suspend a government official or employee, there are conditions
required by law for the exercise of such powers; [and] said
conditions have not been met in the instant case" (Attached to
Rollo without pagination).
In the pleading filed on January 25, 1993, petitioners adopted the
position of the Solicitor General that the Ombudsman can only
suspend government officials or employees connected with his
office. Petitioners also refuted private respondents' motion to disbar
petitioners' counsel and to cite them for contempt (Attached to
Rollo without pagination).
The crucial issue to resolve is whether the Ombudsman has the
power to suspend government officials and employees working in
offices other than the Office of the Ombudsman, pending the
investigation of the administrative complaints filed against said
officials and employees.
In upholding the power of the Ombudsman to preventively
suspend petitioners, respondents (Urgent Motion to Lift Status
Quo, etc, dated January 11, 1993, pp. 10-11), invoke Section 24 of
R.A. No. 6770, which provides:
Sec. 24. Preventive Suspension. — The Ombudsman or his
Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance
of duty; (b) the charge would warrant removal from the
service; or (c) the respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of Ombudsman but not more than six
months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided.
164
Respondents argue that the power of preventive suspension given
the Ombudsman under Section 24 of R.A. No. 6770 was
contemplated by Section 13 (8) of Article XI of the 1987
Constitution, which provides that the Ombudsman shall exercise
such other power or perform such functions or duties as may be
provided by law."
On the other hand, the Solicitor General and the petitioners claim
that under the 1987 Constitution, the Ombudsman can only
recommend to the heads of the departments and other agencies the
preventive suspension of officials and employees facing
administrative investigation conducted by his office. Hence, he
cannot order the preventive suspension himself.
They invoke Section 13(3) of the 1987 Constitution which provides
that the Office of the Ombudsman shall have inter alia the power,
function, and duty to:
Direct the officer concerned to take appropriate action against
a public official or employee at fault, and recommend his
removal, suspension, demotion, fine, censure or prosecution,
and ensure compliance therewith.
The Solicitor General argues that under said provision of the
Constitutions, the Ombudsman has three distinct powers, namely:
(1) direct the officer concerned to take appropriate action against
public officials or employees at fault; (2) recommend their
removal, suspension, demotion fine, censure, or prosecution; and
(3) compel compliance with the recommendation (Comment dated
December 3, 1992, pp. 9-10).
The line of argument of the Solicitor General is a siren call that can
easily mislead, unless one bears in mind that what the Ombudsman
imposed on petitioners was not a punitive but only a preventive
suspension.
When the constitution vested on the Ombudsman the power "to
recommend the suspension" of a public official or employees (Sec.
13 [3]), it referred to "suspension," as a punitive measure. All the
words associated with the word "suspension" in said provision
referred to penalties in administrative cases, e.g. removal,
demotion, fine, censure. Under the rule of Noscitor a sociis, the
word "suspension" should be given the same sense as the other
words with which it is associated. Where a particular word is
equally susceptible of various meanings, its correct construction
may be made specific by considering the company of terms in
which it is found or with which it is associated (Co Kim Chan v.
Valdez Tan Keh, 75 Phil. 371 [1945]; Caltex (Phils.) Inc. v. Palomar,
18 SCRA 247 [1966]).
Section 24 of R.A. No. 6770, which grants the Ombudsman the
power to preventively suspend public officials and employees
facing administrative charges before him, is a procedural, not a
penal statute. The preventive suspension is imposed after
compliance with the requisites therein set forth, as an aid in the
investigation of the administrative charges.
Under the Constitution, the Ombudsman is expressly authorized to
recommend to the appropriate official the discipline or prosecution
of erring public officials or employees. In order to make an
intelligent determination whether to recommend such actions, the
Ombudsman has to conduct an investigation. In turn, in order for
him to conduct such investigation in an expeditious and efficient
manner, he may need to suspend the respondent.
The need for the preventive suspension may arise from several
causes, among them, the danger of tampering or destruction of
evidence in the possession of respondent; the intimidation of
witnesses, etc. The Ombudsman should be given the discretion to
decide when the persons facing administrative charges should be
preventively suspended.
165
Penal statutes are strictly construed while procedural statutes are
liberally construed (Crawford, Statutory Construction,
Interpretation of Laws, pp. 460-461; Lacson v. Romero, 92 Phil.
456 [1953]). The test in determining if a statute is penal is
whether a penalty is imposed for the punishment of a wrong to the
public or for the redress of an injury to an individual (59 Corpuz
Juris, Sec. 658; Crawford, Statutory Construction, pp. 496-497). A
Code prescribing the procedure in criminal cases is not a penal
statute and is to be interpreted liberally (People v. Adler, 140 N.Y.
331; 35 N.E. 644).
The purpose of R.A. No. 6770 is to give the Ombudsman such
powers as he may need to perform efficiently the task committed to
him by the Constitution. Such being the case, said statute,
particularly its provisions dealing with procedure, should be given
such interpretation that will effectuate the purposes and objectives
of the Constitution. Any interpretation that will hamper the work
of the Ombudsman should be avoided.
A statute granting powers to an agency created by the Constitution
should be liberally construed for the advancement of the purposes
and objectives for which it was created (Cf. Department of Public
Utilities v. Arkansas Louisiana Gas. Co., 200 Ark. 983, 142 S.W.
(2d) 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E., 438
[1934]).
In Nera v. Garcia, 106 Phil. 1031 [1960], this Court, holding that a
preventive suspension is not a penalty, said:
Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are
established and the person investigated is found guilty of
acts warranting his removal, then he is removed or
dismissed. This is the penalty.
To support his theory that the Ombudsman can only
preventively suspend respondents in administrative cases
 who are employed in his office, the Solicitor General leans
heavily on the phrase "suspend any officer or employee
under his authority" in Section 24 of R.A. No. 6770.
The origin of the phrase can be traced to Section 694 of the
Revised Administrative Code, which dealt with preventive
suspension and which authorized the chief of a bureau or
office to "suspend any subordinate or employee in his
bureau or under his authority pending an
investigation . . . ."
Section 34 of the Civil Service Act of 1959 (R.A. No. 2266), which
superseded Section 694 of the Revised Administrative Code also
authorized the chief of a bureau or office to "suspend any
subordinate officer or employees, in his bureau or under his
authority."
However, when the power to discipline government officials and
employees was extended to the Civil Service Commission by the
Civil Service Law of 1975 (P.D. No. 805), concurrently with the
President, the Department Secretaries and the heads of bureaus
and offices, the phrase "subordinate officer and employee in his
bureau" was deleted, appropriately leaving the phrase "under his
authority." Therefore, Section 41 of said law only mentions that the
proper disciplining authority may preventively suspend "any
subordinate officer or employee under his authority pending an
investigation . . ." (Sec. 41).
The Administrative Code of 1987 also empowered the proper
disciplining authority to "preventively suspend any subordinate
officer or employee under his authority pending an
investigation" (Sec. 51).
The Ombudsman Law advisedly deleted the words "subordinate"
and "in his bureau," leaving the phrase to read "suspend any officer
or employee under his authority pending an investigation . . . ."
The conclusion that can be deduced from the deletion of the word
166
"subordinate" before and the words "in his bureau" after "officer or
employee" is that the Congress intended to empower the
Ombudsman to preventively suspend all officials and employees
under investigation by his office, irrespective of whether they are
employed "in his office" or in other offices of the government. The
moment a criminal or administrative complaint is filed with the
Ombudsman, the respondent therein is deemed to be "in his
authority" and he can proceed to determine whether said
respondent should be placed under preventive suspension.
In their petition, petitioners also claim that the Ombudsman
committed grave abuse of discretion amounting to lack of
jurisdiction when he issued the suspension order without affording
petitioners the opportunity to confront the charges against them
during the preliminary conference and even after petitioners had
asked for the disqualification of Director Arnaw and Atty. Villa-
Rosero (Rollo, pp. 6-13). Joining petitioners, the Solicitor General
contends that assuming arguendo that the Ombudsman has the
power to preventively suspend erring public officials and
employees who are working in other departments and offices, the
questioned order remains null and void for his failure to comply
with the requisites in Section 24 of the Ombudsman Law
(Comment dated December 3, 1992, pp. 11-19).
Being a mere order for preventive suspension, the questioned order of
the Ombudsman was validly issued even without a full-blown hearing
and the formal presentation of evidence by the parties. In Nera, supra,
petitioner therein also claimed that the Secretary of Health could not
preventively suspend him before he could file his answer to the
administrative complaint. The contention of petitioners herein can be
dismissed perfunctorily by holding that the suspension meted out was
merely preventive and therefore, as held in Nera, there was "nothing
improper in suspending an officer pending his investigation and before
tho charges against him are heard . . . (Nera v. Garcia., supra).
There is no question that under Section 24 of R.A. No. 6770, the
Ombudsman cannot order the preventive suspension of a respondent
unless the evidence of guilt is strong and (1) the charts against such
officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (2) the charge
would warrant removal from the service; or (3) the respondent's
continued stay in office may prejudice the case filed against him.
The same conditions for the exercise of the power to preventively
suspend officials or employees under investigation were found in
Section 34 of R.A. No. 2260.
The import of the Nera decision is that the disciplining authority is
given the discretion to decide when the evidence of guilt is strong.
This fact is bolstered by Section 24 of R.A. No. 6770, which expressly
left such determination of guilt to the "judgment" of the Ombudsman
on the basis of the administrative complaint. In the case at bench, the
Ombudsman issued the order of preventive suspension only after: (a)
petitioners had filed their answer to the administrative complaint and
the "Motion for the Preventive Suspension" of petitioners, which
incorporated the charges in the criminal complaint against them
(Annex 3, Omnibus Submission, Rollo, pp. 288-289; Annex 4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to the answer of
petitioners, specifying 23 cases of harassment by petitioners of the
members of the private respondent (Annex 6, Omnibus Submission,
Rollo, pp. 309-333); and (c) a preliminary conference wherein the
complainant and the respondents in the administrative case agreed to
submit their list of witnesses and documentary evidence.
Petitioners herein submitted on November 7, 1991 their list of exhibits
(Annex 8 of Omnibus Submission, Rollo, pp. 336-337) while private
respondents submitted their list of exhibits (Annex 9 of Omnibus
Submission, Rollo, pp. 338-348).
Under these circumstances, it can not be said that Director Raul Arnaw
and Investigator Amy de Villa-Rosero acted with manifest partiality
and bias in recommending the suspension of petitioners. Neither can it
be said that the Ombudsman had acted with grave abuse of discretion
in acting favorably on their recommendation.
The Motion for Contempt, which charges the lawyers of petitioners
with unlawfully causing or otherwise inducing their clients to openly
defy and disobey the preventive suspension as ordered by the
167
Ombudsman and the Secretary of Health can not prosper (Rollo, pp.
259-261). The Motion should be filed, as in fact such a motion was
filed, with the Ombudsman. At any rate, we find that the acts alleged
to constitute indirect contempt were legitimate measures taken by said
lawyers to question the validity and propriety of the preventive
suspension of their clients.
On the other hand, we take cognizance of the intemperate language
used by counsel for private respondents hurled against petitioners and
their counsel (Consolidated: (1) Comment on Private Respondent"
"Urgent Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private
Respondent's Comment and Supplemental Comment, pp. 4-5).
A lawyer should not be carried away in espousing his client's cause.
The language of a lawyer, both oral or written, must be respectful and
restrained in keeping with the dignity of the legal profession and with
his behavioral attitude toward his brethren in the profession (Lubiano
v. Gordolla, 115 SCRA 459 [1982]). The use of abusive language by
counsel against the opposing counsel constitutes at the same time a
disrespect to the dignity of the court of justice. Besides, the use of
impassioned language in pleadings, more often than not, creates more
heat than light.
The Motion for Disbarment (Rollo, p. 261) has no place in the instant
special civil action, which is confined to questions of jurisdiction or
abuse of discretion for the purpose of relieving persons from the
arbitrary acts of judges and quasi-judicial officers. There is a set of
procedure for the discipline of members of the bar separate and apart
from the present special civil action.
WHEREFORE, the petition is DISMISSED and the Status quo ordered
to be maintained in the Resolution dated September 22, 1992 is
LIFTED and SET ASIDE.
SO ORDERED.
 G.R. No. 79094 June 22, 1988
MANOLO P. FULE, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
MELENCIO-HERRERA, J.:
This is a Petition for Review on certiorari of the Decision of
respondent Appellate Court, which affirmed the judgment of the
Regional Trial Court, Lucena City, Branch LIV, convicting petitioner
(the accused-appellant) of Violation of Batas Pambansa Blg. 22
(The Bouncing Checks Law) on the basis of the Stipulation of Facts
entered into between the prosecution and the defense during the
pre-trial conference in the Trial Court. The facts stipulated upon
read:
a) That this Court has jurisdiction over the person and subject
matter of this case;
b) That the accused was an agent of the Towers Assurance
Corporation on or before January 21, 1981;
c) That on January 21, 1981, the accused issued and made out
check No. 26741, dated January 24, 1981 in the sum of P2,541.05;
d) That the said check was drawn in favor of the complaining
witness, Roy Nadera;
e) That the check was drawn in favor of the complaining
witness in remittance of collection;
f) That the said check was presented for payment on January
24, 1981 but the same was dishonored for the reason that the said
checking account was already closed;
168
g) That the accused Manolo Fule has been properly Identified as
the accused party in this case.
At the hearing of August 23, 1985, only the prosecution presented
its evidence consisting of Exhibits "A," "B" and "C." At the
subsequent hearing on September 17, 1985, petitioner-appellant
waived the right to present evidence and, in lieu thereof, submitted
a Memorandum confirming the Stipulation of Facts. The Trial Court
convicted petitioner-appellant.
On appeal, respondent Appellate Court upheld the Stipulation of
Facts and affirmed the judgment of conviction. 1
Hence, this recourse, with petitioner-appellant contending that:
The Honorable Respondent Court of Appeals erred in the decision
of the Regional Trial Court convicting the petitioner of the offense
charged, despite the cold fact that the basis of the conviction was
based solely on the stipulation of facts made during the pre-trial on
August 8, 1985, which was not signed by the petitioner, nor by his
counsel.
Finding the petition meritorious, we resolved to give due course.
The 1985 Rules on Criminal Procedure, which became effective on
January 1, 1985, applicable to this case since the pre-trial was held
on August 8, 1985, provides:
SEC. 4. Pre-trial agreements must be signed. — No agreement
or admission made or entered during the pre-trial conference
shall be used in evidence against the accused unless reduced to
writing and signed by him and his counsel. (Rule 118)
[Emphasis supplied]
By its very language, the Rule is mandatory. Under the rule of
statutory construction, negative words and phrases are to be
regarded as mandatory while those in the affirmative are merely
directory (McGee vs. Republic, 94 Phil. 820 [1954]). The use of the SO ORDERED.
term "shall" further emphasizes its mandatory character and means
that it is imperative, operating to impose a duty which may be
enforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84
SCRA 176). And more importantly, penal statutes whether
substantive and remedial or procedural are, by consecrated rule, to
be strictly applied against the government and liberally in favor of
the accused (People vs. Terrado No. L-23625, November 25, 1983,
125 SCRA 648).

The conclusion is inevitable, therefore, that the omission of the

signature of the accused and his counsel, as mandatorily required
by the Rules, renders the Stipulation of Facts inadmissible in
evidence. The fact that the lawyer of the accused, in his
memorandum, confirmed the Stipulation of Facts does not cure the
defect because Rule 118 requires both the accused and his counsel
to sign the Stipulation of Facts. What the prosecution should have
done, upon discovering that the accused did not sign the
Stipulation of Facts, as required by Rule 118, was to submit
evidence to establish the elements of the crime, instead of relying
solely on the supposed admission of the accused in the Stipulation
of Facts. Without said evidence independent of the admission, the
guilt of the accused cannot be deemed established beyond
reasonable doubt.

Consequently, under the circumstances obtaining in this case, the

ends of justice require that evidence be presented to determine the
culpability of the accused. When a judgment has been entered by
consent of an attorney without special authority, it will sometimes
be set aside or reopened (Natividad vs. Natividad, 51 Phil. 613
[1928]).

WHEREFORE, the judgment of respondent Appellate Court is

REVERSED and this case is hereby ordered RE-OPENED and
REMANDED to the appropriate Branch of the Regional Trial Court
of Lucena City, for further reception of evidence.

