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DPWH vs Spouses Tecson
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 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
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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 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:
3|Page
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.]
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.
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]
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.
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.
4|Page
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 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.
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.
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:
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 an
express contract as to such rate of interest, shall be six percent (6%) per
annum.
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 Regulations for Non-Bank Financial Institutions are hereby
amended accordingly.
This Circular shall take effect on 01 July 2013.29
Accordingly, the prevailing interest rate for loans and forbearance of money
is six percent (6%) per annum, in the absence of an express contract as to
such rate of interest.
In summary, the interest rates applicable to loans and forbearance of money,
in the absence of an express contract as to such rate of interest, for the period
of 1940 to present are as follows:
Law, Rule and Regulations,
BSP Issuance Date of Effectivity Interest Rate
Act No. 2655 May 1, 1916 6%
CB Circular No. 416 July 29, 1974 12%
CB Circular No. 905 December 22, 1982 12%
CB Circular No. 799 July 1, 2013 6%
It is important to note, however, that interest shall be compounded at the
time judicial demand is made pursuant to Article 221230 of the Civil Code of
the Philippines, and sustained in Eastern Shipping Lines v. Court of Appeals,31
then later on in Nacar v. Gallery Frames,32 save for the reduction of interest
rate to 6% for loans or forbearance of money, thus:
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
5|Page
due shall itself earn legal interest from the time it is judicially demanded. In
the absence of stipulation, the rate of 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
Applying the foregoing law and jurisprudence, respondents-movants are
entitled to interest in the amount of One Million Seven Hundred Eighteen
Thousand Eight Hundred Forty-Eight Pesos and Thirty-Two Centavos
(₱1,718,848.32) as of September 30, 2014,34 computed as follows:
January 1, 194035 to July 28, 1974 P 10,553.4937
July 29, 1974 to March 16, 1995 26,126.3138
March 17, 199536to June 30, 2013 232,070.3339
July 1, 2013 to September 30, 2014 250,098.1940
Market Value of the Property at the time of taking including interest
P 518,848.32
Market value of the property at the time of
taking including interestP 518,848.32
Add: Exemplary damages 1,000.000.00
Attorney's fees 200,000.00
Total Amount of Interest due to Respondents-
Movants as of September 30, 2014
₱1,718,848.16
Considering that respondents-movants only resorted to judicial demand for
the payment of the fair market value of the land on March 17, 1995, it is only
then that the interest earned shall itself earn interest.
Lastly, from finality of the Court's Resolution on reconsideration until full
payment, the total amount due to respondents-movants shall earn a straight
six percent (6%) legal interest, pursuant to Circular No. 799 and the case of
Nacar. Such interest is imposed by reason of the Court's decision and takes
the nature of a judicial debt.
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 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
6|Page
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
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.
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
7|Page
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
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
8|Page
will not necessarily lead to the return of the property to the landowner. What
is left to the landowner is the right of compensation
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.
People vs Mario Mapa
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."
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
9|Page

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."
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.
People vs Patricio Amigo alias BEBOT
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, DIAPHRAGM
STOMACH, DUODENUM, PANCREAS AND MIDTRANVERSE COLON.
10 | P a g e
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:
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)
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
11 | P a g e
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, 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,
12 | P a g e
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 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
13 | P a g e
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.
CHAPTER 2
Remman Enterprises Inc. and Chamber of Real Estate Builders Association
vs. Professional Regulatory Board of Real Estate Service and Professional
Regulation Commission
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:
14 | P a g e
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.
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
15 | P a g e
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 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.
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
16 | P a g e
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 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
17 | P a g e
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 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.
18 | P a g e
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. 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
19 | P a g e
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.”
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 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
20 | P a g e

Although the equal protection clause of the Constitution does not forbid
classification, it is imperative that the classification should be based on real Since every law is presumed valid, the presumption of constitutionality can
and substantial differences having a reasonable relation to the subject of the be overcome only by the clearest showing that there was indeed an infraction
particular legislation.26 If classification is germane to the purpose of the law, of the Constitution, and only when such a conclusion is reached by the
concerns all members of the class, and applies equally to present and future required majority may the Court pronounce, in the discharge of the duty it
conditions, the classification does not violate the equal protection cannot escape, that the challenged act must be struck down.29
guarantee.27 Indeed, "all presumptions are indulged in favor of constitutionality; one who
R.A. No. 9646 was intended to provide institutionalized government support attacks a statute, alleging unconstitutionality must prove its invalidity beyond
for the development of "a corps of highly respected, technically competent, a reasonable doubt; that a law may work hardship does not render it
and disciplined real estate service practitioners, knowledgeable of unconstitutional; that if any reasonable basis may be conceived which
internationally accepted standards and practice of the profession."28 Real supports the statute, it will be upheld, and the challenger must negate all
estate developers at present constitute a sector that hires or employs the possible bases; that the courts are not concerned with the wisdom, justice,
largest number of brokers, salespersons, appraisers and consultants due to policy, or expediency of a statute; and that a liberal interpretation of the
the sheer number of products (lots, houses and condominium units) they constitution in favor of the constitutionality of legislation should be
advertise and sell nationwide. As early as in the ‘70s, there has been a adopted."30
proliferation of errant developers, operators or sellers who have reneged on WHEREFORE, the petition is DENIED. The Decision dated July 12, 2011 of the
their representation and obligations to comply with government regulations Regional Trial Court of Manila, Branch 42 in Civil Case No. 10-124776 is hereby
such as the provision and maintenance of subdivision roads, drainage, AFFIRMED and UPHELD.
sewerage, water system and other basic requirements. To protect the No pronouncement as to costs.
interest of home and lot buyers from fraudulent acts and manipulations SO ORDERED.
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.
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.
21 | P a g e
Norma A. Del Socorro vs Ernst Johan Brinkman Van Wilsem
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.
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.
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.
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.
On August 28, 2009, petitioner, through her counsel, sent a letter demanding
for support from respondent. However, respondent refused to receive the
letter.
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.
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.
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:
22 | P a g e
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.
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.
23 | P a g e
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 to petitioner for any financial support.
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 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 Philippine law, 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 take judicial 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
24 | P a g e
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 not liable 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.
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 longer be considered married to 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 to petitioner’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
25 | P a g e

or child. This shall include, but not limited to, the following acts committed present. Accordingly, the crime charged in the instant case has clearly not
with the purpose or effect of controlling or restricting the woman's or her prescribed.
child's movement or conduct: Given, however, that the issue on whether respondent has provided support
xxxx to petitioner’s child calls for an examination of the probative value of the
(2) Depriving or threatening to deprive the woman or her children of financial evidence presented, and the truth and falsehood of facts being admitted, we
support legally due her or her family, or deliberately providing the woman's hereby remand the determination of this issue to the RTC-Cebu which has
children insufficient financial support; x x x x jurisdiction over the case.
(i) Causing mental or emotional anguish, public ridicule or humiliation to the WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010
woman or her child, including, but not limited to, repeated verbal and and September 1, 2010, respectively, of the Regional Trial Court of the City of
emotional abuse, and denial of financial support or custody of minor children Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the
of access to the woman's child/children.51 same court to conduct further proceedings based on the merits of the case.
Under the aforesaid special law, the deprivation or denial of financial support SO ORDERED.
to the child is considered an act of violence against women and children.
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 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