169
 PURITA BERSABAL, Petitioner,
v.
HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the
Court of First Instance of Caloocan City, Branch XIV, TAN THAT
and ONG PIN TEE, Respondents.
1. APPEAL TO THE COURT OF FIRST INSTANCE; BASIS OF
DECISION; REQUEST FOR SUBMISSION OF MEMORANDUM;
SECTION 45, R.A.. 296 AS AMENDED BY R.A.. NO. 6031. —
Section 45, R.A.. 296, as amended by R.A.. No. 6031 specifically
provides that Courts of First Instance shall decide cases appealed to
them from the city courts and the municipal courts on the basis of
the evidence and records transmitted from such courts, provided,
that the parties may submit memoranda and/or brief with oral
argument if so requested.
2. ID.; ID.; ID.; ID.; PARTIES MAY WAIVE SUBMISSION OF
MEMORANDA; COURT MAY NOT DISMISS APPEAL FOR FAILURE
TO SUBMIT MEMORANDUM. — It is clear from the provision of
Section 45, R.A.. 296, as amended by R.A..6031 that the
submission of memoranda is optional on the part of the parties.
Hence, a party may choose to waive such submission. As a logical
concomitant of the choice given to the parties, the Court is not
empowered by law to dismiss the appeal on the mere failure of an
appellant to submit his memorandum, but rather it is the Court’s
mandatory duty to decide the case on the basis of the available
evidence and records transmitted to it.
3. S TAT U T O RY C O N S T R U C T I O N ; W O R D " M AY " I S
PERMISSIVE, "SHALL" IS MANDATORY. — As a general rule, the
word "may" when used in a statute is permissive only and operates
to confer discretion; while the word "shall" is imperative, operating
to impose a duty which may be enforced.
4. APPEAL; SECTION 45, R.A.. 296, AS AMENDED BY R.A..
6031; COURT OF FIRST INSTANCE MUST DECIDE APPEAL ON
170
THE MERITS REGARDLESS OF NON-SUBMISSION OF
MEMORANDUM. — The law is clear that failure of a party-
appellant to submit a memorandum requested by the Court of First
Instance, leaves the Court with no alternative but to decide the
appealed case on the basis of the evidence and records transmitted
from the city or municipal court, since memoranda, briefs and oral
arguments are not essential requirements but may be submitted
and/or made only if so requested. A contrary interpretation would
be unjust and dangerous as it may defeat the litigant’s right to
appeal granted to him by law.
5. ID.; RIGHT TO APPEAL MAY NOT BE DENIED EXCEPT FOR
WEIGHTY REASONS. — The courts must proceed with caution so
that a party may not be deprived of his right to appeal except for
weighty reasons.
6. ID.; GRANT OF EXTENSION OF TIME TO FILE
MEMORANDUM; COURT CAN ACT ON THE CASE ONLY AFTER
EXPIRATION OF THE PERIOD GRANTED. — Where the Court of
First Instance grants a party a 30-day period after notice of
submission of the transcript of the stenographic notes by the city or
municipal court within which to submit his memorandum, it is only
after the expiration of such period can the respondent Judge act on
the case by deciding it on the merits, not by dismissing the appeal.
MAKASIAR, J.:
On March 23, 1972, petitioner Purita Bersabal seeks to annul the
orders of respondent Judge of August 4, 1971, October 30, 1971
and March 15, 1972 and to compel said respondent Judge to
decide petitioner's perfected appeal on the basis of the evidence
and records of the case submitted by the City Court of Caloocan
City plus the memorandum already submitted by the petitioner and
respondents.
Since only questions of law were raised therein, the Court of
Appeals, on October 13, 1972, issued a resolution certifying said
case to this Court pursuant to Section 17, paragraph (4) of the
Judiciary Act of 1948, as amended.
As found by the Court of Appeals, the facts of this case are as
follows:
It appears that private respondents Tan That and Ong Pin Tee filed
an ejectment suit, docketed as Civil Case No. 6926 in the City
Court of Caloocan City, against the petitioner. A decision was
rendered by said Court on November 25, 1970, which decision was
appealed by the petitioner to the respondent Court and docketed
therein as Civil Case No. C-2036.
During the pendency of the appeal the respondent court issued on
March 23, 1971 an order which reads:
Pursuant to the provisions of Rep. Act No. 6031, the Clerk of Court
of Caloocan City, is hereby directed to transmit to this Court within
fifteen (15) days from receipt hereof the transcripts of stenographic
notes taken down during the hearing of this case before the City
Court of Caloocan City, and likewise, counsels for both parties are
given thirty (30) days from receipt of this order within which to file
their respective memoranda, and thereafter, this case shall be
deemed submitted for decision by this Court.
which order was apparently received by petitioner on April 17,
1971.
The transcript of stenographic notes not having yet been forwarded
to the respondent court, petitioner filed on May 5, 1971 a
'MOTION EX-PARTE TO SUBMIT MEMORANDUM WITHIN 30
DAYS FROM RECEIPT OF NOTICE OF SUBMISSION OF THE
TRANSCRIPT OF STENOGRAPHIC NOTES TAKEN DURING THE
HEARING OF THE CASE BEFORE THE CITY COURT OF
CALOOCAN CITY' which was granted by respondent court on May
7, 1971. However, before the petitioner could receive any such
171
notice from the respondent court, the respondent Judge issued an
order on August 4, 1971 which says:
For failure of the defendant-appellant to prosecute her appeal the
same is hereby ordered DISMISSED with costs against her.
Petitioner filed a motion for reconsideration of the order on
September 28, 1971, citing as a ground the granting of his ex-parte
motion to submit memorandum within 30 days from notice of the
submission of the stenographic notes taken before the City Court.
Private respondents filed their opposition to the motion on
September 30,1971. In the meantime, on October 20,1971,
petitioner filed her memorandum dated October 18, 1971. On
October 30, 1971 the respondent Court denied the motion for
reconsideration. Then on January 25, 1972, petitioner filed a
motion for leave to file second motion for reconsideration which
was likewise denied by the respondent court on March 15, 1972.
Hence this petition.
The sole inquiry in the case at bar can be stated thus: Whether, in
the light of the provisions of the second paragraph of Section 45 of
Republic Act No. 296, as amended by R.A. No. 6031, the mere
failure of an appellant to submit on nine the memorandum
mentioned in the same paragraph would empower the Court of
First Instance to dismiss the appeal on the ground of failure to
Prosecute; or, whether it is mandatory upon said Court to proceed
to decide the appealed case on the basis of the evidence and
records transmitted to it, the failure of the appellant to submit a
memorandum on time notwithstanding.
The second paragraph of Section 45 of R.A. No. 296, otherwise
known as the Philippine Judiciary Act of 1948, as amended by R.A.
No. 6031 provides, in part, as follows:
Courts of First Instance  shall  decide such appealed cases on the
basis of the evidence and records transmitted from the city or
m u n i c i p a l c o u r t s : P r o v i d e d , T h a t t h e p a r t i e s  m a y
submit  memoranda and/or brief with oral argument  if so
requested ... . (Emphasis supplied).
The foregoing provision is clear and leaves no room for doubt. It
cannot be interpreted otherwise than that the submission of
memoranda is optional on the part of the parties. Being optional on
the part of the parties, the latter may so choose to waive
submission of the memoranda. And as a logical concomitant of the
choice given to the Parties, the Court cannot dismiss the appeal of
the party waiving the submission of said memorandum the
appellant so chooses not to submit the memorandum, the Court of
First Instance is left with no alternative but to decide the case on
the basis of the evidence and records transmitted from the city or
municipal courts. In other words, the Court is not empowered by
law to dismiss the appeal on the mere failure of an appellant to
submit his memorandum, but rather it is the Court's mandatory
duty to decide the case on the basis of the available evidence and
records transmitted to it.
As a general rule, the word "may" when used in a statute is
permissive only and operates to confer discretion; while the word
"shall" is imperative, operating to impose a duty which may be
enforced (Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA
714, 716-717). The implication is that the Court is left with no
choice but to decide the appealed case either on the basis of the
evidence and records transmitted to it, or on the basis of the latter
plus memoranda and/or brief with oral argument duly submitted
and/or made on request.
Moreover, memoranda, briefs and oral arguments are not essential
requirements. They may be submitted and/or made only if so
requested.
Finally, a contrary interpretation would be unjust and dangerous as
it may defeat the litigant's right to appeal granted to him by law. In
the case of Republic vs. Rodriguez 

(L-26056, May 29, 1969, 28 SCRA 378) this Court underscored
172
"the need of proceeding with caution so that a party may not be
deprived of its right to appeal except for weighty reasons." Courts
should heed the rule in Municipality of Tiwi, Albay vs. Cirujales 

(L-37520, Dec. 26, 1973, 54 SCRA 390, 395), thus:
The appellate court's summary dismissal of the appeal even before
receipt of the records of the appealed case as ordered by it in a
prior mandamus case must be set aside as having been issued
precipitously and without an opportunity to consider and
appreciate unavoidable circumstances of record not attributable to
petitioners that caused the delay in the elevation of the records of
the case on appeal.
In the instant case, no notice was received by petitioner about the
submission of the transcript of the stenographic notes, so that his
30-day period to submit his memorandum would commence to
run. Only after the expiration of such period can the respondent
Judge act on the case by deciding it on the merits, not by
dismissing the appeal of petitioner.
WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT
JUDGE DATED AUGUST 4, 1971, OCTOBER 30, 1971 AND
MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID
AND THE RESPONDENT COURT IS HEREBY DIRECTED TO
DECIDE CIVIL CASE NO. C-2036 ON THE MERITS. NO COSTS.
 G.R. No. 167982 August 13, 2008
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
MERCEDITAS DE SAHAGUN, MANUELA T. WAQUIZ and RAIDIS
J. BASSIG, respondent.*
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule
45 of the Rules of Court assailing the Decision1 dated April 28,
2005 of the Court of Appeals (CA) in CA-G.R. SP No. 78008 which
set aside the Orders dated March 10, 2003 and June 24, 2003 of
the petitioner Office of the Ombudsman in OMB-ADM-0-00-0721.
The material antecedents are as follows:
On November 13, 1992, respondent Raidis J. Bassig, Chief of the
Research and Publications Division of the Intramuros
Administration, submitted a Memorandum to then Intramuros
Administrator Edda V. Henson (Henson) recommending that Brand
Asia, Ltd. be commissioned to produce a video documentary for a
television program, as well implement a media plan and marketing
support services for Intramuros.
On November 17, 1992, the Bids and Awards Committee (BAC) of
the Intramuros Administration, composed of respondent
Merceditas de Sahagun, as Chairman, with respondent Manuela T.
Waquiz and Dominador C. Ferrer, Jr. (Ferrer), as members,
submitted a recommendation to Henson for the approval of the
award of said contract to Brand Asia, Ltd. On the same day, Henson
approved the recommendation and issued a Notice of Award to
Brand Asia, Ltd.
On November 23, 1992, a contract of service to produce a video
documentary on Intramuros for TV program airing was executed
173
between Henson and Brand Asia, Ltd. On December 1, 1992, a
Notice to Proceed was issued to Brand Asia, Ltd.
On June 2, 1993, the BAC, with Augusto P. Rustia (Rustia) as
additional member, recommended to Henson the approval of the
award of contract for print collaterals to Brand Asia, Ltd. On the
same day, Henson approved the recommendation and issued a
Notice of Award/Notice to Proceed to Brand Asia, Ltd.
On June 22, 1993, a contract of services to produce print
collaterals was entered between Henson and Brand Asia, Ltd.
On March 7, 1995, an anonymous complaint was filed with the
Presidential Commission Against Graft and Corruption (PGAC)
against Henson in relation to the contracts entered into with Brand
Asia, Ltd.
On November 30, 1995, Henson was dismissed from the service by
the Office of the President upon recommendation of the PGAC
which found that the contracts were entered into without the
required public bidding and in violation of Section 3 (a) and (e) of
Republic Act (R.A.) No. 3019, or the Anti-Graft and Corrupt
Practices Act.
On August 8, 1996, an anonymous complaint was filed with the
Ombudsman against the BAC in relation to the latter’s participation
in the contracts with Brand Asia, Ltd. for which Henson was
dismissed from service.
On September 5, 2000, Fact-Finding Intelligence Bureau (FFIB)
filed criminal and administrative charges against respondents,
along with Ferrer and Rustia, for violation of Section 3 (a) and (c)
of R.A. No. 3019 in relation to Section 1 of Executive Order No.
302 and grave misconduct, conduct grossly prejudicial to the best
interest of the service and gross violation of Rules and Regulations
pursuant to the Administrative Code of 1987, docketed as
OMB-0-00-1411 and OMB-ADM-0-00-0721, respectively.2
OMB-0-00-1411 was dismissed on February 27, 2002 for lack of
probable cause.3
In his proposed Decision4 dated June 19, 2002, Graft Investigation
Officer II Joselito P. Fangon recommended the dismissal of OMB-
ADM-0-00-0721.
However, then Ombudsman Simeon V. Marcelo disapproved the
recommendation. In an Order5 dated March 10, 2003, he held that
there was substantial evidence to hold respondents
administratively liable since the contracts awarded to Brand Asia,
Ltd. failed to go through the required procedure for public bidding
under Executive Order No. 301 dated July 26, 1987. Respondents
and Ferrer were found guilty of grave misconduct and dismissed
from service. Rustia was found guilty of simple misconduct and
suspended for six months without pay.
On March 17, 2003, respondents, along with Rustia, filed a Motion
for Reconsideration.6
On June 24, 2003, Ombudsman Marcelo issued an Order7 partially
granting the motion for reconsideration. Respondents and Ferrer
were found guilty of the lesser offense of simple misconduct and
suspended for six months without pay. Rustia's suspension was
reduced to three months.
Dissatisfied, respondents filed a Petition for Review8 with the CA
assailing the Orders dated March 10, 2003 and June 24, 2003 of
the Ombudsman.
On April 28, 2005, the CA rendered a Decision9 setting aside the
Orders dated March 10, 2003 and June 24, 2003 of the
Ombudsman. The CA held that respondents may no longer be
prosecuted since the complaint was filed more than seven years
after the imputed acts were committed which was beyond the one
year period provided for by Section 20 (5) of Republic Act (R.A.)
No. 6770, otherwise known as "The Ombudsman Act of 1989"; and
174
that the nature of the function of the Ombudsman was purely
recommendatory and it did not have the power to penalize erring
government officials and employees. The CA relied on the following
statement made by the Court in Tapiador v. Office of the Ombudsman,
10 to wit:
x x x Besides, assuming arguendo, that petitioner [Tapiador]
was administratively liable, the Ombudsman has no authority
to directly dismiss the petitioner from the government service,
more particularly from his position in the BID. Under Section
13, subparagraph 3, of Article XI of the 1987 Constitution, the
Ombudsman can only "recommend" the removal of the public
official or employee found to be at fault, to the public official
concerned.11 (Emphasis supplied)
Hence, the present petition raising the following issues (1) whether
Section 20 (5) of R.A. No. 6770 prohibits administrative investigations
in cases filed more than one year after commission, and (2) whether
the Ombudsman only has recommendatory, not punitive, powers
against erring government officials and employees.
The Court rules in favor of the petitioner.
The issues in the present case are settled by precedents.
On the first issue, well-entrenched is the rule that administrative
offenses do not prescribe.12 Administrative offenses by their very
nature pertain to the character of public officers and employees. In
disciplining public officers and employees, the object sought is not the
punishment of the officer or employee but the improvement of the
public service and the preservation of the public’s faith and confidence
in our government.13
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions. – The Office of the Ombudsman may not
conduct the necessary investigation of any administrative act or
omission complained of if it believes that:
 xxx
(5) The complaint was filed after one year from the occurrence of
the act or omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or omission if the
complaint was filed after one year from the occurrence of the
complained act or omission.
In Melchor v. Gironella,14 the Court held that the period stated in
Section 20(5) of R.A. No. 6770 does not refer to the prescription of
the offense but to the discretion given to the Ombudsman on whether
it would investigate a particular administrative offense. The use of the
word "may" in the provision is construed as permissive and operating
to confer discretion.15 Where the words of a statute are clear, plain
and free from ambiguity, they must be given their literal meaning and
applied without attempted interpretation.16
In Filipino v. Macabuhay,17 the Court interpreted Section 20 (5) of
R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned provision
[Section 20(5) of RA 6770)], respondent's complaint is barred by
prescription considering that it was filed more than one year after the
alleged commission of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature
and not mandatory as petitioner contends. When used in a statute, it
is permissive only and operates to confer discretion; while the word
"shall" is imperative, operating to impose a duty which may be
enforced. Applying Section 20(5), therefore, it is discretionary upon
the Ombudsman whether or not to conduct an investigation on a
complaint even if it was filed after one year from the occurrence of the
act or omission complained of. In fine, the complaint is not barred by
prescription.18 (Emphasis supplied)
The declaration of the CA in its assailed decision that while as a
general rule the word "may" is directory, the negative phrase "may not"
175
is mandatory in tenor; that a directory word, when qualified by the
word "not," becomes prohibitory and therefore becomes mandatory in
character, is not plausible. It is not supported by jurisprudence on
statutory construction.
As the Court recently held in Office of the Ombudsman v. Court of
Appeals,19 Section 20 of R.A. No. 6770 has been clarified by
Administrative Order No. 17,20 which amended Administrative Order
No. 07, otherwise known as the Rules of Procedure of the Office of the
Ombudsman. Section 4, Rule III21 of the amended Rules of Procedure
of the Office of the Ombudsman reads:
Section 4. Evaluation. - Upon receipt of the complaint, the same
shall be evaluated to determine whether the same may be:
a) dismissed outright for any grounds stated under Section 20 of
Republic Act No. 6770, provided, however, that the dismissal
thereof is not mandatory and shall be discretionary on the part of
the Ombudsman or the Deputy Ombudsman concerned;
b) treated as a grievance/request for assistance which may be
referred to the Public Assistance Bureau, this Office, for
appropriate action under Section 2, Rule IV of this Rules;
c) referred to other disciplinary authorities under paragraph 2,
Section 23, R.A. 6770 for the taking of appropriate
administrative proceedings;
d) referred to the appropriate office/agency or official for the
conduct of further fact-finding investigation; or
e) docketed as an administrative case for the purpose of
administrative adjudication by the Office of the Ombudsman.
(Emphasis supplied)
It is, therefore, discretionary upon the Ombudsman whether or not to
conduct an investigation of a complaint even if it was filed after one
year from the occurrence of the act or omission complained of.
Thus, while the complaint herein was filed only on September 5,
2000, or more than seven years after the commission of the acts
imputed against respondents in November 1992 and June 1993, it was
within the authority of the Ombudsman to conduct the investigation
of the subject complaint.
On the second issue, the authority of the Ombudsman to determine
the administrative liability of a public official or employee, and to
direct and compel the head of the office or agency concerned to
implement the penalty imposed is likewise settled.
In Ledesma v. Court of Appeals,22 the Court has ruled that the
statement in Tapiador that made reference to the power of the
Ombudsman to impose an administrative penalty was merely an obiter
dictum and could not be cited as a doctrinal declaration of this Court,
thus:
x x x [A] cursory reading of Tapiador reveals that the main point of
the case was the failure of the complainant therein to present
substantial evidence to prove the charges of the administrative case.
The statement that made reference to the power of the Ombudsman
is, at best, merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying interpretations, as
what precisely is before us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from judicial
examination.23 (Emphasis supplied)
In Estarija v. Ranada,24 the Court reiterated its pronouncements in
Ledesma and categorically stated:
x x x [T]he Constitution does not restrict the powers of the
Ombudsman in Section 13, Article XI of the 1987 Constitution, but
allows the Legislature to enact a law that would spell out the powers
of the Ombudsman. Through the enactment of Rep. Act No. 6770,
specifically Section 15, par. 3, the lawmakers gave the Ombudsman
such powers to sanction erring officials and employees, except
members of Congress, and the Judiciary. To conclude, we hold that
Sections 15, 21, 22 and 25 of Republic Act No. 6770 are
constitutionally sound. The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this
176
constitutional body not merely functional but also effective. Thus, we
hold that under Republic Act No. 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove from
government service an erring public official other than a member of
Congress and the Judiciary.25 (Emphasis supplied)
The power of the Ombudsman to directly impose administrative
sanctions has been repeatedly reiterated in the subsequent cases of
Barillo v. Gervasio,26 Office of the Ombudsman v. Madriaga,27 Office
of the Ombudsman v. Court of Appeals,28 Balbastro v. Junio,29
Commission on Audit, Regional Office No. 13, Butuan City v.
Hinampas,30 Office of the Ombudsman v. Santiago,31 Office of the
Ombudsman v. Lisondra,32 and most recently in Deputy Ombudsman
for the Visayas v. Abugan33 and continues to be the controlling
doctrine.
In fine, it is already well-settled that the Ombudsman's power as
regards the administrative penalty to be imposed on an erring public
officer or employee is not merely recommendatory. The Ombudsman
has the power to directly impose the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public officer or
employee, other than a member of Congress and the Judiciary, found
to be at fault, within the exercise of its administrative disciplinary
authority as provided in the Constitution, R.A. No. 6770, as well as
jurisprudence. This power gives the said constitutional office teeth to
render it not merely functional, but also effective.34
Thus, the CA committed a reversible error in holding that the case had
already prescribed and that the Ombudsman does not have the power
to penalize erring government officials and employees.
WHEREFORE, the petition is GRANTED. The Decision dated April 28,
2005 of the Court of Appeals in CA-G.R. SP No. 78008 is REVERSED
and SET ASIDE. The Order dated June 24, 2003 of the Office of the
Ombudsman is REINSTATED.
SO ORDERED.
 G.R. No. 117188 August 7, 1997
LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION,
INC., petitioner,
vs.
HON. COURT OF APPEALS, HOME INSURANCE AND GUARANTY
CORPORATION, EMDEN ENCARNACION and HORATIO AYCARDO,
respondents.
ROMERO, J.:
May the failure of a corporation to file its by-laws within one month
from the date of its incorporation, as mandated by Section 46 of the
Corporation Code, result in its automatic dissolution?
This is the issue raised in this petition for review on certiorari of the
Decision1 of the Court of Appeals affirming the decision of the Home
Insurance and Guaranty Corporation (HIGC). This quasi-judicial body
recognized Loyola Grand Villas Homeowners Association (LGVHA) as
the sole homeowners' association in Loyola Grand Villas, a duly
registered subdivision in Quezon City and Marikina City that was
owned and developed by Solid Homes, Inc. It revoked the certificates
of registration issued to Loyola Grand Villas homeowners (North)
Association Incorporated (the North Association for brevity) and
Loyola Grand Villas Homeowners (South) Association Incorporated
(the South Association).
LGVHAI was organized on February 8, 1983 as the association of
homeowners and residents of the Loyola Grand Villas. It was
registered with the Home Financing Corporation, the predecessor of
herein respondent HIGC, as the sole homeowners' organization in the
said subdivision under Certificate of Registration No. 04-197. It was
organized by the developer of the subdivision and its first president
was Victorio V. Soliven, himself the owner of the developer. For
unknown reasons, however, LGVHAI did not file its corporate by-laws.
Sometime in 1988, the officers of the LGVHAI tried to register its by-
laws. They failed to do so. 2 To the officers' consternation, they
discovered that there were two other organizations within the
177
subdivision — the North Association and the South Association.
According to private respondents, a non-resident and Soliven himself,
respectively headed these associations. They also discovered that these
associations had five (5) registered homeowners each who were also
the incorporators, directors and officers thereof. None of the members
of the LGVHAI was listed as member of the North Association while
three (3) members of LGVHAI were listed as members of the South
Association.3 The North Association was registered with the HIGC on
February 13, 1989 under Certificate of Registration No. 04-1160
covering Phases West II, East III, West III and East IV. It submitted its
by-laws on December 20, 1988.
In July, 1989, when Soliven inquired about the status of LGVHAI, Atty.
Joaquin A. Bautista, the head of the legal department of the HIGC,
informed him that LGVHAI had been automatically dissolved for two
reasons. First, it did not submit its by-laws within the period required
by the Corporation Code and, second, there was non-user of corporate
charter because HIGC had not received any report on the association's
activities. Apparently, this information resulted in the registration of
the South Association with the HIGC on July 27, 1989 covering Phases
West I, East I and East II. It filed its by-laws on July 26, 1989.
These developments prompted the officers of the LGVHAI to lodge a
complaint with the HIGC. They questioned the revocation of LGVHAI's
certificate of registration without due notice and hearing and
concomitantly prayed for the cancellation of the certificates of
registration of the North and South Associations by reason of the
earlier issuance of a certificate of registration in favor of LGVHAI.
On January 26, 1993, after due notice and hearing, private
respondents obtained a favorable ruling from HIGC Hearing Officer
Danilo C. Javier who disposed of HIGC Case No. RRM-5-89 as follows:
WHEREFORE, judgment is hereby rendered recognizing the Loyola
Grand Villas Homeowners Association, Inc., under Certificate of
Registration No. 04-197 as the duly registered and existing
homeowners association for Loyola Grand Villas homeowners, and
declaring the Certificates of Registration of Loyola Grand Villas
Homeowners (North) Association, Inc. and Loyola Grand Villas
Homeowners (South) Association, Inc. as hereby revoked or cancelled;
that the receivership be terminated and the Receiver is hereby ordered
to render an accounting and turn-over to Loyola Grand Villas
Homeowners Association, Inc., all assets and records of the
Association now under his custody and possession.
The South Association appealed to the Appeals Board of the HIGC. In
its Resolution of September 8, 1993, the Board 4 dismissed the appeal
for lack of merit.
Rebuffed, the South Association in turn appealed to the Court of
Appeals, raising two issues. First, whether or not LGVHAI's failure to
file its by-laws within the period prescribed by Section 46 of the
Corporation Code resulted in the automatic dissolution of LGVHAI.
Second, whether or not two homeowners' associations may be
authorized by the HIGC in one "sprawling subdivision." However, in
the Decision of August 23, 1994 being assailed here, the Court of
Appeals affirmed the Resolution of the HIGC Appeals Board.
In resolving the first issue, the Court of Appeals held that under the
Corporation Code, a private corporation commences to have corporate
existence and juridical personality from the date the Securities and
Exchange Commission (SEC) issues a certificate of incorporation
under its official seal. The requirement for the filing of by-laws under
Section 46 of the Corporation Code within one month from official
notice of the issuance of the certificate of incorporation presupposes
that it is already incorporated, although it may file its by-laws with its
articles of incorporation. Elucidating on the effect of a delayed filing of
by-laws, the Court of Appeals said:
We also find nothing in the provisions cited by the petitioner,
i.e., Section 46 and 22, Corporation Code, or in any other
provision of the Code and other laws which provide or at least
imply that failure to file the by-laws results in an automatic
dissolution of the corporation. While Section 46, in prescribing
that by-laws must be adopted within the period prescribed
therein, may be interpreted as a mandatory provision,
particularly because of the use of the word "must," its meaning
cannot be stretched to support the argument that automatic
dissolution results from non-compliance.
178
We realize that Section 46 or other provisions of the Corporation Code
are silent on the result of the failure to adopt and file the by-laws
within the required period. Thus, Section 46 and other related
provisions of the Corporation Code are to be construed with Section 6
(1) of P.D. 902-A. This section empowers the SEC to suspend or revoke
certificates of registration on the grounds listed therein. Among the
grounds stated is the failure to file by-laws (see also II Campos: The
Corporation Code, 1990 ed., pp. 124-125). Such suspension or
revocation, the same section provides, should be made upon proper
notice and hearing. Although P.D. 902-A refers to the SEC, the same
principles and procedures apply to the public respondent HIGC as it
exercises its power to revoke or suspend the certificates of registration
or homeowners association. (Section 2 [a], E.O. 535, series 1979,
transferred the powers and authorities of the SEC over homeowners
associations to the HIGC.)
We also do not agree with the petitioner's interpretation that Section
46, Corporation Code prevails over Section 6, P.D. 902-A and that the
latter is invalid because it contravenes the former. There is no basis for
such interpretation considering that these two provisions are not
inconsistent with each other. They are, in fact, complementary to each
other so that one cannot be considered as invalidating the other.
The Court of Appeals added that, as there was no showing that the
registration of LGVHAI had been validly revoked, it continued to be
the duly registered homeowners' association in the Loyola Grand
Villas. More importantly, the South Association did not dispute the fact
that LGVHAI had been organized and that, thereafter, it transacted
business within the period prescribed by law.
On the second issue, the Court of Appeals reiterated its previous ruling
5 that the HIGC has the authority to order the holding of a
referendum to determine which of two contending associations should
represent the entire community, village or subdivision.
Undaunted, the South Association filed the instant petition for review
on certiorari. It elevates as sole issue for resolution the first issue it
had raised before the Court of Appeals, i.e., whether or not the
LGVHAI's failure to file its by-laws within the period prescribed by
Section 46 of the Corporation Code had the effect of automatically
dissolving the said corporation.
Petitioner contends that, since Section 46 uses the word "must" with
respect to the filing of by-laws, noncompliance therewith would result
in "self-extinction" either due to non-occurrence of a suspensive
condition or the occurrence of a resolutory condition "under the
hypothesis that (by) the issuance of the certificate of registration alone
the corporate personality is deemed already formed." It asserts that
the Corporation Code provides for a "gradation of violations of
requirements." Hence, Section 22 mandates that the corporation must
be formally organized and should commence transaction within two
years from date of incorporation. Otherwise, the corporation would be
deemed dissolved. On the other hand, if the corporation commences
operations but becomes continuously inoperative for five years, then it
may be suspended or its corporate franchise revoked.
Petitioner concedes that Section 46 and the other provisions of the
Corporation Code do not provide for sanctions for non-filing of the by-
laws. However, it insists that no sanction need be provided "because
the mandatory nature of the provision is so clear that there can be no
doubt about its being an essential attribute of corporate birth." To
petitioner, its submission is buttressed by the facts that the period for
compliance is "spelled out distinctly;" that the certification of the SEC/
HIGC must show that the by-laws are not inconsistent with the Code,
and that a copy of the by-laws "has to be attached to the articles of
incorporation." Moreover, no sanction is provided for because "in the
first place, no corporate identity has been completed." Petitioner
asserts that "non-provision for remedy or sanction is itself the tacit
proclamation that non-compliance is fatal and no corporate existence
had yet evolved," and therefore, there was "no need to proclaim its
demise." 6 In a bid to convince the Court of its arguments, petitioner
stresses that:
. . . the word MUST is used in Sec. 46 in its universal literal meaning
and corollary human implication — its compulsion is integrated in its
very essence — MUST is always enforceable by the inevitable
consequence — that is, "OR ELSE". The use of the word MUST in Sec.
46 is no exception — it means file the by-laws within one month after
notice of issuance of certificate of registration OR ELSE. The OR ELSE,
179
though not specified, is inextricably a part of MUST . Do this or if you
do not you are "Kaput". The importance of the by-laws to corporate
existence compels such meaning for as decreed the by-laws is "the
government" of the corporation. Indeed, how can the corporation do
any lawful act as such without by-laws. Surely, no law is indeed to
create chaos. 7
Petitioner asserts that P.D. No. 902-A cannot exceed the scope and
power of the Corporation Code which itself does not provide sanctions
for non-filing of by-laws. For the petitioner, it is "not proper to assess
the true meaning of Sec. 46 . . . on an unauthorized provision on such
matter contained in the said decree."
In their comment on the petition, private respondents counter that the
requirement of adoption of by-laws is not mandatory. They point to
P.D. No. 902-A as having resolved the issue of whether said
requirement is mandatory or merely directory. Citing Chung Ka Bio v.
Intermediate Appellate Court, 8 private respondents contend that
Section 6(I) of that decree provides that non-filing of by-laws is only a
ground for suspension or revocation of the certificate of registration of
corporations and, therefore, it may not result in automatic dissolution
of the corporation. Moreover, the adoption and filing of by-laws is a
condition subsequent which does not affect the corporate personality
of a corporation like the LGVHAI. This is so because Section 9 of the
Corporation Code provides that the corporate existence and juridical
personality of a corporation begins from the date the SEC issues a
certificate of incorporation under its official seal. Consequently, even if
the by-laws have not yet been filed, a corporation may be considered a
de facto corporation. To emphasize the fact the LGVHAI was registered
as the sole homeowners' association in the Loyola Grand Villas, private
respondents point out that membership in the LGVHAI was an
"unconditional restriction in the deeds of sale signed by lot buyers."
In its reply to private respondents' comment on the petition, petitioner
reiterates its argument that the word " must" in Section 46 of the
Corporation Code is mandatory. It adds that, before the ruling in
Chung Ka Bio v. Intermediate Appellate Court could be applied to this
case, this Court must first resolve the issue of whether or not the
provisions of P.D. No. 902-A prescribing the rules and regulations to
implement the Corporation Code can "rise above and change" the
substantive provisions of the Code.
The pertinent provision of the Corporation Code that is the focal point
of controversy in this case states:
Sec. 46. Adoption of by-laws. — Every corporation formed under
this Code, must within one (1) month after receipt of official
notice of the issuance of its certificate of incorporation by the
Securities and Exchange Commission, adopt a code of by-laws for
its government not inconsistent with this Code. For the adoption
of by-laws by the corporation, the affirmative vote of the
stockholders representing at least a majority of the outstanding
capital stock, or of at least a majority of the members, in the case
of non-stock corporations, shall be necessary. The by-laws shall be
signed by the stockholders or members voting for them and shall
be kept in the principal office of the corporation, subject to the
stockholders or members voting for them and shall be kept in the
principal office of the corporation, subject to inspection of the
stockholders or members during office hours; and a copy thereof,
shall be filed with the Securities and Exchange Commission which
shall be attached to the original articles of incorporation.
Notwithstanding the provisions of the preceding paragraph, by-laws
may be adopted and filed prior to incorporation; in such case, such by-
laws shall be approved and signed by all the incorporators and
submitted to the Securities and Exchange Commission, together with
the articles of incorporation.
In all cases, by-laws shall be effective only upon the issuance by the
Securities and Exchange Commission of a certification that the by-laws
are not inconsistent with this Code.
The Securities and Exchange Commission shall not accept for filing the
by-laws or any amendment thereto of any bank, banking institution,
building and loan association, trust company, insurance company,
public utility, educational institution or other special corporations
governed by special laws, unless accompanied by a certificate of the
appropriate government agency to the effect that such by-laws or
amendments are in accordance with law.
180
As correctly postulated by the petitioner, interpretation of this
provision of law begins with the determination of the meaning and
import of the word "must" in this section Ordinarily, the word "must"
connotes an imperative act or operates to impose a duty which may be
enforced. 9 It is synonymous with "ought" which connotes compulsion
or mandatoriness. 10 However, the word "must" in a statute, like
"shall," is not always imperative. It may be consistent with an exercise
of discretion. In this jurisdiction, the tendency has been to interpret
"shall" as the context or a reasonable construction of the statute in
which it is used demands or requires. 11 This is equally true as regards
the word "must." Thus, if the languages of a statute considered as a
whole and with due regard to its nature and object reveals that the
legislature intended to use the words "shall" and "must" to be
directory, they should be given that meaning.12
In this respect, the following portions of the deliberations of the
Batasang Pambansa No. 68 are illuminating:
MR. FUENTEBELLA. Thank you, Mr. Speaker.
On page 34, referring to the adoption of by-laws, are we
made to understand here, Mr. Speaker, that by-laws must
immediately be filed within one month after the issuance?
In other words, would this be mandatory or directory in
character?
MR. MENDOZA. This is mandatory.
MR. FUENTEBELLA. It being mandatory, Mr. Speaker, what
would be the effect of the failure of the corporation to file
these by-laws within one month?
MR. MENDOZA. There is a provision in the latter part of the
Code which identifies and describes the consequences of
violations of any provision of this Code. One such
consequences is the dissolution of the corporation for its
inability, or perhaps, incurring certain penalties.

MR. FUENTEBELLA. But it will not automatically amount to
a dissolution of the corporation by merely failing to file the
by-laws within one month. Supposing the corporation was
late, say, five days, what would be the mandatory penalty?
MR. MENDOZA. I do not think it will necessarily
result in the automatic or ipso facto dissolution of the
corporation. Perhaps, as in the case, as you suggested, in the
case of El Hogar Filipino where a quo warranto action is
brought, one takes into account the gravity of the violation
committed. If the by-laws were late — the filing of the by-
laws were late by, perhaps, a day or two, I would suppose
that might be a tolerable delay, but if they are delayed over
a period of months — as is happening now — because of
the absence of a clear requirement that by-laws must be
completed within a specified period of time, the corporation
must suffer certain consequences. 13
This exchange of views demonstrates clearly that automatic corporate
dissolution for failure to file the by-laws on time was never the
intention of the legislature. Moreover, even without resorting to the
records of deliberations of the Batasang Pambansa, the law itself
provides the answer to the issue propounded by petitioner.
Taken as a whole and under the principle that the best interpreter of a
statute is the statute itself (optima statuli interpretatix est ipsum
statutum), 14 Section 46 aforequoted reveals the legislative intent to
attach a directory, and not mandatory, meaning for the word "must" in
the first sentence thereof. Note should be taken of the second
paragraph of the law which allows the filing of the by-laws even prior
to incorporation. This provision in the same section of the Code rules
out mandatory compliance with the requirement of filing the by-laws
"within one (1) month after receipt of official notice of the issuance of
its certificate of incorporation by the Securities and Exchange
Commission." It necessarily follows that failure to file the by-laws
within that period does not imply the "demise" of the corporation. By-
laws may be necessary for the "government" of the corporation but
181
these are subordinate to the articles of incorporation as well as to the
Corporation Code and related statutes.15 There are in fact cases
where by-laws are unnecessary to corporate existence or to the valid
exercise of corporate powers, thus:
In the absence of charter or statutory provisions to the contrary, by-
laws are not necessary either to the existence of a corporation or to
the valid exercise of the powers conferred upon it, certainly in all
cases where the charter sufficiently provides for the government of the
body; and even where the governing statute in express terms confers
upon the corporation the power to adopt by-laws, the failure to
exercise the power will be ascribed to mere nonaction which will not
render void any acts of the corporation which would otherwise be
valid. 16 (Emphasis supplied.)
As Fletcher aptly puts it:
It has been said that the by-laws of a corporation are the rule of its
life, and that until by-laws have been adopted the corporation may not
be able to act for the purposes of its creation, and that the first and
most important duty of the members is to adopt them. This would
seem to follow as a matter of principle from the office and functions of
by-laws. Viewed in this light, the adoption of by-laws is a matter of
practical, if not one of legal, necessity. Moreover, the peculiar
circumstances attending the formation of a corporation may impose
the obligation to adopt certain by-laws, as in the case of a close
corporation organized for specific purposes. And the statute or general
laws from which the corporation derives its corporate existence may
expressly require it to make and adopt by-laws and specify to some
extent what they shall contain and the manner of their adoption. The
mere fact, however, of the existence of power in the corporation to
adopt by-laws does not ordinarily and of necessity make the exercise
of such power essential to its corporate life, or to the validity of any of
its acts. 17
Although the Corporation Code requires the filing of by-laws, it does
not expressly provide for the consequences of the non-filing of the
same within the period provided for in Section 46. However, such
omission has been rectified by Presidential Decree No. 902-A, the
pertinent provisions on the jurisdiction of the SEC of which state:

Sec. 6. In order to effectively exercise such jurisdiction, the
Commission shall possess the following powers:
xxx xxx xxx
(1) To suspend, or revoke, after proper notice and hearing,
the franchise or certificate of registration of corporations,
partnerships or associations, upon any of the grounds provided
by law, including the following:
xxx xxx xxx
5. Failure to file by-laws within the required period;
xxx xxx xxx
In the exercise of the foregoing authority and jurisdiction of the
Commission or by a Commissioner or by such other bodies, boards,
committees and/or any officer as may be created or designated by the
Commission for the purpose. The decision, ruling or order of any such
Commissioner, bodies, boards, committees and/or officer may be
appealed to the Commission sitting en banc within thirty (30) days
after receipt by the appellant of notice of such decision, ruling or
order. The Commission shall promulgate rules of procedures to govern
the proceedings, hearings and appeals of cases falling with its
jurisdiction.
The aggrieved party may appeal the order, decision or ruling of the
Commission sitting en banc to the Supreme Court by petition for
review in accordance with the pertinent provisions of the Rules of
Court.
Even under the foregoing express grant of power and authority, there
can be no automatic corporate dissolution simply because the
incorporators failed to abide by the required filing of by-laws
embodied in Section 46 of the Corporation Code. There is no outright
"demise" of corporate existence. Proper notice and hearing are
cardinal components of due process in any democratic institution,
182
agency or society. In other words, the incorporators must be given the
chance to explain their neglect or omission and remedy the same.
That the failure to file by-laws is not provided for by the Corporation
Code but in another law is of no moment. P.D. No. 902-A, which took
effect immediately after its promulgation on March 11, 1976, is very
much apposite to the Code. Accordingly, the provisions abovequoted
supply the law governing the situation in the case at bar, inasmuch as
the Corporation Code and P.D. No. 902-A are statutes in pari materia.
Interpretare et concordare legibus est optimus interpretandi. Every
statute must be so construed and harmonized with other statutes as to
form a uniform system of jurisprudence. 18
As the "rules and regulations or private laws enacted by the
corporation to regulate, govern and control its own actions, affairs and
concerns and its stockholders or members and directors and officers
with relation thereto and among themselves in their relation to it," 19
by-laws are indispensable to corporations in this jurisdiction. These
may not be essential to corporate birth but certainly, these are
required by law for an orderly governance and management of
corporations. Nonetheless, failure to file them within the period
required by law by no means tolls the automatic dissolution of a
corporation.
In this regard, private respondents are correct in relying on the
pronouncements of this Court in Chung Ka Bio v. Intermediate
Appellate Court, 20 as follows:
. . . . Moreover, failure to file the by-laws does not automatically
operate to dissolve a corporation but is now considered only a ground
for such dissolution.
Section 19 of the Corporation Law, part of which is now Section 22 of
the Corporation Code, provided that the powers of the corporation
would cease if it did not formally organize and commence the
transaction of its business or the continuation of its works within two
years from date of its incorporation. Section 20, which has been
reproduced with some modifications in Section 46 of the Corporation
Code, expressly declared that "every corporation formed under this
Act, must within one month after the filing of the articles of
incorporation with the Securities and Exchange Commission, adopt a the powers, authorities and responsibilities that are vested on the
code of by-laws." Whether this provision should be given mandatory or Securities and Exchange Commission . . . , the provision of Act 1459, as
only directory effect remained a controversial question until it became amended by P.D. 902-A, to the contrary notwithstanding." 23
academic with the adoption of PD 902-A. Under this decree, it is now
clear that the failure to file by-laws within the required period is only WHEREFORE, the instant petition for review on certiorari is hereby
DENIED and the questioned Decision of the Court of Appeals AFFIRMED.
a ground for suspension or revocation of the certificate of registration
This Decision is immediately executory. Costs against petitioner.
of corporations.
SO ORDERED.
Non-filing of the by-laws will not result in automatic dissolution of the
corporation. Under Section 6(I) of PD 902-A, the SEC is empowered to
"suspend or revoke, after proper notice and hearing, the franchise or
certificate of registration of a corporation" on the ground inter alia of
"failure to file by-laws within the required period." It is clear from this
provision that there must first of all be a hearing to determine the
existence of the ground, and secondly, assuming such finding, the
penalty is not necessarily revocation but may be only suspension of the
charter. In fact, under the rules and regulations of the SEC, failure to
file the by-laws on time may be penalized merely with the imposition
of an administrative fine without affecting the corporate existence of
the erring firm.

It should be stressed in this connection that substantial compliance

with conditions subsequent will suffice to perfect corporate
personality. Organization and commencement of transaction of
corporate business are but conditions subsequent and not prerequisites
for acquisition of corporate personality. The adoption and filing of by-
laws is also a condition subsequent. Under Section 19 of the
Corporation Code, a Corporation commences its corporate existence
and juridical personality and is deemed incorporated from the date the
Securities and Exchange Commission issues certificate of incorporation
under its official seal. This may be done even before the filing of the
by-laws, which under Section 46 of the Corporation Code, must be
adopted "within one month after receipt of official notice of the
issuance of its certificate of incorporation." 21

That the corporation involved herein is under the supervision of the

HIGC does not alter the result of this case. The HIGC has taken over
the specialized functions of the former Home Financing Corporation
by virtue of Executive Order No. 90 dated December 17, 1989. 22
With respect to homeowners associations, the HIGC shall "exercise all
183
 G.R. No. 172409 February 4, 2008
ROOS INDUSTRIAL CONSTRUCTION, INC. and OSCAR TOCMO,
petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION and JOSE MARTILLOS,
respondents.
TINGA, J.:
In this Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules
of Civil Procedure, petitioners Roos Industrial Construction, Inc. and
Oscar Tocmo assail the Court of Appeals’2 Decision dated 12 January
2006 in C.A. G.R. SP No. 87572 and its Resolution3 dated 10 April 2006
denying their Motion for Reconsideration.4
The following are the antecedents.
On 9 April 2002, private respondent Jose Martillos (respondent) filed a
complaint against petitioners for illegal dismissal and money claims such
as the payment of separation pay in lieu of reinstatement plus full
backwages, service incentive leave, 13th month pay, litigation expenses,
underpayment of holiday pay and other equitable reliefs before the
National Capital Arbitration Branch of the National Labor Relations
Commission (NLRC), docketed as NLRC NCR South Sector Case No.
30-04-01856-02.
Respondent alleged that he had been hired as a driver-mechanic
sometime in 1988 but was not made to sign any employment contract by
petitioners. As driver mechanic, respondent was assigned to work at
Carmona, Cavite and he worked daily from 7:00 a.m. to 10:00 p.m. at the
rate of P200.00 a day. He was also required to work during legal holidays
but was only paid an additional 30% holiday pay. He likewise claimed
that he had not been paid service incentive leave and 13th month pay
during the entire course of his employment. On 16 March 2002, his
employment was allegedly terminated without due process.5
Petitioners denied respondent’s allegations. They contended that
respondent had been hired on several occasions as a project employee and
that his employment was coterminous with the duration of the projects.
They also maintained that respondent was fully aware of this
arrangement. Considering that respondent’s employment had been validly
184
terminated after the completion of the projects, petitioners concluded that
he is not entitled to separation pay and other monetary claims, even
attorney’s fees.6
The Labor Arbiter ruled that respondent had been illegally dismissed after
finding that he had acquired the status of a regular employee as he was
hired as a driver with little interruption from one project to another, a
task which is necessary to the usual trade of his employer.7 The Labor
Arbiter pertinently stated as follows:
x x x If it were true that complainant was hired as project
employee, then there should have been project employment
contracts specifying the project for which complainant’s services
were hired, as well as the duration of the project as required in
Art. 280 of the Labor Code. As there were four (4) projects where
complainant was allegedly assigned, there should have been the
equal number of project employment contracts executed by the
complainant. Further, for every project termination, there should
have been the equal number of termination report submitted to
the Department of Labor and Employment. However, the record
shows that there is only one termination [report] submitted to
DOLE pertaining to the last project assignment of complainant in
Carmona, Cavite.
In the absence of said project employment contracts and the
corresponding Termination Report to DOLE at every project termination,
the inevitable conclusion is that the complainant was a regular employee
of the respondents.
In the case of Maraguinot, Jr. v. NLRC, 284 SCRA 539, 556 [1998], citing
capital Industrial Construction Group v. NLRC, 221 SCRA 469, 473-474
[1993], it was ruled therein that a project employee may acquire the
status of a regular employee when the following concurs: (1) there is a
continuous rehiring of project employees even after the cessation of a
project; and (2) the tasks performed by the alleged "project employee" are
vital, necessary and indispensable to the usual business or trade of the
employer. Both factors are present in the instant case. Thus, even granting
that complainant was hired as a project employee, he eventually became a
regular employee as there was a continuous rehiring of this services.
xxx
In the instant case, apart from the fact that complainant was not made to
sign any project employment contract x x x he was successively
transferred from one project after another, and he was made to perform
the same kind of work as driver.8
The Labor Arbiter ordered petitioners to pay respondent the aggregate
sum of P224,647.17 representing backwages, separation pay, salary
differential, holiday pay, service incentive leave pay and 13th month pay.9
Petitioners received a copy of the Labor Arbiter’s decision on 17 December
2003. On 29 December 2003, the last day of the reglementary period for
perfecting an appeal, petitioners filed a Memorandum of Appeal10 before
the NLRC and paid the appeal fee. However, instead of posting the
required cash or surety bond within the reglementary period, petitioners
filed a Motion for Extension of Time to Submit/Post Surety Bond.11
Petitioners stated that they could not post and submit the required surety
bond as the signatories to the bond were on leave during the holiday
season, and made a commitment to post and submit the surety bond on or
before 6 January 2004. The NLRC did not act on the motion. Thereafter,
on 6 January 2004, petitioners filed a surety bond equivalent to the award
of the Labor Arbiter.12
In a Resolution13 dated July 29, 2004, the Second Division of the NLRC
dismissed petitioners’ appeal for lack of jurisdiction. The NLRC stressed
that the bond is an indispensable requisite for the perfection of an appeal
by the employer and that the perfection of an appeal within the
reglementary period and in the manner prescribed by law is mandatory
and jurisdictional. In addition, the NLRC restated that its Rules of
Procedure proscribes the filing of any motion for extension of the period
within which to perfect an appeal. The NLRC summed up that considering
that petitioners’ appeal had not been perfected, it had no jurisdiction to
act on said appeal and the assailed decision, as a consequence, has
become final and executory.14 The NLRC likewise denied petitioners’
Motion for Reconsideration15 for lack of merit in another Resolution.16
On 11 November 2004, the NLRC issued an entry of judgment declaring
its resolution final and executory as of 9 October 2004. On respondent’s
motion, the Labor Arbiter ordered that the writ of execution be issued to
enforce the award. On 26 January 2005, a writ of execution was issued.17
Petitioners elevated the dismissal of their appeal to the Court of Appeals
by way of a special civil action of certiorari. They argued that the filing of
the appeal bond evinced their willingness to comply and was in fact
substantial compliance with the Rules. They likewise maintained that the
185
NLRC gravely abused its discretion in failing to consider the meritorious
grounds for their motion for extension of time to file the appeal bond.
Lastly, petitioners contended that the NLRC gravely erred in issuing an
entry of judgment as the assailed resolution is still open for review.18 On
12 January 2006, the Court of Appeals affirmed the challenged resolution
of the NLRC. Hence, the instant petition.
Before this Court, petitioners reiterate their previous assertions. They
insist on the application of Star Angel Handicraft v. National Labor
Relations Commission, et al.19where it was held that a motion for
reduction of bond may be filed in lieu of the bond during the period for
appeal. They aver that Borja Estate v. Ballad,20which underscored the
importance of the filing of a cash or surety bond in the perfection of
appeals in labor cases, had not been promulgated yet in 2003 when they
filed their appeal. As such, the doctrine in Borja could not be given
retroactive effect for to do so would prejudice and impair petitioners’ right
to appeal. Moreover, they point out that judicial decisions have no
retroactive effect.21
The Court denies the petition.
The Court reiterates the settled rule that an appeal from the decision of
the Labor Arbiter involving a monetary award is only deemed perfected
upon the posting of a cash or surety bond within ten (10) days from such
decision.22 Article 223 of the Labor Code states:
ART. 223. Appeal.—Decisions, awards or orders of the Labor Arbiter
are final and executory unless appealed to the Commission by any or
both parties within ten (10) calendar days from receipt of such
decisions, awards, or orders. …
In case of a judgment involving a monetary award, an appeal by the
employer may be perfected only upon the posting of a cash or surety
bond issued by a reputable bonding company duly accredited by the
Commission in the amount equivalent to the monetary award in the
judgment appealed from.
xxx
Contrary to petitioners’ assertion, the appeal bond is not merely
procedural but jurisdictional. Without said bond, the NLRC does not
acquire jurisdiction over the appeal.23 Indeed, non-compliance with such
legal requirements is fatal and has the effect of rendering the judgment
final and executory.24 It must be stressed that there is no inherent right to
an appeal in a labor case, as it arises solely from the grant of statute.25
Evidently, the NLRC did not acquire jurisdiction over petitioners’ appeal
within the ten (10)-day reglementary period to perfect the appeal as the
appeal bond was filed eight (8) days after the last day thereof. Thus, the
Court cannot ascribe grave abuse of discretion to the NLRC or error to the
Court of Appeals in refusing to take cognizance of petitioners’ belated
appeal.
While indeed the Court has relaxed the application of this requirement in
cases where the failure to comply with the requirement was justified or
where there was substantial compliance with the rules,26 the
overpowering legislative intent of Article 223 remains to be for a strict
application of the appeal bond requirement as a requisite for the
perfection of an appeal and as a burden imposed on the employer.27 As
the Court held in the case of Borja Estate v. Ballad:28
The intention of the lawmakers to make the bond an indispensable
requisite for the perfection of an appeal by the employer is underscored
by the provision that an appeal may be perfected "only upon the posting
of a cash or surety bond." The word "only" makes it perfectly clear that the
LAWMAKERS intended the posting of a cash or surety bond by the
employer to be
the exclusive means by which an employer’s appeal may be considered
completed. The law however does not require its outright payment, but
only the posting of a bond to ensure that the award will be eventually
paid should the appeal fail. What petitioners have to pay is a moderate
and reasonable sum for the premium of such bond.29
Moreover, no exceptional circumstances obtain in the case at bar which
would warrant a relaxation of the bond requirement as a condition for
perfecting the appeal. It is only in highly meritorious cases that this Court
opts not to strictly apply the rules and thus prevent a grave injustice from
being done30 and this is not one of those cases.
In addition, petitioners cannot take refuge behind the Court’s ruling in
Star Angel. Pertinently, the Court stated in Computer Innovations Center
v. National Labor Relations Commission:31
Moreover, the reference in Star Angel to the distinction between the
period to file the appeal and to perfect the appeal has been pointedly
186
made only once by this Court in Gensoli v. NLRC thus, it has not acquired
the sheen of venerability reserved for repeatedly-cited cases. The
distinction, if any, is not particularly evident or material in the Labor
Code; hence, the reluctance of the Court to adopt such doctrine.
Moreover, the present provision in the NLRC Rules of Procedure, that "the
filing of a motion to reduce bond shall not stop the running of the period
to perfect appeal" flatly contradicts the notion expressed in Star Angel
that there is a distinction between filing an appeal and perfecting an
appeal.
Ultimately, the disposition of Star Angel was premised on the ruling that a
motion for reduction of the appeal bond necessarily stays the period for
perfecting the appeal, and that the employer cannot be expected to
perfect the appeal by posting the proper bond until such time the said
motion for reduction is resolved. The unduly stretched-out distinction
between the period to file an appeal and to perfect an appeal was not
material to the resolution of Star Angel, and thus could properly be
considered as obiter dictum.32
Lastly, the Court does not agree that the Borja doctrine should only be
applied prospectively. In the first place, Borja is not a ground-breaking
precedent as it is a reiteration, emphatic though, of long standing
jurisprudence.33 It is well to recall too our pronouncement in Senarillos v.
Hermosisima, et al.34 that the judicial interpretation of a statute
constitutes part of the law as of the date it was originally passed, since the
Court’s construction merely establishes the contemporaneous legislative
intent that the interpreted law carried into effect. Such judicial doctrine
does not amount to the passage of a new law but consists merely of a
construction or interpretation of a pre-existing one, as is the situation in
this case.35
At all events, the decision of the Labor Arbiter appears to be well-founded
and petitioners’ ill-starred appeal untenable.
WHEREFORE, the Petition is DENIED. Costs against petitioners.
SO ORDERED.
 G.R. No. 98382 May 17, 1993
PHILIPPINE NATIONAL BANK, petitioner,
vs.
THE COURT OF APPEALS and EPIFANIO DE LA CRUZ,
respondents
MELO, J.:
The notices of sale under Section 3 of Act No. 3135, as amended by
Act No. 4118, on extra-judicial foreclosure of real estate mortgage
are required to be posted for not less than twenty days in at least
three public places of the municipality or city where the property is
situated, and if such property is worth more than four hundred
pesos, such notices shall also be published once a week for at least
three consecutive weeks in a newspaper of general circulation in
the municipality or city.
Respondent court, through Justice Filemon Mendoza with whom
Justices Campos, Jr. and Aldecoa, Jr. concurred, construed the
publication of the notices on March 28, April 11 and l2, 1969 as a
fatal announcement and reversed the judgment appealed from by
declaring void, inter alia, the auction sale of the foreclosed pieces
of realty, the final deed of sale, and the consolidation of ownership
(p. 27, Rollo).
Hence, the petition at bar, premised on the following backdrop
lifted from the text of the challenged decision:
The facts of the case as related by the trial court are, as follows:
This is a verified complaint brought by the plaintiff for the
reconveyance to him (and resultant damages) of two (2) parcels of
land mortgaged by him to the defendant Philippine National Bank
(Manila), which the defendant allegedly unlawfully foreclosed. The
defendant then consolidated ownership unto itself, and
subsequently sold the parcels to third parties. The amended
187
Answer of the defendant states on the other hand that the
extrajudicial foreclosure, consolidation of ownership, and
subsequent sale to the third parties were all valid, the bank
therefore counterclaims for damages and other equitable remedies.
xxx xxx xxx
From the evidence and exhibits presented by both parties, the
Court is of the opinion that the following facts have been proved:
Two lots, located at Bunlo, Bocaue, Bulacan (the first covered by
Torrens Certificate No. 16743 and possessed of an area of
approximately 3,109 square meters: the second covered by Torrens
Certificate No. 5787, possessed of an area of around 610 square
meters, and upon which stood a residential-commercial building
were mortgaged to the defendant Philippine National Bank. The
lots were under the common names of the plaintiff (Epifanio dela
Cruz), his brother (Delfin) and his sister (Maria). The mortgage
was made possible because of the grant by the latter two to the
former of a special power of attorney to mortgage the lots to the
defendant. The lots were mortgaged to guarantee the following
promissory notes:
(1) a promissory note for Pl2,000.00, dated September
2, 1958, and payable within 69 days (date of maturity —
Nov. l0, 1958);
(2) a promissory note for P4,000.00, dated September 22,
1958, and payable within 49 days (date of maturity — Nov.
10, 1958);
(3) a promissory note for P4,000.00, dated June 30,
1.9581 and payable within 120 days (date of maturity —
Nov. 10, 1958) See also Annex C of the complaint itself).
[1 This date of June 30, 1958 is disputed by the plaintiff who
claims that the correct date is June 30, 1961, which is the date
actually mentioned in the promissory note. It is however difficult to
believe the plaintiff's contention since if it were true and correct,
this would mean that nearly three (3) years elapsed between the
second and the third promissory note; that at the time the third
note was executed, the first two had not yet been paid by the
plaintiff despite the fact that the first two were supposed to be
payable within 69 and 49 days respectively. This state of affairs
would have necessitated the renewal of said two promissory notes.
No such renewal was proved, nor was the renewal ever alleged.
Finally, and this is very significant: the third mentioned promissory
note states that the maturity date is Nov. 10, 1958. Now then, how
could the loan have been contracted on June 30, 1961? It will be
observed that in the bank records, the third mentioned promissory
note was really executed on June 30, 1958 (See Exhs. 9 and 9-A).
The Court is therefore inclined to believe that the date "June 30,
1961" was a mere clerical error and hat the true and correct date is
June 1958. However, even assuming that the true and correct date
is June 30, 1961, the fact still remains that the first two promissory
notes had been guaranteed by the mortgage of the two lots, and
therefore, it was legal and proper to foreclose on the lots for failure
to pay said two promissory notes.
On September 6, 1961, Atty. Ramon de los Reyes of the bank (PNB)
presented under Act No. 3135 a foreclosure petition of the two
mortgaged lots before the Sheriff's Office at Malolos, Bulacan;
accordingly, the two lots were sold or auctioned off on October 20,
1961 with the defendant PNB as the highest bidder for P28,908.46.
On March 7, 1963, Sheriff Leopoldo Palad executed a Final Deed of
Sale, in response to a letter-request by the Manager of the PNB
(Malolos Branch). On January 15, 1963 a Certificate of Sale in
favor of the defendant was executed by Sheriff Palad. The final
Deed of Sale was registered in the Bulacan Registry of Property on
March 19, 1963. Inasmuch as the plaintiff did not volunteer to buy
back from the PNB the two lots, the PNB sold on June 4, 1970 the
same to spouses Conrado de Vera and Marina de Vera in a "Deed of
Conditional Sale". (Decision, pp.3-5; Amended Record on Appeal,
pp. 96-98).
188
After due consideration of the evidence, the CFI on January 22,
1978 rendered its Decision, the dispositive portion of which reads:
WHEREFORE, PREMISES CONSIDERED, the instant
complaint against the defendant Philippine National Bank is
hereby ordered DISMISSED, with costs against the plaintiff.
The Counterclaim against the plaintiff is likewise
DISMISSED, for the Court does not believe that the
complaint had been made in bad faith.
SO ORDERED. (Decision, p. B.; Amended Record on Appeal,
p. 100)
Not satisfied with the judgment, plaintiff interposed the present
appeal assigning as errors the following:
I.
THE LOWER COURT ERRED IN HOLDING IN FOOTNOTE I OF ITS
DECISION THAT IT IS THEREFORE INCLINED TO BELIEVE THAT
THE DATE "JUNE 30, 1962" WAS A MERE CLERICAL ERROR AND
THAT THE TRUE AND CORRECT DATE IS JUNE 30, 1958. IT ALSO
ERRED IN HOLDING IN THE SAME FOOTNOTE I THAT
"HOWEVER, EVEN ASSUMING THAT THE TRUE AND CORRECT
DATE IS JUNE 30, 1961, THE FACT STILL REMAINS THAT THE
FIRST TWO PROMISSORY NOTES HAD BEEN GUARANTEED BY
THE MORTGAGE OF THE TWO LOTS, AND THEREFORE, IT WAS
LEGAL AND PROPER TO FORECLOSE ON THE LOTS FOR
FAILURE TO PAY SAID TWO PROMISSORY NOTES". (page 115,
Amended Record on Appeal)
II.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE
P E T I T I O N F O R E X T R A J U D I C I A L F O R E C L O S U R E WA S
PREMATURELY FILED AND IS A MERE SCRAP OF PAPER BECAUSE
IT MERELY FORECLOSED THE ORIGINAL AND NOT THE
AMENDED MORTGAGE.
III.
THE LOWER COURT ERRED IN HOLDING THAT "IT IS CLEAR
THAT THE AUCTION SALE WAS NOT PREMATURE". (page 117,
Amended Record on Appeal)
IV.
THE LOWER COURT ERRED IN HOLDING THAT "SUFFICE IT TO
STATE THAT ACTUALLY THE POWER OF ATTORNEY GIVEN TO
THE PNB WAS EMBODIED IN THE REAL ESTATE MORTGAGE
(EXB. 10) WHICH WAS REGISTERED IN THE REGISTRY OF
PROPERTY OF BULACAN AND WAS ANNOTATED ON THE TWO
TORRENS CERTIFICATES INVOLVED" (page 118, Amended Record
on Appeal).
V.
THE LOWER COURT ERRED IN HOLDING THAT "THE NOTICES
REQUIRED UNDER SEC. 3 OF ACT NO. 3135 WERE ALL
COMPLIED WITH" AND "THAT THE DAILY RECORD . . . IS A
NEWSPAPER OF GENERAL CIRCULATION (pages 117-118,
Amended Record on Appeal).
VI.
THE LOWER COURT ERRED IN NOT DECLARING THE
CERTIFICATE OF SALE, FINAL DEED OF SALE AND AFFIDAVIT OF
CONSOLIDATION, NULL AND VOID.
VII.
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO
RECONVEY TO PLAINTIFF THE PARCELS OF LAND COVERED BY
189
T.C.T. NOS. 40712 AND 40713 OF BULACAN (page 8, Amended
Record on Appeal)
VIII.
THE LOWER COURT ERRED IN NOT ORDERING DEFENDANT TO
PAY TO PLAINTIFF REASONABLE AMOUNTS OF MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES (page 8.
Amended Record on Appeal).
IX.
THE LOWER COURT ERRED IN DISMISSING THE INSTANT
COMPLAINT AGAINST THE PHILIPPINE NATIONAL BANK WITH
COSTS AGAINST THE PLAINTIFF. (page 118, Amended Record on
Appeal)." (Brief for Plaintiff-Appellant, pp. 1-4) (pp. 17-21, Rollo)
With reference to the pertinent issue at hand, respondent court
opined:
The Notices of Sale of appellant's foreclosed properties were
published on March 228, April 11 and April 12, 1969 issues of the
newspaper "Daily Record" (Amended Record on Appeal, p. 108).
The date March 28, 1969 falls on a Friday while the dates April 11
and 12, 1969 are on a Friday and Saturday, respectively. Section 3
of Act No. 3135 requires that the notice of auction sale shall be
"published once a week for at least three consecutive weeks".
Evidently, defendant-appellee bank failed to comly with this legal
requirement. The Supreme Court has held that:
The rule is that statutory provisions governing publication of notice
of mortgage foreclosure sales must be strictly complied with, and
that even slight deviations therefrom will invalidate the notice and
render the sale at least voidable (Jalandoni vs. Ledesma, 64 Phil.
l058. G.R. No. 42589, August 1937 and October 29, 1937).
Interpreting Sec. 457 of the Code of Civil Procedure (reproduced in
Sec. 18(c) of Rule 39, Rules of Court and in Sec. 3 of Act No. 3135)
in Campomanes vs. Bartolome and German & Co. (38 Phil. 808,
G.R. No. 1309, October 18, 1918), this Court held that if a sheriff
sells without notice prescribed by the Code of Civil Procedure
induced thereto by the judgment creditor, and the purchaser at the
sale is the judgment creditor, the sale is absolutely void and no title
passes. This is regarded as the settled doctrine in this jurisdiction
whatever the rule may be elsewhere (Boria vs. Addison, 14 Phil.
895, G.R. No. 18010, June 21, 1922).
. . . It has been held that failure to advertise a mortgage foreclosure
sale in compliance with statutory requirements constitutes a
jurisdictional defect invalidating the sale and that a substantial
error or omission in a notice of sale will render the notice
insufticient and vitiate the sale (59 C.J.S. 1314). (Tambunting vs.
Court of Appeals, L-48278, November 8, 1988; 167 SCRA 16,
23-24).
In view of the admission of defendant-appellee in its pleading
showing that there was no compliance of the notice prescribed in
Section 3 of Act No. 3135, as amended by Act 4118, with respect to
the notice of sale of the foreclosed real properties in this case, we
have no choice but to declare the auction sale as absolutely void in
view of the fact that the highest bidder and purchaser in said
auction sale was defendant-appellee bank. Consequently, the
Certificate of Sale, the Final Deed of Sale and Affidavit of
Consolidation are likewise of no legal efffect. (pp. 24-25, Rollo)
Before we focus our attention on the subject of whether or not
there was valid compliance in regard to the required publication,
we shall briefly discuss the other observations of respondent court
vis-a-vis herein private respondent's ascriptions raised with the
appellate court when his suit for reconveyance was dismissed by
the court of origin even as private respondent does not impugn the
remarks of respondent court along this line.
Although respondent court acknowledged that there was an
ambiguity on the date of execution of the third promissory note
190
(June 30, 1961) and the date of maturity thereof (October 28,
1958), it was nonetheless established that the bank introduced
sufficient proof to show that the discrepancy was a mere clerical
error pursuant to Section 7, Rule l30 of the Rules of Court. Anent
the second disputation aired by private respondent, the appellate
court observed that inasmuch as the original as well as the
subsequent mortgage were foreclosed only after private
respondent's default, the procedure pursued by herein petitioner in
foreclosing the collaterals was thus appropriate albeit the petition
therefor contained only a copy of the original mortgage.
It was only on the aspect of publication of the notices of sale under
Act No. 3135, as amended, and attorney's fees where herein private
respondent scored points which eliminated in the reversal of the
trial court's decision. Respondent court was of the impression that
herein petitioner failed to comply with the legal requirement and
the sale effected thereafter must be adjudged invalid following the
ruling of this Court in Tambunting vs. Court of Appeals (167 SCRA
16 [1988]); p. 8, Decision, p. 24, Rollo). In view of petitioner's so-
called indifference to the rules set forth under Act No. 3135, as
amended, respondent court expressly authorized private
respondent to recover attorney's fees because he was compelled to
incur expenses to protect his interest.
Immediately upon the submission of a supplemental petition, the
spouses Conrado and Marina De Vera filed a petition in
intervention claiming that the two parcels of land involved herein
were sold to them on June 4, 1970 by petitioner for which transfer
certificates of title were issued in their favor (p. 40, Rollo). On the
other hand, private respondent pressed the idea that the alleged
intervenors have no more interest in the disputed lots in view of
the sale effected by them to Teresa Castillo, Aquilino and Antonio
dela Cruz in 1990 (pp. 105-106, Rollo).
On March 9, 1992, the Court resolved to give due course to the
petition and required the parties to submit their respective
memoranda (p. 110, Rollo).

Now, in support of the theory on adherence to the conditions spelled
in the preliminary portion of this discourse, the pronouncement of this
Court in Bonnevie vs. Court of Appeals (125 SCRA [1983]; p. 135,
Rollo) is sought to be utilized to press the point that the notice need
not be published for three full weeks. According to petitioner, there is
no breach of the proviso since after the first publication on March 28,
1969, the second notice was published on April 11, 1969 (the last day
of the second week), while the third publication on April 12, 1969 was
announced on the first day of the third week. Petitioner thus
concludes that there was no violation from the mere happenstance
that the third publication was made only a day after the second
publication since it is enough that the second publication be made on
any day within the second week and the third publication, on any day
within the third week. Moreover, in its bid to rectify its admission in
judicio, petitioner asseverates that said admission alluded to refers
only to the dates of publications, not that there was non-compliance
with the publication requirement.
Private respondent, on the other hand, views the legal question from a
different perspective. He believes that the period between each
publication must never be less than seven consecutive days (p. 4,
Memorandum; p. 124, Rollo).
We are not convinced by petitioner's submissions because the
disquisition in support thereof rests on the erroneous impression that
the day on which the first publication was made, or on March 28,
1969, should be excluded pursuant to the third paragraph of Article
17 of the New Civil Code.
It must be conceded that Article 17 is completely silent as to the
definition of what is a "week". In Concepcion vs. Zandueta (36 O.G.
3139 [1938]; Moreno, Philippine Law Dictionary, Second Ed., 1972, p.
660), this term was interpreted to mean as a period of time consisting
of seven consecutive days — a definition which dovetails with the
ruling in E.M. Derby and Co. vs. City of Modesto, et al. (38 Pac. Rep.
900 [1984]; 1 Paras, Civil Code of the Philippines Annotated, Twelfth
Ed., 1989, p. 88; 1 Tolentino, Commentaries and Jurisprudence on th
Civil Code, 1990, p. 46). Following the interpretation in Derby as to
191
the publication of an ordinance for "at least two weeks" in some
newspaper that:
. . . here there is no date or event suggesting the exclusion of the first
day's publication from the computation, and the cases above cited take
this case out of the rule stated in Section 12, Code Civ. Proc. which
excludes the first day and includes the last;
the publication effected on April 11, 1969 cannot be construed as
sufficient advertisement for the second week because the period for
the first week should be reckoned from March 28, 1969 until April 3,
1969 while the second week should be counted from April 4, 1969
until April 10, 1969. It is clear that the announcement on April 11,
1969 was both theoretically and physically accomplished during the
first day of the third week and cannot thus be equated with
compliance in law. Indeed, where the word is used simply as a
measure of duration of time and without reference to the calendar, it
means a period of seven consecutive days without regard to the day of
the week on which it begins (1 Tolentino, supra at p. 467 citing
Derby).
Certainly, it would have been absurd to exclude March 28, 1969 as
reckoning point in line with the third paragraph of Article 13 of the
New Civil Code, for the purpose of counting the first week of
publication as to the last day thereof fall on April 4, 1969 because this
will have the effect of extending the first week by another day. This
incongruous repercussion could not have been the unwritten intention
of the lawmakers when Act No. 3135 was enacted. Verily, inclusion of
the first day of publication is in keeping with the computation in
Bonnevie vs. Court of Appeals (125 SCRA 122 [1983]) where this
Court had occasion to pronounce, through Justice Guerrero, that the
publication of notice on June 30, July 7 and July 14, 1968 satisfied
the publication requirement under Act No. 3135. Respondent court
cannot, therefore, be faulted for holding that there was no compliance
with the strict requirements of publication independently of the so-
called admission in judicio.
WHEREFORE, the petitions for certiorari and intervention are hereby
dismissed and the decision of the Court of Appeals dated April 17,
1991 is hereby affirmed in toto. SO ORDERED.
 G.R. No. 109902 August 2, 1994 5. Leonido Echavez 6-16-82 Eng. Assistant
6-30-92
ALU-TUCP, Representing Members: ALAN BARINQUE, with 13 6. Darrell Eltagonde 5-20-85 Engineer 1
others, namely: ENGR. ALAN G. BARINQUE, ENGR. DARRELL 8-31-91
LEE ELTAGONDE, EDUARD H. FOOKSON, JR., ROMEO R. 7. Gerry Fetalvero 4-08-85 Mat. Expediter
SARONA, RUSSELL GACUS, JERRY BONTILAO, EUSEBIO regularized
MARIN, JR., LEONIDO ECHAVEZ, BONIFACIO MEJOS, EDGAR 8. Eduard Fookson 9-20-84 Eng. Assistant
S. BONTUYAN, JOSE G. GARGUENA, JR., OSIAS B. DANDASAN, 8-31-91
and GERRY I. FETALVERO, petitioners, 9. Russell Gacus 1-30-85 Engineer 1 6-30-92
vs. 10. Jose Garguena 3-02-81 Warehouseman t o
NATIONAL LABOR RELATIONS COMMISSION and NATIONAL present
STEEL CORPORATION (NSC), respondents. 11. Eusebio Mejos 11-17-82 Survey Aide 8-31-91
12. Bonifacio Mejos 11-17-82 Surv. Party Head
1992
FELICIANO, J.: 13. Romeo Sarona 2-26-83 Machine Operator
8-31-912
In this Petition for Certiorari, petitioners assail the Resolution of
the National Labor Relations Commission ("NLRC") dated 8 On 5 July 1990, petitioners filed separate complaints for unfair
January 1993 which declared petitioners to be project employees labor practice, regularization and monetary benefits with the
of private respondent National Steel Corporation ("NSC"), and the NLRC, Sub-Regional Arbitration Branch XII, Iligan City.
NLRC's subsequent Resolution of 15 February 1993, denying
petitioners' motion for reconsideration. The complaints were consolidated and after hearing, the Labor
Arbiter in a Decision dated 7 June 1991, declared petitioners
Petitioners plead that they had been employed by respondent NSC "regular project employees who shall continue their employment as
in connection with its Five Year Expansion Program (FAYEP I & II) such for as long as such [project] activity exists," but entitled to the
1 for varying lengths of time when they were separated from NSC's salary of a regular employee pursuant to the provisions in the
service: collective bargaining agreement. It also ordered payment of salary
differentials. 3
Employee Date Nature of Separated
Both parties appealed to the NLRC from that decision. Petitioners
Employed Employment argued that they were regular, not project, employees. Private
respondent, on the other hand, claimed that petitioners are project
1. Alan Barinque 5-14-82 Engineer 1 8-31-91 employees as they were employed to undertake a specific project
2. Jerry Bontilao 8-05-85 Engineer 2 6-30-92 — NSC's Five Year Expansion Program (FAYEP I & II).
3. Edgar Bontuyan 11-03-82 Chairman t o
present The NLRC in its questioned resolutions modified the Labor Arbiter's
4. Osias Dandasan 9-21-82 Utilityman 1991 decision. It affirmed the Labor Arbiter's holding that petitioners

192
were project employees since they were hired to perform work in a
specific undertaking — the Five Years Expansion Program, the
completion of which had been determined at the time of their
engagement and which operation was not directly related to the
business of steel manufacturing. The NLRC, however, set aside the
award to petitioners of the same benefits enjoyed by regular
employees for lack of legal and factual basis.
Deliberating on the present Petition for Certiorari, the Court
considers that petitioners have failed to show any grave abuse of
discretion or any act without or in excess of jurisdiction on the part
of the NLRC in rendering its questioned resolutions of 8 January
1993 and 15 February 1993.
The law on the matter is Article 280 of the Labor Code which reads
in full:
Art. 280. Regular and Casual Employment — The provisions of
the written agreement to the contrary notwithstanding and regardless
of the oral agreement of the parties, and employment shall be deemed
to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual
business or trade of the employer, except where the employment has
been fixed for a specific project or undertaking the completion or
termination of which has been determined at the time of the
engagement of the employee or where the work or services to be
performed is seasonal in nature and the employment is for the
duration of the season.
An employment shall be deemed to be casual if it is not covered by the
preceding paragraph: Provided, That, any employee who has rendered
at least one year service, whether such service is continuous or broken,
shall be considered a regular employee with respect to the activity in
which he is employed and his employment shall continue while such
actually exists. (Emphasis supplied)
193
Petitioners argue that they are "regular" employees of NSC because:
(i) their jobs are "necessary, desirable and work-related to private
respondent's main business, steel-making"; and (ii) they have
rendered service for six (6) or more years to private respondent
NSC. 4
The basic issue is thus whether or not petitioners are properly
characterized as "project employees" rather than "regular
employees" of NSC. This issue relates, of course, to an important
consequence: the services of project employees are co-terminous
with the project and may be terminated upon the end or
completion of the project for which they were hired. 5 Regular
employees, in contract, are legally entitled to remain in the service
of their employer until that service is terminated by one or another
of the recognized modes of termination of service under the Labor
Code. 6
It is evidently important to become clear about the meaning and
scope of the term "project" in the present context. The "project" for
the carrying out of which "project employees" are hired would
ordinarily have some relationship to the usual business of the
employer. Exceptionally, the "project" undertaking might not have
an ordinary or normal relationship to the usual business of the
employer. In this latter case, the determination of the scope and
parameeters of the "project" becomes fairly easy. It is unusual (but
still conceivable) for a company to undertake a project which has
absolutely no relationship to the usual business of the company;
thus, for instance, it would be an unusual steel-making company
which would undertake the breeding and production of fish or the
cultivation of vegetables. From the viewpoint, however, of the legal
characterization problem here presented to the Court, there should
be no difficulty in designating the employees who are retained or
hired for the purpose of undertaking fish culture or the production
of vegetables as "project employees," as distinguished from
ordinary or "regular employees," so long as the duration and scope
of the project were determined or specified at the time of
engagement of the "project employees." 7 For, as is evident from
the provisions of Article 280 of the Labor Code, quoted earlier, the
principal test for determining whether particular employees are
properly characterized as "project employees" as distinguished from
"regular employees," is whether or not the "project employees"
were assigned to carry out a "specific project or undertaking," the
duration (and scope) of which were specified at the time the
employees were engaged for that project.
In the realm of business and industry, we note that "project" could
refer to one or the other of at least two (2) distinguishable types of
activities. Firstly, a project could refer to a particular job or
undertaking that is within the regular or usual business of the
employer company, but which is distinct and separate, and
identifiable as such, from the other undertakings of the company.
Such job or undertaking begins and ends at determined or
determinable times. The typical example of this first type of project
is a particular construction job or project of a construction
company. A construction company ordinarily carries out two or
more discrete identifiable construction projects: e.g., a twenty-five-
storey hotel in Makati; a residential condominium building in
Baguio City; and a domestic air terminal in Iloilo City. Employees
who are hired for the carrying out of one of these separate projects,
the scope and duration of which has been determined and made
known to the employees at the time of employment, are properly
treated as "project employees," and their services may be lawfully
terminated at completion of the project.
The term "project" could also refer to, secondly, a particular job or
undertaking that is not within the regular business of the
corporation. Such a job or undertaking must also be identifiably
separate and distinct from the ordinary or regular business
operations of the employer. The job or undertaking also begins and
ends at determined or determinable times. The case at bar presents
what appears to our mind as a typical example of this kind of
"project."
194
NSC undertook the ambitious Five Year Expansion Program I and II
with the ultimate end in view of expanding the volume and
increasing the kinds of products that it may offer for sale to the
public. The Five Year Expansion Program had a number of
component projects: e.g., (a) the setting up of a "Cold Rolling Mill
Expansion Project"; (b) the establishment of a "Billet Steel-Making
Plant" (BSP); (c) the acquisition and installation of a "Five Stand
TDM"; and (d) the "Cold Mill Peripherals Project." 8 Instead of
contracting out to an outside or independent contractor the tasks
of constructing the buildings with related civil and electrical works
that would house the new machinery and equipment, the
installation of the newly acquired mill or plant machinery and
equipment and the commissioning of such machinery and
equipment, NSC opted to execute and carry out its Five Yeear
Expansion Projects "in house," as it were, by administration. The
carrying out of the Five Year Expansion Program (or more precisely,
each of its component projects) constitutes a distinct undertaking
identifiable from the ordinary business and activity of NSC. Each
component project, of course, begins and ends at specified times,
which had already been determined by the time petitioners were
engaged. We also note that NSC did the work here involved — the
construction of buildings and civil and electrical works, installation
of machinery and equipment and the commissioning of such
machinery — only for itself. Private respondent NSC was not in the
business of constructing buildings and installing plant machinery
for the general business community, i.e., for unrelated, third party,
corporations. NSC did not hold itself out to the public as a
construction company or as an engineering corporation.
Which ever type of project employment is found in a particular
case, a common basic requisite is that the designation of named
employees as "project employees" and their assignment to a specific
project, are effected and implemented in good faith, and not
merely as a means of evading otherwise applicable requirements of
labor laws.
Thus, the particular component projects embraced in the Five Year
Expansion Program, to which petitioners were assigned, were
distinguishable from the regular or ordinary business of NSC
which, of course, is the production or making and marketing of
steel products. During the time petitioners rendered services to
NSC, their work was limited to one or another of the specific
component projects which made up the FAYEP I and II. There is
nothing in the record to show that petitioners were hired for, or in
fact assigned to, other purposes, e.g., for operating or maintaining
the old, or previously installed and commissioned, steel-making
machinery and equipment, or for selling the finished steel
products.
We, therefore, agree with the basic finding of the NLRC (and the
Labor Arbiter) that the petitioners were indeed "project
employees:"
It is well established by the facts and evidence on record that
herein 13 complainants were hired and engaged for specific
activities or undertaking the period of which has been determined
at time of hiring or engagement. It is of public knowledge and
which this Commission can safely take judicial notice that the
expansion program (FAYEP) of respondent NSC consist of various
phases [of] project components which are being executed or
implemented independently or simultaneously from each other . . .
In other words, the employment of each "project worker" is dependent
and co-terminous with the completion or termination of the specific
activity or undertaking [for which] he was hired which has been pre-
determined at the time of engagement. Since, there is no showing that
they (13 complainants) were engaged to perform work-related
activities to the business of respondent which is steel-making, there is
no logical and legal sense of applying to them the proviso under the
second paragraph of Article 280 of the Labor Code, as amended.
xxx xxx xxx
195
The present case therefore strictly falls under the definition of "project
employees" on paragraph one of Article 280 of the Labor Code, as
amended. Moreover, it has been held that the length of service of a
project employee is not the controlling test of employment tenure but
whether or not "the employment has been fixed for a specific project
or undertaking the completion or termination of which has been
determined at the time of the engagement of the employee". (See
Hilario Rada v. NLRC, G.R. No. 96078, January 9, 1992; and Sandoval
Shipping, Inc. v. NLRC, 136 SCRA 674 (1985). 9
Petitioners next claim that their service to NSC of more than six (6)
years should qualify them as regular employees. We believe this claim
is without legal basis. The simple fact that the employment of
petitioners as project employees had gone beyond one (1) year, does
not detract from, or legally dissolve, their status as project employees.
10 The second paragraph of Article 280 of the Labor Code, quoted
above, providing that an employee who has served for at least one (1)
year, shall be considered a regular employee, relates to casual
employees, not to project employees.
In the case of Mercado, Sr. vs. National Labor Relations Commission,
11 this Court ruled that the proviso in the second paragraph of Article
280 relates only to casual employees and is not applicable to those
who fall within the definition of said Article's first paragraph, i.e.,
project employees. The familiar grammatical rule is that a proviso is to
be construed with reference to the immediately preceding part of the
provision to which it is attached, and not to other sections thereof,
unless the clear legislative intent is to restrict or qualify not only the
phrase immediately preceding the proviso but also earlier provisions
of the statute or even the statute itself as a whole. No such intent is
observable in Article 280 of the Labor Code, which has been quoted
earlier.
ACCORDINGLY, in view of the foregoing, the Petition for Certiorari is
hereby DISMISSED for lack of merit. The Resolutions of the NLRC
dated 8 January 1993 and 15 February 1993 are hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
 G.R. No. 90501 August 5, 1991
ARIS (PHIL.) INC., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER
FELIPE GARDUQUE III, LEODEGARIO DE GUZMAN, LILIA PEREZ,
ROBERTO BESTAMONTE, AIDA OPENA, REYNALDO TORIADO,
APOLINARIO GAGAHINA, RUFINO DE CASTRO, FLORDELIZA
RAYOS DEL SOL, STEVE SANCHO, ESTER CAIRO, MARIETA
MAGALAD, and MARY B. NADALA, respondents.
DAVIDE, JR., J.:
Petitioner assails the constitutionality of the amendment introduced by
Section 12 of Republic Act No. 6715 to Article 223 of the Labor Code
of the Philippines (PD No. 442, as amended) allowing execution
pending appeal of the reinstatement aspect of a decision of a labor
arbiter reinstating a dismissed or separated employee and of Section 2
of the NLRC Interim Rules on Appeals under R.A. No. 6715
implementing the same. It also questions the validity of the Transitory
Provision (Section 17) of the said Interim Rules.
The challenged portion of Section 12 of Republic Act No. 6715, which
took effect on 21 March 1989, reads as follows:
SEC 12. Article 223 of the same code is amended to read as
follows:
ART. 223. Appeal.
xxx xxx xxx
In any event, the decision of the Labor Arbiter reinstating a
dismissed or separated employee, in so far as the reinstatement
aspect is concerned, shall immediately be executory, even pending
appeal. The employee shall either be admitted back to work
under the same terms and conditions prevailing prior to his
dismissal or separation or, at the option of the employer, merely
reinstated in the payroll. The posting of a bond by the employer
shall not stay the execution for reinstatement provided therein.
196
This is a new paragraph ingrafted into the Article.
Sections 2 and 17 of the "NLRC Interim Rules On Appeals Under
R.A. No. 6715, Amending the Labor Code", which the National
Labor Relations Commission (NLRC) promulgated on 8 August
1989, provide as follows:
Section 2. Order of Reinstatement and Effect of Bond. — In
so far as the reinstatement aspect is concerned, the decision of the
Labor Arbiter reinstating a dismissed or separated employee shall
immediately be executory even pending appeal. The employee
shall either be admitted back to work under the same terms and
conditions prevailing prior to his dismissal or separation, or, at
the option of the employer, merely be reinstated in the payroll.
The posting of a bond by the employer shall not stay the
execution for reinstatement.
xxx xxx xxx
Section 17. Transitory provision. — Appeals filed on or after
March 21, 1989, but prior to the effectivity of these Interim Rules
must conform to the requirements as herein set forth or as may
be directed by the Commission.
The antecedent facts and proceedings which gave rise to this petition
are not disputed:
On 11 April 1988, private respondents, who were employees of
petitioner, aggrieved by management's failure to attend to their
complaints concerning their working surroundings which had become
detrimental and hazardous, requested for a grievance conference. As
none was arranged, and believing that their appeal would be fruitless,
they grouped together after the end of their work that day with other
employees and marched directly to the management's office to protest
its long silence and inaction on their complaints.
On 12 April 1988, the management issued a memorandum to each of
the private respondents, who were identified by the petitioner's
supervisors as the most active participants in the rally requiring them
to explain why they should not be terminated from the service for
their conduct. Despite their explanation, private respondents were
dismissed for violation of company rules and regulations, more
specifically of the provisions on security and public order and on
inciting or participating in illegal strikes or concerted actions.
Private respondents lost no time in filing a complaint for illegal
dismissal against petitioner and Mr. Gavino Bayan with the regional
office of the NLRC at the National Capital Region, Manila, which was
docketed therein as NLRC-NCR-00-0401630-88.
After due trial, Labor Arbiter Felipe Garduque III handed down on 22
June 1989 a decision' the dispositive portion of which reads:
ACCORDINGLY, respondent Aris (Phils.), Inc. is hereby ordered
to reinstate within ten (10) days from receipt hereof, herein
complainants Leodegario de Guzman, Rufino de Castro, Lilia
M. Perez, Marieta Magalad, Flordeliza Rayos del Sol, Reynaldo
Toriado, Roberto Besmonte, Apolinario Gagahina, Aidam (sic)
Opena, Steve C. Sancho Ester Cairo, and Mary B. Nadala to
their former respective positions or any substantial equivalent
positions if already filled up, without loss of seniority right and
privileges but with limited backwages of six (6) months except
complainant Leodegario de Guzman.
All other claims and prayers are hereby denied for lack of
merit.
SO ORDERED.
On 19 July 1989, complainants (herein private respondents) filed a
Motion For Issuance of a Writ of Execution2 pursuant to the above-
quoted Section 12 of R.A. No. 6715.
On 21 July 1989, petitioner filed its Appeal.3
On 26 July 1989, the complainants, except Flor Rayos del Sol, filed a
Partial Appeal.4
197
On 10 August 1989, complainant Flor Rayos del Sol filed a Partial
Appeal.5
On 29 August 1989, petitioner filed an Opposition6 to the motion for
execution alleging that Section 12 of R.A. No. 6715 on execution
pending appeal cannot be applied retroactively to cases pending at the
time of its effectivity because it does not expressly provide that it shall
be given retroactive effect7 and to give retroactive effect to Section 12
thereof to pending cases would not only result in the imposition of an
additional obligation on petitioner but would also dilute its right to
appeal since it would be burdened with the consequences of
reinstatement without the benefit of a final judgment. In their Reply8
filed on 1 September 1989, complainants argued that R.A. No. 6715 is
not sought to be given retroactive effect in this case since the decision
to be executed pursuant to it was rendered after the effectivity of the
Act. The said law took effect on 21 March 1989, while the decision
was rendered on 22 June 1989.
Petitioner submitted a Rejoinder to the Reply on 5 September 1989.9
On 5 October 1989, the Labor Arbiter issued an Order granting the
motion for execution and the issuance of a partial writ of execution10
as far as reinstatement of herein complainants is concerned in
consonance with the provision of Section 2 of the rules particularly the
last sentence thereof.
In this Order, the Labor Arbiter also made reference to Section 17 of
the NLRC Interim Rules in this wise:
Since Section 17 of the said rules made mention of appeals
filed on or after March 21, 1989, but prior to the effectivity of
these interim rules which must conform with the requirements
as therein set forth (Section 9) or as may be directed by the
Commission, it obviously treats of decisions of Labor Arbiters
before March 21,1989. With more reason these interim rules
be made to apply to the instant case since the decision hereof
(sic) was rendered thereafter.11
Unable to accept the above Order, petitioner filed the instant petition
on 26 October 198912 raising the issues adverted to in the
introductory portion of this decision under the following assignment
of errors:
A. THE LABOR ARBITER A QUO AND THE NLRC, IN ORDERING
THE REINSTATEMENT OF THE PRIVATE RESPONDENTS PENDING
APPEAL AND IN PROVIDING FOR SECTION 2 OF THE INTERIM
RULES, RESPECTIVELY, ACTED WITHOUT AND IN EXCESS OF
JURISDICTION SINCE THE BASIS FOR SAID ORDER AND INTERIM
RULE, i.e., SECTION 12 OF R.A. 6715 IS VIOLATIVE OF THE
CONSTITUTIONAL GUARANTY OF DUE PROCESS IT BEING
OPPRESSIVE AND UNREASONABLE.
B. GRANTING ARGUENDO THAT THE PROVISION IN(SIC)
REINSTATEMENT PENDING APPEAL IS VALID, NONETHELESS, THE
LABOR ARBITER A QUO AND THE NLRC STILL ACTED IN EXCESS
AND WITHOUT JURISDICTION IN RETROACTIVELY APPLYING SAID
PROVISION TO PENDING LABOR CASES.
In Our resolution of 7 March 1989, We required the respondents to
comment on the petition.
Respondent NLRC, through the Office of the Solicitor General, filed its
Comment on 20 November 1989.13 Meeting squarely the issues raised
by petitioner, it submits that the provision concerning the mandatory
and automatic reinstatement of an employee whose dismissal is found
unjustified by the labor arbiter is a valid exercise of the police power
of the state and the contested provision "is then a police legislation."
As regards the retroactive application thereof, it maintains that being
merely procedural in nature, it can apply to cases pending at the time
of its effectivity on the theory that no one can claim a vested right in a
rule of procedure. Moreover, such a law is compatible with the
constitutional provision on protection to labor.
On 11 December 1989, private respondents filed a Manifestation14
informing the Court that they are adopting the Comment filed by the
Solicitor General and stressing that petitioner failed to comply with
the requisites for a valid petition for certiorari under Rule 65 of the
Rules of Court.
198
On 20 December 1989, petitioner filed a Rejoinder15 to the Comment
of the Solicitor General.
In the resolution of 11 January 1990,16 We considered the Comments
as respondents' Answers, gave due course to the petition, and directed
that the case be calendared for deliberation.
In urging Us to declare as unconstitutional that portion of Section 223
of the Labor Code introduced by Section 12 of R.A. No. 6715, as well
as the implementing provision covered by Section 2 of the NLRC
Interim Rules, allowing immediate execution, even pending appeal, of
the reinstatement aspect of a decision of a labor arbiter reinstating a
dismissed or separated employee, petitioner submits that said portion
violates the due process clause of the Constitution in that it is
oppressive and unreasonable. It argues that a reinstatement pending
appeal negates the right of the employer to self-protection for it has
been ruled that an employer cannot be compelled to continue in
employment an employee guilty of acts inimical to the interest of the
employer; the right of an employer to dismiss is consistent with the
legal truism that the law, in protecting the rights of the laborer,
authorizes neither the oppression nor the destruction of the employer.
For, social justice should be implemented not through mistaken
sympathy for or misplaced antipathy against any group, but even-
handedly and fairly.17
To clinch its case, petitioner tries to demonstrate the oppressiveness of
reinstatement pending appeal by portraying the following
consequences: (a) the employer would be compelled to hire additional
employees or adjust the duties of other employees simply to have
someone watch over the reinstated employee to prevent the
commission of further acts prejudicial to the employer, (b)
reinstatement of an undeserving, if not undesirable, employee may
demoralize the rank and file, and (c) it may encourage and embolden
not only the reinstated employees but also other employees to commit
similar, if not graver infractions.
These rationalizations and portrayals are misplaced and are purely
conjectural which, unfortunately, proceed from a misunderstanding of
the nature and scope of the relief of execution pending appeal.
Execution pending appeal is interlinked with the right to appeal. One
cannot be divorced from the other. The latter may be availed of by the
losing party or a party who is not satisfied with a judgment, while the
former may be applied for by the prevailing party during the pendency
of the appeal. The right to appeal, however, is not a constitutional,
natural or inherent right. It is a statutory privilege of statutory
origin18 and, therefore, available only if granted or provided by
statute. The law may then validly provide limitations or qualifications
thereto or relief to the prevailing party in the event an appeal is
interposed by the losing party. Execution pending appeal is one such
relief long recognized in this jurisdiction. The Revised Rules of Court
allows execution pending appeal and the grant thereof is left to the
discretion of the court upon good reasons to be stated in a special
order.19
Before its amendment by Section 12 of R.A. No. 6715, Article 223 of
the Labor Code already allowed execution of decisions of the NLRC
pending their appeal to the Secretary of Labor and Employment.
In authorizing execution pending appeal of the reinstatement aspect of
a decision of the Labor Arbiter reinstating a dismissed or separated
employee, the law itself has laid down a compassionate policy which,
once more, vivifies and enhances the provisions of the 1987
Constitution on labor and the working-man.
These provisions are the quintessence of the aspirations of the
workingman for recognition of his role in the social and economic life
of the nation, for the protection of his rights, and the promotion of his
welfare. Thus, in the Article on Social Justice and Human Rights of the
Constitution,20 which principally directs Congress to give highest
priority to the enactment of measures that protect and enhance the
right of all people to human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities by equitably
diffusing wealth and political power for the common good, the State is
mandated to afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and
equality of employment opportunities for all; to guarantee the rights
of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to
strike in accordance with law, security of tenure, human conditions of
199
work, and a living wage, to participate in policy and decision-making
processes affecting their rights and benefits as may be provided by
law; and to promote the principle of shared responsibility between
workers and employers and the preferential use of voluntary modes in
settling disputes. Incidentally, a study of the Constitutions of various
nations readily reveals that it is only our Constitution which devotes a
separate article on Social Justice and Human Rights. Thus, by no less
than its fundamental law, the Philippines has laid down the strong
foundations of a truly just and humane society. This Article addresses
itself to specified areas of concern labor, agrarian and natural
resources reform, urban land reform and housing, health, working
women, and people's organizations and reaches out to the
underprivileged sector of society, for which reason the President of the
Constitutional Commission of 1986, former Associate Justice of this
Court Cecilia Muñoz-Palma, aptly describes this Article as the "heart of
the new Charter."21
These duties and responsibilities of the State are imposed not so much
to express sympathy for the workingman as to forcefully and
meaningfully underscore labor as a primary social and economic force,
which the Constitution also expressly affirms With equal intensity.22
Labor is an indispensable partner for the nation's progress and
stability.
If in ordinary civil actions execution of judgment pending appeal is
authorized for reasons the determination of which is merely left to the
discretion of the judge, We find no plausible reason to withhold it in
cases of decisions reinstating dismissed or separated employees. In
such cases, the poor employees had been deprived of their only source
of livelihood, their only means of support for their family their very
lifeblood. To Us, this special circumstance is far better than any other
which a judge, in his sound discretion, may determine. In short, with
respect to decisions reinstating employees, the law itself has
determined a sufficiently overwhelming reason for its execution
pending appeal.
The validity of the questioned law is not only supported and sustained
by the foregoing considerations. As contended by the Solicitor
General, it is a valid exercise of the police power of the State.
Certainly, if the right of an employer to freely discharge his employees
is subject to regulation by the State, basically in the exercise of its by the courts for its decision, the constitutionality of the challenged
permanent police power on the theory that the preservation of the law will not be touched upon and the case will be decided on other
lives of the citizens is a basic duty of the State, that is more vital than available grounds.28
the preservation of corporate profits.23 Then, by and pursuant to the
same power, the State may authorize an immediate implementation, The issue concerning Section 17 of the NLRC Interim Rules does not
pending appeal, of a decision reinstating a dismissed or separated deserve a measure of attention. The reference to it in the Order of the
employee since that saving act is designed to stop, although Labor Arbiter of 5 October 1989 was unnecessary since the procedure
temporarily since the appeal may be decided in favor of the appellant, of the appeal proper is not involved in this case. Moreover, the
a continuing threat or danger to the survival or even the life of the questioned interim rules of the NLRC, promulgated on 8 August 1989,
dismissed or separated employee and its family. can validly be given retroactive effect. They are procedural or
remedial in character, promulgated pursuant to the authority vested
The charge then that the challenged law as well as the implementing upon it under Article 218(a) of the Labor Code of the Philippines, as
rule are unconstitutional is absolutely baseless.1âwphi1 Laws are amended. Settled is the rule that procedural laws may be given
presumed constitutional.24 To justify nullification of a law, there must retroactive effect.29 There are no vested rights in rules of procedure.
be a clear and unequivocal breach of the Constitution, not a doubtful 30 A remedial statute may be made applicable to cases pending at the
and argumentative implication; a law shall not be declared invalid time of its enactment.31
unless the conflict with the constitution is clear beyond reasonable
doubt.25 In Parades, et al. vs. Executive Secretary26 We stated: WHEREFORE, the petition is hereby DISMISSED for lack of merit.
Costs against petitioner.
2. For one thing, it is in accordance with the settled doctrine that
between two possible constructions, one avoiding a finding of SO ORDERED.
unconstitutionality and the other yielding such a result, the former is
to be preferred. That which will save, not that which will destroy,
commends itself for acceptance. After all, the basic presumption all
these years is one of validity. The onerous task of proving otherwise is
on the party seeking to nullify a statute. It must be proved by clear
and convincing evidence that there is an infringement of a
constitutional provision, save in those cases where the challenged act
is void on its face. Absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, does not suffice.
Justice Malcolm's aphorism is apropos: To doubt is to sustain.27

The reason for this:

... can be traced to the doctrine of separation of powers which enjoins

on each department a proper respect for the acts of the other
departments. ... The theory is that, as the joint act of the legislative
and executive authorities, a law is supposed to have been carefully
studied and determined to be constitution before it was finally
enacted. Hence, as long as there is some other basis that can be used
200
 G.R. No. 115044 January 27, 1995
HON. ALFREDO S. LIM, in his capacity as Mayor of Manila, and
the City of Manila, petitioners,
vs.
HON. FELIPE G. PACQUING, as Judge, branch 40, Regional Trial
Court of Manila and ASSOCIATED CORPORATION, respondents.
G.R. No. 117263 January 27, 1995
TEOFISTO GUINGONA, JR. and DOMINADOR R. CEPEDA,
petitioners,
vs.
HON. VETINO REYES and ASSOCIATED DEVELOPMENT
CORPORATION, respondents.
PADILLA, J.:
These two (2) cases which are inter-related actually involve simple
issues. if these issues have apparently become complicated, it is not by
reason of their nature because of the events and dramatis personae
involved.
The petition in G.R. No. 115044 was dismissed by the First Division of
this Court on 01 September 1994 based on a finding that there was
"no abuse of discretion, much less lack of or excess of jurisdiction, on
the part of respondent judge [Pacquing]", in issuing the questioned
orders. Judge Pacquing had earlier issued in Civil Case No. 88-45660,
RTC of Manila, Branch 40, the following orders which were assailed
by the Mayor of the City of Manila, Hon. Alfredo S. Lim, in said G.R.
No. 115044:
a. order dated 28 March 1994 directing Manila mayor Alfredo S.
Lim to issue the permit/license to operate the jai-alai in favor of
Associated Development Corporation (ADC).
b. order dated 11 April 1994 directing mayor Lim to explain why
he should not be cited for contempt for non-compliance with the order
dated 28 March 1994.
201
c. order dated 20 April 1994 reiterating the previous order
directing Mayor Lim to immediately issue the permit/license to
Associated Development Corporation (ADC).
The order dated 28 march 1994 was in turn issued upon motion by
ADC for execution of a final judgment rendered on 9 September 1988
which ordered the Manila Mayor to immediately issue to ADC the
permit/license to operate the jai-alai in Manila, under Manila
Ordinance No. 7065.
On 13 September 1994, petitioner Guingona (as executive secretary)
issued a directive to then chairman of the Games and Amusements
Board (GAB) Francisco R. Sumulong, jr. to hold in abeyance the grant
of authority, or if any had been issued, to withdraw such grant of
authority, to Associated Development Corporation to operate the jai-
alai in the City of Manila, until the following legal questions are
properly resolved:
1. Whether P.D. 771 which revoked all existing Jai-Alai
franchisers issued by local governments as of 20 August 1975
is unconstitutional.
2. Assuming that the City of Manila had the power on 7
September 1971 to issue a Jai-Alai franchise to Associated
Development Corporation, whether the franchise granted is
valied considering that the franchise has no duration, and
appears to be granted in perpetuity.
3. Whether the City of Manila had the power to issue a
Jai-Alai franchise to Associated Development Corporation on 7
September 1971 in view of executive Order No. 392 dated 1
January 1951 which transferred from local governments to the
Games and Amusements Board the power to regulate Jai-Alai.1
On 15 September 1994, respondent Associated Development
Corporation (ADC) filed a petition for prohibition, mandamus,
injunction and damages with prayer for temporary restraining order
and/or writ of preliminary injunction in the Regional Trial Court of
Manila against petitioner Guingona and then GAB chairman
Sumulong, docketed as Civil Case No. 94-71656, seeking to prevent
GAB from withdrawing the provisional authority that had earlier been
granted to ADC. On the same day, the RTC of Manila, Branch 4,
through presiding Judge Vetino Reyes, issued a temporary restraining
order enjoining the GAB from withdrawing ADC's provisional
authority. This temporary restraining order was converted into a writ
of preliminary injunction upon ADC's posting of a bond in the amount
of P2,000,000.00.2
Subsequently, also in G.R. No. 115044, the Republic of the Philippines,
through the Games and Amusements Board, filed a "Motion for
Intervention; for Leave to File a Motion for reconsideration in
Intervention; and to Refer the case to the Court En Banc" and later a
"Motion for Leave to File Supplemental Motion for Reconsideration-in-
Intervention and to Admit Attached Supplemental Motion for
Reconsideration-in-Intervention".
In an En Banc Resolution dated 20 September 1994, this Court
referred G.R. No. 115044 to the Court En Banc and required the
respondents therein to comment on the aforementioned motions.
Meanwhile, Judge Reyes on 19 October 1994 issued another order,
this time, granting ADC a writ of preliminary mandatory injunction
against Guingona and GAB to compel them to issue in favor of ADC
the authority to operate jai-alai.
Guingona, as executive secretary, and Dominador Cepeda, Jr. as the
new GAB chairman, then filed the petition in G.R. No. 117263
assailing the abovementioned orders of respondent Judge Vetino
Reyes.
On 25 October 1994, in G.R. No. 117263, this Court granted
petitioner's motion for leave to file supplemental petition and to admit
attached supplemental petition with urgent prayer for restraining
order. The Court further required respondents to file their comment on
the petition and supplemental petition with urgent prayer for
restraining order. The Court likewise set the case and all incidents
thereof for hearing on 10 November 1994.
202
At the hearing on 10 November 1994, the issues to be resolved were
formulated by the Court as follows:
1. whether or not intervention by the Republic of the
Philippines at this stage of the proceedings is proper;
2. assuming such intervention is proper, whether or not
the Associated Development Corporation has a valid and
subsisting franchise to maintain and operate the jai-alai;
3. whether or not there was grave abuse of discretion
committed by respondent Judge Reyes in issuing the
aforementioned temporary restraining order (later writ of
preliminary injunction); and
4. whether or not there was grave abuse of discretion
committed by respondent Judge Reyes in issuing the
aforementioned writ of preliminary mandatory injunction.
On the issue of the propriety of the intervention by the Republic of the
Philippines, a question was raised during the hearing on 10 November
1994 as to whether intervention in G.R. No. 115044 was the proper
remedy for the national government to take in questioning the
existence of a valid ADC franchise to operate the jai-alai or whether a
separate action for quo warranto under Section 2, Rule 66 of the Rules
of Court was the proper remedy.
We need not belabor this issue since counsel for respondent ADC
agreed to the suggestion that this Court once and for all settle all
substantive issues raised by the parties in these cases. Moreover, this
Court can consider the petition filed in G.R. No. 117263 as one for
quo warranto which is within the original jurisdiction of the Court
under section 5(1), Article VIII of the Constitution. 3
On the propriety of intervention by the Republic, however, it will be
recalled that this Court in Director of Lands v. Court of Appeals (93
SCRA 238) allowed intervention even beyond the period prescribed in
Section 2 Rule 12 of the Rules of Court. The Court ruled in said case
that a denial of the motions for intervention would "lead the Court to
commit an act of injustice to the movants, to their successor-in-interest
and to all purchasers for value and in good faith and thereby open the
door to fraud, falsehood and misrepresentation, should intervenors'
claim be proven to be true."
In the present case, the resulting injustice and injury, should the
national government's allegations be proven correct, are manifest,
since the latter has squarely questioned the very existence of a valid
franchise to maintain and operate the jai-alai (which is a gambling
operation) in favor of ADC. As will be more extensively discussed later,
the national government contends that Manila Ordinance No. 7065
which purported to grant to ADC a franchise to conduct jai-alai
operations is void and ultra vires since Republic Act No. 954, approved
on 20 June 1953, or very much earlier than said Ordinance No. 7065,
the latter approved 7 September 1971, in Section 4 thereof, requires a
legislative franchise, not a municipal franchise, for the operation of jai-
alai. Additionally, the national government argues that even assuming,
arguendo, that the abovementioned ordinance is valid, ADC's
franchise was nonetheless effectively revoked by Presidential decree
No. 771, issued on 20 August 1975, Sec. 3 of which expressly revoked
all existing franchises and permits to operate all forms of gambling
facilities (including the jai-alai) issued by local governments.
On the other hand, ADC's position is that Ordinance No. 7065 was
validly enacted by the City of Manila pursuant to its delegated powers
under it charter, Republic Act No. 409. ADC also squarely assails the
constitutionality of PD No. 771 as violative of the equal protection and
non-impairment clauses of the Constitution. In this connection,
counsel for ADC contends that this Court should really rule on the
validity of PD No. 771 to be able to determine whether ADC continues
to possess a valid franchise.
It will undoubtedly be a grave injustice to both parties in this case if
this Court were to shirk from ruling on the issue of constitutionality of
PD No. 771. Such issue has, in our view, become the very lis mota in
resolving the present controversy, in view of ADC's insistence that it
was granted a valid and legal franchise by Ordinance No. 7065 to
operate the jai-alai.
The time-honored doctrine is that all laws (PD No. 771 included) are
presumed valid and constitutional until or unless otherwise ruled by
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this Court. Not only this; Article XVIII Section 3 of the Constitution
states:
Sec. 3. A l l e x i s t i n g l a w s , d e c r e e s , e x e c u t i v e o r d e r s ,
proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall remain
operative until amended, repealed or revoked.
There is nothing on record to show or even suggest that PD No. 771
has been repealed, altered or amended by any subsequent law or
presidential issuance (when the executive still exercised legislative
powers).
Neither can it be tenably stated that the issue of the continued
existence of ADC's franchise by reason of the unconstitutionality of PD
No. 771 was settled in G.R. No. 115044, for the decision of the Court's
First Division in said case, aside from not being final, cannot have the
effect of nullifying PD No. 771 as unconstitutional, since only the
Court En Banc has that power under Article VIII, Section 4(2) of the
Constitution.4
And on the question of whether or not the government is estopped
from contesting ADC's possession of a valid franchise, the well-settled
rule is that the State cannot be put in estoppel by the mistakes or
errors, if any, of its officials or agents (Republic v. Intermediate
Appellate Court, 209 SCRA 90)
Consequently, in the light of the foregoing expostulation, we conclude
that the republic (in contra distinction to the City of Manila) may be
allowed to intervene in G.R. No. 115044. The Republic is intervening
in G.R. No. 115044 in the exercise, not of its business or proprietary
functions, but in the exercise of its governmental functions to protect
public morals and promote the general welfare.
II
Anent the question of whether ADC has a valid franchise to operate
the Jai-Alai de Manila, a statement of the pertinent laws is in order.
1. The Charter of the City of Manila was enacted by Congress on
18 June 1949. Section 18 thereof provides:
Sec. 18. Legislative Powers. — The Municipal Board shall have
the following legislative powers:
xxx xxx xxx
(jj) To tax, license, permit and regulate wagers or betting by the
public on boxing, sipa, bowling, billiards, pools, horse and dog
races, cockpits, jai-alai, roller or ice-skating on any sporting or
athletic contests, as well as grant exclusive rights to
establishments for this purpose, notwithstanding any existing law
to the contrary.
2. On 1 January 1951, Executive Order No. 392 was issued
transferring the authority to regulate jai-alais from local government
to the Games and Amusements Board (GAB).
3. On 20 June 1953, Congress enacted Republic Act No. 954, entitled
"An Act to Prohibit With Horse Races and Basque Pelota Games (Jai-
Alai), And To Prescribe Penalties For Its Violation". The provisions of
Republic Act No. 954 relating to jai-alai are as follows:
Sec. 4. No person, or group of persons other than the operator
or maintainer of a fronton with legislative franchise to conduct
basque pelota games (Jai-alai), shall offer, to take or arrange
bets on any basque pelota game or event, or maintain or use a
totalizator or other device, method or system to bet or gamble on
any basque pelota game or event. (emphasis supplied).
Sec. 5. No person, operator or maintainer of a fronton with
legislative franchise to conduct basque pelota games shall offer,
take, or arrange bets on any basque pelota game or event, or
maintain or use a totalizator or other device, method or system
to bet or gamble on any basque pelota game or event outside the
place, enclosure, or fronton where the basque pelota game is held.
(emphasis supplied).
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4. On 07 September 1971, however, the Municipal Board of Manila
nonetheless passed Ordinance No. 7065 entitled "An Ordinance
Authorizing the Mayor To Allow And Permit The Associated
Development Corporation To Establish, Maintain And Operate A Jai-
Alai In The City Of Manila, Under Certain Terms And Conditions And
For Other Purposes."
5. On 20 August 1975, Presidential Decree No. 771 was issued by
then President Marcos. The decree, entitled "Revoking All Powers and
Authority of Local Government(s) To Grant Franchise, License or
Permit And Regulate Wagers Or Betting By The Public On Horse And
Dog Races, Jai-Alai Or Basque Pelota, And Other Forms Of Gambling",
in Section 3 thereof, expressly revoked all existing franchises and
permits issued by local governments.
6. On 16 October 1975, Presidential Decree No. 810, entitled "An
Act granting The Philippine Jai-Alai And Amusement Corporation A
Franchise To Operate, Construct And Maintain A Fronton For Basque
Pelota And Similar Games of Skill In THE Greater Manila Area," was
promulgated.
7 On 08 May 1987, then President Aquino, by virtue of Article
XVIII, Section 6, of the Constitution, which allowed the incumbent
legislative powers until the first Congress was convened, issued
Executive Order No. 169 expressly repealing PD 810 and revoking and
cancelling the franchise granted to the Philippine Jai-Alai and
Amusement Corporation.
Petitioners in G.R. No. 117263 argue that Republic Act No. 954
effectively removed the power of the Municipal Board of Manila to
grant franchises for gambling operations. It is argued that the term
"legislative franchise" in Rep. Act No. 954 is used to refer to franchises
issued by Congress.
On the other hand, ADC contends that Republic Act N. 409 (Manila
Chapter) gives legislative powers to the Municipal Board to grant
franchises, and since Republic Act No. 954 does not specifically qualify
the word "legislative" as referring exclusively to Congress, then Rep.
Act No. 954 did not remove the power of the Municipal Board under
Section 18(jj) of Republic Act No. 409 and consequently it was within
the power of the City of Manila to allow ADC to operate the jai-alai in
the City of Manila.
On this point, the government counter-argues that the term "legislative
powers" is used in Rep. Act No. 409 merely to distinguish the powers
under Section 18 of the law from the other powers of the Municipal
Board, but that the term "legislative franchise" in Rep. Act No. 954
refers to a franchise granted solely by Congress.
Further, the government argues that Executive Order No. 392 dated
01 January 1951 transferred even the power to regulate Jai-Alai from
the local governments to the Games and Amusements Board (GAB), a
national government agency.
It is worthy of note that neither of the authorities relied upon by ADC
to support its alleged possession of a valid franchise, namely the
Charter of the City of Manila (Rep. Act No. 409) and Manila
Ordinance No. 7065 uses the word "franchise". Rep. Act No. 409
empowers the Municipal Board of Manila to "tax, license, permit and
regulate wagers or betting" and to "grant exclusive rights to
establishments", while Ordinance No. 7065 authorized the Manila City
Mayor to "allow and permit" ADC to operate jai-alai facilities in the
City of Manila.
It is clear from the foregoing that Congress did not delegate to the City
of Manila the power "to franchise" wagers or betting, including the jai-
alai, but retained for itself such power "to franchise". What Congress
delegated to the City of Manila in Rep. Act No. 409, with respect to
wagers or betting, was the power to "license, permit, or regulate"
which therefore means that a license or permit issued by the City of
Manila to operate a wager or betting activity, such as the jai-alai where
bets are accepted, would not amount to something meaningful
UNLESS the holder of the permit or license was also FRANCHISED by
the national government to so operate. Moreover, even this power to
license, permit, or regulate wagers or betting on jai-alai was removed
from local governments, including the City of Manila, and transferred
to the GAB on 1 January 1951 by Executive Order No. 392. The net
result is that the authority to grant franchises for the operation of jai-
alai frontons is in Congress, while the regulatory function is vested in
the GAB.
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In relation, therefore, to the facts of this case, since ADC has no
franchise from Congress to operate the jai-alai, it may not so operate
even if its has a license or permit from the City Mayor to operate the
jai-alai in the City of Manila.
It cannot be overlooked, in this connection, that the Revised Penal
Code punishes gambling and betting under Articles 195 to 199
thereof. Gambling is thus generally prohibited by law, unless another
law is enacted by Congress expressly exempting or excluding certain
forms of gambling from the reach of criminal law. Among these form
the reach of criminal law. Among these forms of gambling allowed by
special law are the horse races authorized by Republic Acts Nos. 309
and 983 and gambling casinos authorized under Presidential Decree
No. 1869.
While jai-alai as a sport is not illegal per se, the accepting of bets or
wagers on the results of jai-alai games is undoubtedly gambling and,
therefore, a criminal offense punishable under Articles 195-199 of the
Revised Penal Code, unless it is shown that a later or special law had
been passed allowing it. ADC has not shown any such special law.
Republic Act No. 409 (the Revised Charter of the City of Manila)
which was enacted by Congress on 18 June 1949 gave the Municipal
Board certain delegated legislative powers under Section 18. A perusal
of the powers enumerated under Section 18 shows that these powers
are basically regulatory in nature.5 The regulatory nature of these
powers finds support not only in the plain words of the enumerations
under Section 28 but also in this Court's ruling in People v. Vera (65
Phil. 56).
In Vera, this Court declared that a law which gives the Provincial
Board the discretion to determine whether or not a law of general
application (such as, the Probation law-Act No. 4221) would or would
not be operative within the province, is unconstitutional for being an
undue delegation of legislative power.
From the ruling in Vera, it would be logical to conclude that, if ADC's
arguments were to prevail, this Court would likewise declare Section
18(jj) of the Revised Charter of Manila unconstitutional for the power
it would delegate to the Municipal Board of Manila would give the
latter the absolute and unlimited discretion to render the penal code
provisions on gambling inapplicable or inoperative to persons or
entities issued permits to operate gambling establishments in the City
of Manila.
We need not go to this extent, however, since the rule is that laws
must be presumed valid, constitutional and in harmony with other
laws. Thus, the relevant provisions of Rep. Acts Nos. 409 and 954 and
Ordinance No. 7065 should be taken together and it should then be
clear that the legislative powers of the Municipal Board should be
understood to be regulatory in nature and that Republic Act No. 954
should be understood to refer to congressional franchises, as a
necessity for the operation of jai-alai.
We need not, however, again belabor this issue further since the task
at hand which will ultimately, and with finality, decide the issues in
this case is to determine whether PD No. 771 validly revoked ADC's
franchise to operate the jai-alai, assuming (without conceding) that it
indeed possessed such franchise under Ordinance No. 7065.
ADC argues that PD No. 771 is unconstitutional for being violative of
the equal protection and non-impairment provisions of the
Constitution. On the other hand, the government contends that PD
No. 771 is a valid exercise of the inherent police power of the State.
The police power has been described as the least limitable of the
inherent powers of the State. It is based on the ancient doctrine —
salus populi est suprema lex (the welfare of the people is the supreme
law.) In the early case of Rubi v. Provincial Board of Mindoro (39 Phil.
660), this Court through Mr. Justice George A. Malcolm stated thus:
The police power of the State . . . is a power co-extensive with
self-protection, and is not inaptly termed the "law of overruling
necessity." It may be said to be that inherent and plenary
power in the State which enables it to prohibit all things
hurtful to the comfort, safety and welfare of society. Carried
onward by the current of legislation, the judiciary rarely
attempts to dam the onrushing power of legislative discretion,
provided the purposes of the law do not go beyond the great
206
principles that mean security for the public welfare or do not
arbitrarily interfere with the right of the individual.
In the matter of PD No. 771, the purpose of the law is clearly stated in
the "whereas clause" as follows:
WHEREAS, it has been reported that in spite of the current
drive of our law enforcement agencies against vices and illegal
gambling, these social ills are still prevalent in many areas of
the country;
WHEREAS, there is need to consolidate all the efforts of the
government to eradicate and minimize vices and other forms
of social ills in pursuance of the social and economic
development program under the new society;
WHEREAS, in order to effectively control and regulate wagers
or betting by the public on horse and dog races, jai-alai and
other forms of gambling there is a necessity to transfer the
issuance of permit and/or franchise from local government to
the National Government.
It cannot be argued that the control and regulation of gambling do not
promote public morals and welfare. Gambling is essentially
antagonistic and self-reliance. It breeds indolence and erodes the value
of good, honest and hard work. It is, as very aptly stated by PD No.
771, a vice and a social ill which government must minimize (if not
eradicate) in pursuit of social and economic development.
In Magtajas v. Pryce Properties Corporation (20 July 1994, G.R. No.
111097), this Court stated thru Mr. Justice Isagani A. Cruz:
In the exercise of its own discretion, the legislative power may prohibit
gambling altogether or allow it without limitation or it may prohibit
some forms of gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such
choices, Congress has consulted its own wisdom, which this Court has
no authority to review, much less reverse. Well has it been said that
courts do not sit to resolve the merits of conflicting theories. That is
the prerogative of the political departments. It is settled that questions
regarding wisdom, morality and practicability of statutes are not
addressed to the judiciary but may be resolved only by the executive
and legislative departments, to which the function belongs in our
scheme of government. (Emphasis supplied)
Talks regarding the supposed vanishing line between right and
privilege in American constitutional law has no relevance in the
context of these cases since the reference there is to economic
regulations. On the other hand, jai-alai is not a mere economic activity
which the law seeks to regulate. It is essentially gambling and whether
it should be permitted and, if so, under what conditions are questions
primarily for the lawmaking authority to determine, talking into
account national and local interests. Here, it is the police power of the
State that is paramount.
ADC questions the motive for the issuance of PD Nos. 771. Clearly,
however, this Court cannot look into allegations that PD No. 771 was
enacted to benefit a select group which was later given authority to
operate the jai-alai under PD No. 810. The examination of legislative
motivation is generally prohibited. (Palmer v. Thompson, 403 U.S.
217, 29 L. Ed. 2d 438 [1971] per Black, J.) There is, the first place,
absolute lack of evidence to support ADC's allegation of improper
motivation in the issuance of PD No. 771. In the second place, as
already averred, this Court cannot go behind the expressed and
proclaimed purposes of PD No. 771, which are reasonable and even
laudable.
It should also be remembered that PD No. 771 provides that the
national government can subsequently grant franchises "upon proper
application and verification of the qualifications of the applicant." ADC
has not alleged that it filed an application for a franchise with the
national government subsequent to the enactment of PD No. 771;
thus, the allegations abovementioned (of preference to a select group)
are based on conjectures, speculations and imagined biases which do
not warrant the consideration of this Court.
On the other hand, it is noteworthy that while then president Aquino
issued Executive Order No. 169 revoking PD No. 810 (which granted a
franchise to a Marcos-crony to operate the jai-alai), she did not scrap
207
or repeal PD No. 771 which had revoked all franchises to operate jai-
alais issued by local governments, thereby re-affirming the
government policy that franchises to operate jai-alais are for the
national government (not local governments) to consider and
approve.
On the alleged violation of the non-impairment and equal protection
clauses of the Constitution, it should be remembered that a franchise
is not in the strict sense a simple contract but rather it is more
importantly, a mere privilege specially in matters which are within the
government's power to regulate and even prohibit through the
exercise of the police power. Thus, a gambling franchise is always
subject to the exercise of police power for the public welfare.
In RCPI v. NTC (150 SCRA 450), we held that:
A franchise started out as a "royal privilege or (a) branch of the
King's prerogative, subsisting in the hands of a subject." This
definition was given by Finch, adopted by Blackstone, and
accepted by every authority since . . . Today, a franchise being
merely a privilege emanating from the sovereign power of the
state and owing its existence to a grant, is subject to regulation
by the state itself by virtue of its police power through its
administrative agencies.
There is a stronger reason for holding ADC's permit to be a mere
privilege because jai-alai, when played for bets, is pure and simple
gambling. To analogize a gambling franchise for the operation of a
public utility, such as public transportation company, is to trivialize the
great historic origin of this branch of royal privilege.
As earlier noted, ADC has not alleged ever applying for a franchise
under the provisions of PD No. 771. and yet, the purpose of PD No.
771 is quite clear from its provisions, i.e., to give to the national
government the exclusive power to grant gambling franchises. Thus,
all franchises then existing were revoked but were made subject to
reissuance by the national government upon compliance by the
applicant with government-set qualifications and requirements.
There was no violation by PD No. 771 of the equal protection clause
since the decree revoked all franchises issued by local governments
without qualification or exception. ADC cannot allege violation of the
equal protection clause simply because it was the only one affected by
the decree, for as correctly pointed out by the government, ADC was
not singled out when all jai-alai franchises were revoked. Besides, it is
too late in the day for ADC to seek redress for alleged violation of its
constitutional rights for it could have raised these issues as early as
1975, almost twenty 920) years ago.
issued and consequently there was grave abuse of discretion in issuing
them.
WHEREFORE, for the foregoing reasons, judgment is hereby rendered:
1. allowing the Republic of the Philippines to intervene in G.R. No.
115044.
2. declaring Presidential Decree No. 771 valid and constitutional.

Finally, we do not agree that Section 3 of PD No. 771 and the
requirement of a legislative franchise in Republic Act No. 954 are
"riders" to the two 92) laws and are violative of the rule that laws
should embrace one subject which shall be expressed in the title, as
argued by ADC. In Cordero v. Cabatuando (6 SCRA 418), this Court
ruled that the requirement under the constitution that all laws should
embrace only one subject which shall be expressed in the title is
sufficiently met if the title is comprehensive enough reasonably to
include the general object which the statute seeks to effect, without
expressing each and every end and means necessary or convenient for
the accomplishing of the objective.
III
3. declaring that respondent Associated Development corporation
(ADC) does not possess the required congressional franchise to
operate and conduct the jai-alai under Republic Act No. 954 and
Presidential Decree No. 771.
4. setting aside the writs of preliminary injunction and
preliminary mandatory injunction issued by respondent Judge Vetino
Reyes in civil Case No. 94-71656.
SO ORDERED.
Feliciano, Bidin, Regalado, Romero, Bellosillo and Mendoza, JJ.,
concur.

On the issue of whether or not there was grave abuse of discretion Narvasa, C.J. and Francisco, JJ., took no part.
committed by respondent Judge Reyes in issuing the temporary
restraining order (later converted to a writ of preliminary injunction)
and the writ of preliminary mandatory injunction, we hold and rule
there was.

Section 3, Rule 58 of the rules of Court provides for the grounds for
the issuance of a preliminary injunction. While ADC could allege these
grounds, respondent judge should have taken judicial notice of
Republic Act No. 954 and PD 771, under Section 1 rule 129 of the
Rules of court. These laws negate the existence of any legal right on
the part of ADC to the reliefs it sought so as to justify the issuance of a
writ of preliminary injunction. since PD No. 771 and Republic Act No.
954 are presumed valid and constitutional until ruled otherwise by the
Supreme Court after due hearing, ADC was not entitled to the writs

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